When a treatment relationship exists, the physician must provide all necessary treatment to a patient unless the relationship is ended by the patient or by the physician, provided that t
Trang 1Even with legislation in these states, the costs of medical malpractice liability have increased, and, in some parts of the country, skyrocketed Doctors in some areas claim that liability insurance is so high that they refuse to accept patients, move their practice to another state, or even retire early Insurance companies that provide malpractice insurance claim that multi-million-dollar judgments in medical mal-practice cases, coupled with lawsuits deemed frivolous by the companies, have been the root cause of the increase in rates
Several states have considered and passed legislation under the pretext of major tort reform
California law provides a model that several states have followed In 1975, the California legislature enacted the Medical Injury Compensation Re-form Act (MICRA), which capped
non-econom-ic damages—whnon-econom-ich include damages for pain and suffering, and even death—at $250,000 Many states that have followed California’s lead have limited such damages to between $250,000 and
$350,000 In 2001, President GEORGE W BUSH called for major reform on a national level, requesting that Congress enact legislation that could create a national cap of $250,000 on non-economic damages in all medical malpractice cases These efforts failed Other proposals include limiting the recovery of attorney’s fees
in medical malpractice cases, restricting the liability of a doctor who provides emergency care, and limiting the recovery of attorneys in medical malpractice cases
These efforts are not without their critics
Skeptics point out that in some states, the cap
on non-economic damages has not resulted in lower premiums on malpractice insurance, and that bad business practices of insurance compa-nies have been as or more responsible for the rise in liability insurance premiums as the multi-million-dollar judgments Without major insurance reform, say these critics, the local and national tort reform efforts will not provide what they promise
Physician Malpractice Records
In the past, it was very difficult for patients to discover malpractice information about their physicians The federal government maintains the National Practitioners Data Bank, which lists doctors and malpractice claims in excess of
$20,000, along with state disciplinary records
Its list is not made available to the public, but it
is provided to state medical boards, hospitals,
and other organizations that grant credentials Because of the great demand by patients for this information, many states are enacting legisla-tion that makes it readily available For example, the state of Washington provides access to physician information through several sources: insurance company claims records, which are required by law to be reported to the state; the National Practitioners Data Bank; and the state board of medicine, which administers physician licensing and discipline Massachusetts created
a similar system, called the Physician’s Profiles Project, and other states, including Florida, California, and New York, are considering the same kind of initiative
A Physician’s Duty to Provide Medical Treatment
Medical malpractice dominates the headlines, but a more basic legal question involving medical care is the affirmative duty, if any, to provide medical treatment The historical rule
is that a physician has no duty to accept a patient, regardless of the severity of the illness
A physician’s relationship with a patient was understood to be a voluntary, contracted one Once the relationship was established, the physician was under a legal obligation to provide medical treatment and was a fiduciary in this respect (A fiduciary is a person with a duty to act primarily for the benefit of another.)
Once the physician-patient relationship exists, the physician can be held liable for an intentional refusal of care or treatment, under the theory of abandonment (Abandonment is
an intentional act; negligent lack of care or treatment is medical malpractice.) When a treatment relationship exists, the physician must provide all necessary treatment to a patient unless the relationship is ended by the patient or by the physician, provided that the physician gives the patient sufficient notice to seek another source of medical care Most doctors and hospitals routinely ensure that alternative sources of treatment—other doctors
or hospitals—are made available for patients whose care is being discontinued
The discontinuation of care involves signifi-cant economic issues Reimbursement proce-dures often limit or cut off the funding for a particular patient’s care Under the diagnosis-related group (DRG) system ofMEDICARE, part A,
42 U.S.C § 1395c, a hospital is paid a pre-set amount for the treatment of a particular
Trang 2diagnosis, regardless of the actual cost of
treatment Patients who are covered by private
insurance or HMOs may lose their coverage if
they fail to pay premiums Physicians and
hospitals must act carefully when this happens,
because the fiduciary nature of the relationship
between provider and patient is not changed by
a patient’s unexpected inability to pay Health
care providers must notify a patient and even
must help to secure alternative care when funds
are not reimbursed as expected
A Hospital’s Duty to Provide Medical
Treatment
The historical rule for hospitals is that they must
act reasonably in their decisions to treat patients
Hospitals must acknowledge that a common
practice of providing treatment to all emergency
patients creates among members of a
commu-nity an expectation that care will be provided
whenever a person seeks care in an
“unmistak-able emergency.” Seeking alternative care in a
time-sensitive emergency situation could result
in avoidable permanent injury or death, so it is
not surprising that hospitals are held to a more
flexible “reasonable duty” standard in their
admission of patients for treatment
Owing to the high cost of emergency room
care, many private hospitals in the early 1980s
began refusing to admit indigent patients and
instead had them transferred to emergency
rooms at municipal or county hospitals This
practice, known as“patient dumping,” has since
been prohibited by various state statutes, and
also by Congress as part of the Consolidated
Omnibus Budget Reconciliation Act of 1985
(COBRA) (Public Law No 99-272), in a section
titled Emergency Medical Treatment and Active
Labor Act (EMTALA) (§ 9121(b), codified at 42
U.S.C.A § 1395dd) Under EMTALA, hospitals
that receive federal assistance, maintain
charita-ble nonprofit tax status, or participate in
Medicare are prevented from denying
emergen-cy treatment based solely on an individual’s
inability to pay EMTALA allowed private
enforcement actions (i.e., lawsuits by
indivi-duals) and civil penalties (i.e., fines) for
hospitals that violate its provisions Patients
who must receive medical treatment include
people whose health is in “serious jeopardy”
and pregnant women in active labor The
EMTALA duty to provide treatment may be
relieved only if a patient is stabilized to the
point where a transfer to another hospital will
result in “no material deterioration of [his or her] condition.”
