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Overview
The Law of Healthcare Administration offers a thorough examination of health law in the United States from a management perspective. Using plain language accessible to nonlawyers, the book moves from broad-brush treatments of the US legal system and the history of medicine to specific issues that affect healthcare leaders daily, including contracts, torts, taxation, antitrust laws, regulatory compliance, and, most pressing, health insurance reform and the important changes that have taken place since the Affordable Care Act (ACA) became law in 2010. The legal concepts discussed in the book are amply supported by real-life examples, detailed explanations, and excerpts from decisions of federal and state courts.
Highlights of the new edition include:
The status of ACA implementation following NFIB v. Sibelius and King v. Burwell, the two most serious legal challenges to the reform law The history of nursing, added to the history of medicine chapter The status of Medicare's inpatient admission standards and the two-midnight rule Prominent antitrust cases from Ohio, Idaho, and North Carolina End-of-life issues, including the Physician Orders for Life-Sustaining Treatment (POLST) paradigm and death with dignity laws The Whole Woman's Health case, in which the Supreme Court reaffirmed the essential holdings of Roe v. Wade and its progeny The Supreme Court's decision on implied certification, plus other issues related to false claims and fraudLike the editions before it, the eighth edition of The Law of Healthcare Administration is practical and well suited to students and educators in health administration, public health, nursing, and similar programs and disciplines.
Product Details
| ISBN-13: | 9781567938791 |
|---|---|
| Publisher: | Health Administration Press |
| Publication date: | 02/22/2017 |
| Series: | AUPHA/HAP Book |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 635 |
| File size: | 7 MB |
About the Author
Read an Excerpt
CHAPTER 1
THE ANGLO-AMERICAN LEGAL SYSTEM
After reading this chapter, you will
• understand that law comes from four basic sources — constitutions, statutes, administrative regulations, and judicial decisions;
• know that no one branch of government in the US legal system is meant to be more powerful than the others;
• be able to find judicial opinions in the reporter system;
• understand the importance of stare decisis and due process; and
• be familiar with basic aspects of legal procedure.
Some History
Before we discuss Anglo-American law specifically, let's discuss some of the history of "law" itself. Nearly 3,800 years ago, King Hammurabi of Babylon inscribed a set of laws on an eight-foot-tall black stone monument. Lost for centuries but rediscovered in 1901, the Code of Hammurabi is the oldest known example of written laws for the governance of a society (see exhibit 1.1).
The code is known for its "eye for an eye, tooth for a tooth" philosophy (lex talionis is a Latin phrase meaning "the law of retaliation"). Adultery and theft were punishable by death. A slave who disobeyed his master lost an ear, which was an ancient symbol of obedience. If a surgeon caused injury, his hand was cut off; this provision may have been the first version of malpractice law known to humankind. In addition to these harsh standards, the code contained rules for everyday social and commercial affairs — sale and lease of property, maintenance of lands, commercial transactions (contracts, credit, debt, banking), marriage and divorce, estates and inheritance, and criminal procedure. Given Hammurabi's reputation as a lawgiver, his depiction can be found in several US government buildings, including the US Capitol and the Supreme Court.
Fast-forward to the fourth century BCE and we find Aristotle, the father of natural law — the idea that there exists a body of moral principles common to all persons and recognizable by reason alone. Natural law is distinguished from positive law — the formal legal enactments of a particular society. Centuries later, Saint Thomas Aquinas distinguished natural law from eternal, divine, and human-made law in his Summa Theologica (circa 1274). A few other legal philosophies (and representative adherents) over the centuries have included the following:
• Law as a social contract (Thomas Hobbes, Leviathan, 1651)
• Analytic jurisprudence (David Hume, A Treatise of Human Nature, 1739)
• Utilitarianism (Jeremy Bentham and John Stuart Mill, nineteenth century)
• Legal positivism (John Austin, nineteenth century)
• Legal realism (Oliver Wendell Holmes Jr., Roscoe Pound, and others, twentieth century)
• Libertarianism (John Nozick and Ron Paul, late twentieth century)
The point here is not to make legal philosophers out of you but to demonstrate that various systems of thought have influenced the US legal system over the centuries.
Anglo-American Law
In Charles Dickens's Oliver Twist, Mr. Bumble has been proven an accessory to his wife's attempt to deprive poor Oliver of a rightful inheritance. Bumble asserts that if the law holds him responsible, then "the law is an ass — an idiot." This argument is ineffective, however. Bumble and his wife lose their jobs and become inmates of the very workhouse where Oliver's mother died while giving birth to him. Ah! The law is not so asinine after all. It has impressed and fascinated authors and scholars for millennia, and the US legal system has done the same for two and a half centuries.
One can study law simply by reading statutes and judicial decisions, but for a full understanding one must also read history, sociology, public policy, politics, economics, ethics, religion, and other relevant fields. Because the roots of Anglo-American law can be traced back to the Norman Conquest of England in 1066 and beyond, some view the richness of the US legal tradition with a respect that approaches reverence (see Legal Brief).
Stated in the simplest and arguably most important way, the purpose of a legal system is to prevent anarchy and provide an alternative to personal revenge as a method of resolving disputes. Considering the size and complexity of our nation, the litigious temperament of our people, and the wide range of possible disputes, our legal system is remarkably successful in achieving its purpose. It has its shortcomings, to be sure, but at least it stands as a bulwark against self-help and blood feuds.
The law permeates today's healthcare field. The US medical system is perhaps the most heavily regulated enterprise in the world, subject not only to the principles that affect all businesses (everything from antitrust to zoning) but also to myriad regulations peculiar to healthcare. For these reasons, students of healthcare administration need to become familiar with the law and legal system. Almost every decision made and every action taken by healthcare administrators have legal implications, and all such decisions and actions are explicitly or implicitly based on some legal standard. Furthermore, students must understand basic legal principles well enough to recognize when professional legal advice is needed. The main purpose of this book is to help you and your organization stay out of trouble.
This chapter outlines general concepts essential to any study of law. It emphasizes three areas:
1. Sources of law
2. Workings of the court system
3. Basic legal procedure
Legal Brief
The common law is the result of centuries of judicial decisions, decrees, customs, and ordeals in the pursuit of justice. People from many backgrounds have influenced its development over the years.
More than a millennium ago, the Anglo-Saxon inhabitants of what was to become England began to centralize their various kingships to ward off enemies and maintain peace. In the process, they created a legal system that came to include concepts still familiar today, such as writs (court orders); the offices of sheriff, bailiff, and mayor; taxation; complex legal record keeping; the use of sworn testimony; and stare decisis (respect for legal precedent).
The common law grew along with the further cohesion of the country following the conquest of England by Duke William of Normandy ("William the Conqueror"; 1028–1087) in 1066. Under King Henry II (1133–1189), tribunals such as the King's Court and