The U.S Supreme Court ruled in Roberts v
Galen of Virginia, Inc., 525 U.S 249, 119 S Ct
685, 142 L Ed 2d 648 (1999), that patients who have an emergency medical condition who are transferred from a hospital before being stabi-lized may sue the hospital under the EMTALA
The Court interpreted EMTALA to allow any patient to sue under the stabilization require-ment, even those who are not emergency room victims of patient dumping Under the decision,
a patient may recover if a hospital transfers the patient without stabilizing his or her condition, regardless of whether the doctor who signed the transfer order did so because the patient lacked HEALTH INSURANCE, or for any other improper purpose Lower federal courts have conflicted over other aspects of the EMTALA, including whether the plaintiff must prove an improper motive when a hospital fails to screen an emergency patient The High Court has not resolved all of these conflicts
Similar federal statutes require that hospitals treat all patients who have the ability to pay
Federal law prohibits discrimination on the basis of race, color, or national origin, by any program that receives federal financial assistance (42 U.S.C.A § 2000d) Almost all hospitals receive this kind of funding, and many derive half or more of their revenue from Medicare or MEDICAID Section 504 of the Rehabilitation Act
of 1973 (29 U.S.C.A § 794) prohibits federally funded programs and activities (including hospitals that receive federal funds) from excluding any “otherwise handicapped indivi-dual solely by reason of his handicap.”
The broad definition of “handicap” is
“physical or mental impairment that
substantial-ly limits one or more of a person’s major life activities.” This has been construed to include ACQUIRED IMMUNE DEFICIENCY SYNDROME(AIDS) and asymptomatic HIV Thus, hospitals that receive federal aid may not deny treatment to patients who are HIV-positive or who have AIDS At the state level, similar legislation protects access to all state-licensed health care facilities and to the services of treating physicians
Antitrust and Monopoly
The same antitrust and monopoly laws that govern businesses and corporations apply to physicians, hospitals, and health care organizations
HEALTH CARE LAW 239
Trang 3Sherman Act The SHERMAN ANTI-TRUST ACT of
1890 (15 U.S.C.A § 1) prohibits conspiracies in RESTRAINT OF TRADE that affect interstate com-merce Often, physicians who are denied admittance to, or who are expelled from, the medical staff of a hospital file a lawsuit in federal court, against the medical staff and the hospital, claiming violation of the Sherman Act
To understand why this kind of federal action applies in this situation, one must first understand the unique relation of doctors to hospitals Doctors generally do not work for a particular hospital, but instead enjoy staff, or
“admitting,” privileges at several hospitals They are accepted for membership on a medical staff
by the staff itself, pursuant to its bylaws The process of selecting and periodically re-evaluating medical staff members (called“credentialing” or
“peer review”) can result in a denial of admit-tance to, or expulsion from, the medical staff
Physicians who are denied admittance to, or expelled from, a hospital’s medical staff and file
a claim of Sherman Act violation in federal court are essentially claiming that they are being illegally restrained from their trade (i.e., prac-ticing medicine) It is the unique relation between doctors and hospitals, described
earli-er, that satisfies the first element of a Sherman Act violation, which is that a conspiracy must exist Normally, a single business cannot conspire with itself to restrain trade—a con-spiracy requires a concerted, or joint, effort between or among two or more entities
Because physicians, as independent contractors, constitute individual economic entities, when they vote as a medical staff to admit or expel a physician, they are acting in the concerted, or joint, fashion described by the statute
The second element of a Sherman Act violation is that a restraint of trade must occur
One rule states that any restraint of trade, especially in the commercial arena, may be viewed as per se (i.e., inherently) illegal How-ever, courts often have resorted to comparative analysis to balance the pro-competitive versus anticompetitive effects of a medical staff’s deci-sion For example, if a physician has a history of incompetent or unethical behavior, then a denial
of medical staff privileges can be independently justified However, if there is only one hospital in a small town, and the physician
in question meets all qualifications for ethics and competence, a denial of medical staff
privileges may well constitute illegal restraint
of trade
The final element of a Sherman Act viola-tion, that the action must substantially affect interstate commerce, is a jurisdictional require-ment, which means that if it is not satisfied, the federal court has no jurisdiction to hear the dispute, and the Sherman Act does not apply Courts are split as to whether a medical staff’s decision to grant or deny medical staff privileges satisfies this element Some courts view the practice of a single physician to have a minimal, rather than the required substantial, effect on interstate commerce, and hold that the jurisdic-tional element is not met Other courts focus on the activity of the entire hospital (e.g., receipt of federal funds, purchase of equipment from other states, and reimbursement from national insurance companies) and find that the jurisdic-tional element is met
Challenged medical staffs and hospitals often raise the“state-action” exemption, which exempts from federal antitrust law activities required by state law or regulations Many states mandate the peer-review process, even at private hospitals, but in order for an exemption based on this mandate to negate a finding of a Sherman Act violation, the state must supervise the process closely
Clayton Act Section 7 of the Clayton Anti-Trust Act of 1914 (15 U.S.C.A § 18) prohibits mergers if they “lessen competition or tend to create a monopoly.” To be valid, a merger must not give a few large firms total control of a particular market, because of the risks ofPRICE -FIXING and other forms of illegal COLLUSION Market-share statistics control merger analysis, and they are based on a“relevant market.” The CLAYTON ACT can prohibit a national hospital-management company from purchasing several hospitals in one town, and it can even prohibit joint ventures between hospitals and physicians
or between formerly competing groups of practicing physicians
Several exceptions apply to these prohibi-tions If a hospital is on the verge ofBANKRUPTCY and certain closure, but for the merger, then the merger will be allowed Nonprofit hospitals long enjoyed complete exemption from Section
7 of the Clayton Act, but now federal district courts are split as to whether the act applies to nonprofit hospitals In any case, a careful market analysis that shows that particular relevant
Trang 4markets do not overlap—and hence do not
lessen competition or create a monopoly—
can be used as evidence to uphold a merger
decision between two or more health care
entities
Health Care Insurance
A trend toward“managed care” and away from
“fee-for-service” medicine has been sparked by
significant changes in the health insurance
industry Health care insurance originated in
the 1930s with Blue Cross (hospitalization
coverage) and Blue Shield (physician services
coverage) It traditionally has stayed out of the
provision of health care services and has served
as a third-party indemnitor for health care
expenses; that is, in exchange for the payment of
a monthly premium, a health care insurance
company agrees to indemnify, or be responsible
for, its insured’s health care costs pursuant to
the specific provisions in the health insurance
policy purchased
Skyrocketing costs in health care spurred
public and private reform The federal Medicare
Program introduced diagnosis-related-groups
(DRGs) in 1983, which for the first time set
predetermined limits on the amounts that
Medicare would pay to hospitals for patients
with a particular diagnosis Employers seeking
lower health care costs for employees have
increasingly chosen managed care options like
HMOs and preferred provider organizations
(PPOs), both of which use cooperation and joint
efforts among patients, health care providers, and
payers to manage health care delivery so as to
reduce costs by eliminating administrative
ineffi-ciency as well as unnecessary medical treatment
Health care law will continue to be affected
by the country’s move toward managed care as
the predominant health care delivery model
For example, HMOs’ potential liability for
medical malpractice could increase because
many HMOs operate on a “staff model”
whereby physicians are explicitly hired as
“employees,” thus making it easier to
demon-strate respondeat superior liability for the
negli-gent acts of their physicians In addition, many
HMOs exercise greater control over the
discre-tion of individual physicians with regard not
only to primary care but also to specialist
referrals and the prescribing of certain drugs
The historical bright line forbidding the
corpo-rate practice of medicine is thus blurred even
further by managed care
HMOs operate on a prepaid basis, making monthly capitation (i.e., per patient) payments
to participating physicians and physician groups PPOs operate on a reduced-fee sched-ule, offering lower fees for patients who seek care from a“preferred provider,” who functions both as a primary care doctor and as a gatekeeper for such tasks as specialist referrals
Both use “networks” of physicians and health care providers The standard duty to provide medical care applies to physicians in these networks, but new issues arise regarding the payment or reimbursement of expenses Some managed-care plans offer limited “out-of-net-work” benefits, and some offer none at all
Should an employer change health plans, an employee with an established physician-patient relationship might find that the treating physi-cian is not part of the new provider’s network If the patient cannot or will not cover subsequent medical costs independently, who has the responsibility to secure alternative treatment for the patient? Who should pay for that treatment? These questions have not yet been resolved Many patients in this situation start over again with a new physician, out of economic necessity, and many are not happy about that involuntary termination of the physician-patient relationship
Another potential issue for physician net-works and“integrated delivery systems” (which include primary care physicians, specialists, and hospitals) is price-fixing, which has traditionally been held to be per se illegal under the Sherman Act PPOs are under particular scrutiny in this regard, as a PPO is a group of health care providers who agree to discounted fees in exchange for bulk business (e.g., medical care for all of a particular company’s employees)
These providers are individual economic entities, and as such they must exercise great care in the concerted, joint effort of setting prices and fees,
in order to avoid accusations of conspiracy to restrain trade through illegal price-fixing Like-wise, integrated delivery systems must be ever mindful of Clayton Act prohibitions against monopolies, and they must carefully tailor their joint ventures and other agreements to minimize their anticompetitive effects on relevant markets
Forty-five states have passed so-called Patients’ Bill of Rights—legislation to improve patients’ rights under private health insurance plans However, efforts to enact a federalBILL OF RIGHTS have proven unsuccessful In 2003 the
HEALTH CARE LAW 241
Trang 5U.S Supreme Court, in Kentucky Association of Health Plans v Miller, 538 U.S 329, 123 S Ct
1471, 155 L Ed 2d 468 (2003), reviewed a provision of Kentucky’s Health Care Reform Act that sought to regulate HMOs The HMO in the case claimed that Kentucky’s law was pre-empted by the EMPLOYEE RETIREMENT INCOME SECURITY ACT of 1974 (ERISA) The Court disagreed, holding that the Kentucky law regulated insurance, rather than an employee retirement plan, and thus that the ERISA pre-emption does not apply
FURTHER READINGS Jonas, Stephen Ed 2007 An Introduction to the U.S Health Care System 6th ed New York: Springer.
Pozgar, George 2006 Legal Aspects of Health Care Administration 10th ed New York: Jones and Bartlett.
Sultz, Harry & Young, Kristina 2008 & Health Care USA:
Understanding Its Organization and Delivery 6th ed.
New York: Jones and Bartlett.
CROSS REFERENCES Abortion; Animal Rights; Death and Dying; Drugs and Narcotics; Fetal Rights; Fetal Tissue Research; Food and Drug Administration; Physicians and Surgeons.
HEALTH INSURANCE Health insurance originated in the Blue Cross system that was developed between hospitals and schoolteachers in Dallas in 1929 Blue Cross covered a pre-set amount of hospitalization costs for a flat monthly premium and set its rates according to a“community rating” system:
Single people paid one flat rate, families another flat rate, and the economic risk of high hospitalization bills was spread throughout the whole employee group The only requirement for participation by an employer was that all employees, whether sick or healthy, had to join, again spreading the risk over the whole group
Blue Shield was developed following the same plan to cover ambulatory (i.e., non-hospital) medical care
The Blue Cross/Blue Shield plans were developed to complement the traditional
meth-od of paying for health care, often called “fee-for-service.” Under this method, a physician charges a patient directly for services rendered, and the patient is legally responsible for payment The Blue Cross/Blue Shield plans are called “indemnity plans,” meaning they reim-burse the patient for medical expenses incurred
Indemnity insurers are not responsible directly
to physicians for payment, although physicians
typically submit claims information to the insurers as a convenience for their patients For insured patients in the fee-for-service system, two contracts are created: one between the doctor and the patient, and one between the patient and the insurance company
Traditional property and casualty insurance companies did not offer health insurance because with traditional rate structures, the risks were great, and the returns uncertain After the Blue Cross/Blue Shield plans were developed, however, the traditional insurers noted the community rating practices and realized that they could enter the market and attract the healthier community members with lower rates than the community rates By introducing health screening to identify the healthier individuals, and offering lower rates to younger individuals, these companies were able to lure lower-risk populations to their health plans This left the Blue Cross/Blue Shield plans with the highest-risk and costliest population to insure Eventu-ally, the Blue Cross/Blue Shield plans also began using risk-segregation policies and charged higher-risk groups higher premiums
During the 1960s Congress enacted the MEDICAREprogram to cover health care costs of older patients, andMEDICAIDto cover health care costs of indigent patients (Pub L No 81-97) The federal government administers the Medi-care Program and its components: Part A, which covers hospitalization, and Part B, which covers physician and outpatient services The federal government helps the states fund the Medicaid Program, and the states administer
it Medicare Part A initially covered 100 percent
of hospitalization costs, and Medicare Part B covered 80 percent of the usual, customary, and reasonable costs of physician and outpa-tient care
Under both the fee-for-service system of health care delivery, where private indemnity insurers charge premiums and pay the bills, and the Medicare-Medicaid system, where taxes fund the programs, and the government pays the bills, the relationship between the patient and the doctor remains distinct Neither the doctor nor the patient is concerned about the cost of various medical procedures involved, and fees for services are paid without significant oversight by the payers In fact, if more services are performed by a physician under a fee-for-service system, the result is greater total fees
Trang 6Health Care Coverage for Persons Under 65, in 2006
Age
Race and Hispanic origin
45–64
White, non-Hispanic Black, non-Hispanic Hispanic, all races
Not covereda
Medicaid Private insurance
a Includes persons not covered by private insurance, Medicaid, Medicare, or military plans.
SOURCE: U.S Department of Health and Human Services, Centers for Disease Control and Prevention, National Center
for Health Statistics, Health, United States, 2008
0
10
20
30
40
50
60
70
80
90
100
6.3%
75.2%
13.2%
8.6%
24.6%
65.0%
29.9%
9.5%
59.4%
0
10
20
30
40
50
60
70
80
90
100
23.1%
40.0%
35.0%
26.6%
18.1%
51.3%
11.8%
16.7%
69.1%
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,
A PART OF CENGAGE LEARNING.
HEALTH INSURANCE 243
Trang 7From 1960 to 1990, per capita medical costs
in the United States rose 1,000 percent, which was four times the rate of inflation As a consequence, a different way of paying for health care rose to prominence “Managed care,” which had been in existence as long as indemnity health insurance plans, became the health plan of choice among U.S employers who sought to reduce the premiums paid for their employees’ health insurance
Managed care essentially creates a triangular relationship among the physician, patient (or member), and payer Managed care refers primarily to a prepaid health-services plan where physicians (or physician groups or other entities) are paid a flat per-member, per-month (PMPM) fee for basic health care services, regardless of whether the patient seeks those services The risk that a patient is going to require significant treatment shifts from the insurance company to the physicians under this model
Managed care is a highly regulated industry
It is regulated at the federal level by the Health Maintenance Organization Act of 1973 (Pub L
No 93-222) and by the states in which it operates The health maintenance organization (HMO) is the primary provider of managed care, and it functions according to four basic models:
1 The staff-model HMO employs physicians and providers directly, and they provide services in facilities owned or controlled by the HMO Physicians under this model are paid a salary (not fees for service) and share equipment and facilities with other physi-cian-employees
2 The group-model HMO contracts with an organized group of physicians who are not direct employees of the HMO, but who agree to provide basic health care services
to the HMO’s members in exchange for capitation (i.e., PMPM) payments The capitation payments must be spread among the physicians under a pre-determined arrangement, and medical records and equipment must be shared
3 The individual-practice-association (IPA) model HMO is based around an association
of individual practitioners who organize to contract with an HMO, and as a result treat the HMO’s patients on a discounted fee-for-service basis Although there is no periodic limit on the amount of payments
from the HMO, the physicians in an IPA must have an explicit agreement that determines the distribution of HMO receipts and sets forth the services to be performed
4 The direct-service contract/network HMO model is the most basic model Under this variation, an HMO contracts directly with individual providers to provide service to the HMO’s patients, on either a capitated
or discounted fee-for-service basis All four of these models share one very important feature of HMOs: The health care providers may not bill patients directly for services rendered, and they must seek any and all reimbursement from the HMO
Another form of managed care is the preferred provider organization (PPO) A PPO does not take the place of the traditional fee-for-service provider (as does a staff model HMO) and does not rely on capitated payments to providers Instead, a PPO contracts with individual providers and groups to create a network of providers Members of a PPO may choose any physician they wish for medical care, but if they choose a provider in the PPO network, their co-payments—predetermined, fixed amounts paid per visit, regardless of treatment received—are significantly reduced, thus providing the incentive to stay in the network No federal statutes govern PPOs, but many states regulate their operations There are three basic PPO models:
1 In a gatekeeper plan, a patient must choose
a primary-care provider from the PPO network This provider tends to most of the patient’s health care needs and must authorize any referrals to specialists or other providers If the patient“self-refers” without authorization, the cost savings of the PPO will not apply
2 The open-panel plan, on the other hand, allows a patient to see different primary-care physicians and to self-refer within the PPO network The financial penalties for seeking medical care out of the PPO network are much greater in this less-structured model than in the gatekeeper model
3 The exclusive-provider plan shifts onto the patient all of the costs of seeking medical care from a non-network provider, and in this respect it is very similar to an HMO plan
Trang 8Other forms of health care delivery that
encompass features of managed care include
point-of-service (POS) plans and
physician-hospital organizations (PHOs) A POS plan is a
combination of an HMO and an indemnity
insurance plan, allowing full coverage within
the network of providers and partial coverage
outside of it A patient must choose one
primary-care physician and might pay a higher
monthly rate to the POS if the physician is not
in the HMO network Another version of the
POS plan creates“tiers” of providers, which are
rated by cost-effectiveness and quality of patient
outcomes A patient may choose a provider
from any tier and then will owe a monthly
premium payment set to the level of that tier
A PHO is very similar to an IPA in that it is
an organization among various physicians (or
physician groups) and a hospital, set up to
contract as a unit with an HMO
Physician-hospital networks, within HMOs or through
PHO contracts, further the managed-care
mission of “vertical integration,” which is the
coordination of health care (and payment for
that care) from primary care through specialists
to acute care and hospitalization
Managed care has affected Medicare as well
as private health care In 1983 Congress
changed the payment system for Medicare,
Part A, from a fee-for-service-paid-retroactively
system to a prospective payment system, which
fixes the amount that the federal government
will pay based on a patient’s initial diagnosis,
not on the costs actually expended (Pub L No
98-369) Medical diagnoses are grouped
ac-cording to the medical resources that are
usually consumed to treat them, and from that
grouping is determined a fixed amount that
Medicare will pay for each diagnosis Although
this system is applicable only to the acute-care
hospital setting, it is clearly an example of
shifting the risk of the cost of health care
from the payer (in this case, Medicare) to the
provider, which is an important element of
managed care In addition, many HMOs now
offer Medicare managed-care plans, and many
older citizens opt for these plans because of
their paperless claims and pre-set co-payments
for physician visits and pharmaceuticals
The most recent development in the area of
health insurance is the medical savings account
(MSA), a pilot program that was created by the
Health Insurance Portability and Accountability
Act of 1996 (Pub L No 104-191) The premise behind the MSA is to take the bulk of the financial risk, and premium payments, away from the managed-care and indemnity insurers;
and to allow individuals to save money, tax free,
in a savings account for use for medical expenses Individuals or their employers pur-chase major-medical policies, medical insurance policies with no coverage for medical expenses until the amount paid by the patient exceeds a pre-determined maximum amount, such as
$2,500 per year These policies have extremely high deductibles and correspondingly low monthly premiums The participants take the money that they would have spent on higher premiums and deposit it in an MSA This money accrues through monthly deposits and also earns interest, and it can be spent only to pay for medical care The major-medical policy applies
if a certain amount equal to the high deductible
is expended or if the account is depleted MSAs
do not incorporate any of the cost-controlling aspects of managed-care organizations, and instead depend on competition among providers for patients (who are generally more cost-conscious about spending their own money) to encourage efficient health-care delivery and to discourage unnecessary expense
Litigation has resulted from insurance companies seeking to place limits for certain conditions The decision by the U.S Court of Appeals for the Seventh Circuit in Doe and Smith v Mutual of Omaha Insurance Co., 179 F.3d 557 (7th Cir 1999), cert denied, 120 S Ct
845 (2000), concerns AIDS caps insurance policies At issue in the case was whether the Americans with Disabilities Act (ADA) covers the content of insurance policies The plaintiffs, who sued under the pseudonyms John Doe and Richard Smith, argued that Mutual of Omaha Company had discriminated against them by selling them insurance policies with lifetime caps on AIDS-related expenditures John Doe’s policy had a lifetime AIDS cap of $100,000, and Richard Smith’s policy had a cap of $25,000
Other health insurance policies sold by the company had lifetime caps for other diseases of
$1 million The Seventh Circuit found that AIDS caps do not violate the ADA The court found that Doe and Smith had not been discriminated against, because the company had offered them an insurance policy The ADA, the court determined, would only pro-hibit Mutual of Omaha from singling out
HEALTH INSURANCE 245
Trang 9disabled people and refusing to sell them insurance The court ruled that the ADA did not prohibit the company from offering dis-abled parties insurance policies with different
terms and conditions from other people The court held the plaintiffs were not denied a policy because they had AIDS but rather were denied coverage for certain AIDS treatments
Healthcare Reform
Healthcare reform has been a
con-tentious political issue since the
1940s Whereas most industrialized
coun-tries have single-payer systems, where the
government administers and finances
healthcare, the U.S system has been built
on employer-paid healthcare insurance
sold by private companies Under
single-payer plans, such as used in Canada,
everyone is provided benefits and no one
has to pay deductibles or co-payments
Single-payer plans reduce overhead
expenses because the government pays
the medical costs directly to the provider,
eliminating the middle-person, which in
the United States are HEALTH INSURANCE
companies Efforts to establish a
single-payer system in the United States have
been unsuccessful, as opponents warn of
socialized medicine and the loss of free
choice Meanwhile, healthcare costs rise
every year, putting financial strains on
employers and their employees More
than 47 million people in the United
States did not have health insurance in
2009 By the 2008 presidential election,
healthcare reform was a hot political topic
The election ofBARACK OBAMAas president
meant that healthcare legislation would be
on the congressional agenda in 2009 As
the year unfolded, five committees in the
House and Senate worked on reform
plans By the end of 2009, it appeared
likely that a major reform will would be
passed in early 2010
In the late 1940s, President HARRY
TRUMANproposed that the United States
adopt a single-payer plan His proposal
went nowhere, and healthcare remained
an issue left to state regulation and the
marketplace The passage of theMEDICARE
Act in 1965 inserted the federal
government into healthcare, paying for the healthcare of all citizens 65 and older
Medicare was opposed by Republicans, who believed it was a major step toward single-payer, socialized medicine Medi-care proved, however, to be a popular program; though the program is govern-ment-run, senior citizens have the ability
to choose healthcare providers
The healthcare debate rekindled with the election ofBILL CLINTONas president
in 1992 His wife, HILLARY RODHAM CLINTON, led a White House committee that drafted a reform initiative The result was a complex proposal that sought to guarantee universal coverage
by requiring employers to insure all full-time workers The plan would have established a national health board and
a government agency that would have set the maximum amount health insurers could increase premiums each year
Employers and insurance companies mounted an effective lobbying campaign that killed off the proposal
From the mid-1990s to the 2008 pre-sidential campaign, there was much talk about healthcare reform, but neither major party displayed interest in propos-ing comprehensive reform They noted that Clinton’s failure to pass his proposal weakened him politically and contributed
to the Republicans taking over the House
of Representatives for the first time since the late 1940s Congress did pass
in 1997 the State Children’s Health Insurance Program (SCHIP), which pro-vides matching funds to states to pay for health insurance for families with children In 2009 the program was given
a large infusion of money, so as to insure millions more Nevertheless, more
persons complained that they could not afford health insurance premiums or that they were denied coverage for a pre-existing medical condition A significant number of individuals filed for
BANKRUPT-CY due to medical bills for catastrophic illnesses Reforms at the state level proved difficult to combat these problems
Republicans argued that the best way
to reform healthcare was to open the market As of late 2009, each state regulates insurers Some states have stronger regulations than others, but the overall effect has been a lack of competition; insurers select the states that they find most beneficial and ignore the rest Republicans, such as 2008 presidential nominee Senator JOHN MCCAIN, proposed that state regulation
be relaxed so a person in Minnesota could have the choice of buying a healthcare policy from any insurer in the country In addition, he proposed moving from the employer-based model
to an expanded federal healthcare savings account system that would be combined with federal subsidies and tax breaks However, there was movement to-ward some type of government solution that mandated universal coverage The state of Massachusetts enacted healthcare reform in 2006 Under the plan, almost all residents are required to purchase healthcare coverage If they fail to comply, residents must pay a penalty
By 2008, 439,000 previously uninsured residents had insurance Employers with more than ten employees are required to make a “fair and reasonable contribu-tion” to the payment of health pre-miums The costs of the program were higher than anticipated, but by 2009
Trang 10Federal health care reform has been a
contentious issue since the early 1990s The
Clinton administration’s reform efforts failed,
and the issue was not a major focus of either
major political party until the 2008 presidential election PresidentBARACK OBAMAsigned into law
in February 2009 the Children’s Health Insur-ance Program Reauthorization Act of 2009,
only 4.1 percent of Massachusetts
resi-dents lacked health insurance, the lowest
rate in the United States
President Obama put healthcare at the
top of his agenda when he entered the
White House Though he sought a plan
with universal coverage, cost controls, and
tougher regulations of health insurance
practices, he did not propose a specific
plan but left it to Congress to determine
the details Seeking to avoid the Clinton
debacle, Obama gambled that Congress
could write a comprehensive plan with
bipartisan support As the year progressed
and competing ideas surfaced, it became
clear that virtually all Republicans would
oppose legislation written by the
Demo-cratic majorities in the House and Senate
However, moderate and conservative
Democrats also raised concerns about
the scope and cost of the proposals that
were in five committees
By March 2009 the committee chairs
had reached consensus on what the
legisla-tion should contain Like Massachusetts,
the plan would require universal coverage
and carry penalties for those who do not
comply The health insurance industry
insisted on this element, as millions of
healthy young adults who will not use
healthcare much would pay for the
in-creased costs that would come with
insur-ance reforms Such reforms included
pre-venting insurers from dropping sick policy
holders, denying claims and coverage for
pre-existing conditions, and removing
yearly and life-time caps on benefits
Another major component of the
emerging proposal was the creation of
health insurance exchanges The
exchanges would introduce competition
into the private health insurance market
An individual with no coverage, the
self-employed, and small business owners
would purchase coverage from one of the
companies in an exchange The exchange
would have competing providers offering
different plans with varying benefit levels
and prices Insurers would not be able to discriminate based on a person’s health history or future risk Plans would have
to be certified as meeting a minimum level of comprehensiveness The hope was that competition would drive down healthcare costs because the exchanges, with thousands or millions of partici-pants, would leverage the same bargain-ing power as large employers
However, one contentious issue began
to dominate the debate: the public option
House Democrats proposed that the gov-ernment compete with private insurers for the same pool of people in the health insurance exchange Advocates believed the only way to generate meaningful competi-tion and lower costs was for the govern-ment to enter the market Economies of scale and bargaining power, coupled with the fact that the government would not have to earn a profit for shareholders, meant that a public option would be a serious competitor Opposition to the public option from the health-care indus-try, Republicans, and some Democrats, especially in the Senate, put reform in doubt as the summer of 2009 progressed
Some influential Democratic senators an-nounced that the public option would not
be in the final bill, whereas some House Democrats insisted they would not vote for any reform bill that did not contain it
On November 7, 2009, the House passed its healthcare bill on a vote of
220-215, which indicated a number of conserva-tive Democrats opposed it To achieve passage, Speaker of the House Nancy Pelosi agreed to several compromises to gain some conservative Democrat votes One restricted ABORTION coverage in subsidized plans
Another change barred the public option plan from offering rates just above what Medicare pays; instead, it would have to negotiate rates as insurers do The CONGRES-SIONAL BUDGET OFFICE(CBO) projected the plan would reduce the federal deficit over the next ten years by $109 billion
The Senate debate began in late November and concluded with an early morning vote on December 24, 2009 Though the Democratic majority is 60 seats, several conservative Democrats objected to the public option and refused to vote for the bill if it contained such a provision As an alternative, a group of senators floated the idea of people ages 55 to 64“buying in” to Medicare The opposition of Senator Joseph Lieberman killed that idea Senator Ben Nelson became the last holdout, the sixtieth vote The conservative from Nebraska forced the removal of a provision that would have stripped the insurance industry
of its antitrust exemption He also forced the addition of language that gives states the right to block plans covering abortion coverage from their health exchanges The final vote, 60 to 39, was a major victory for President Obama yet potential roadblocks lay ahead Because the two bills differed, a conference committee was to meet in early January 2010 to reconcile differences Commentators expected House Democrats to drop the public option and work towards a final bill that would satisfy conservative Senate Democrats If the legislation were to be enacted, many of its key provisions would not begin until 2014 Even if enacted, 24 million people would remain uninsured in 2019, with about one-third
of them illegal immigrants
In March 2010, President Obama signed health insurance reform legisla-tion (P.L 111-148, the Patient Proteclegisla-tion and Affordability Act of 2010)
FURTHER READINGS Jonas, Stephen, ed 2007 An Introduction to the U.S Health Care System 6th ed New York: Springer.
Pozgar, George 2006 Legal Aspects of Health Care Administration 10th ed New York: Jones and Bartlett.
Sultz, Harry, and Kristina Young 2008 Health Care USA: Understanding Its Organization and Delivery 6th ed New York: Jones and Bartlett.
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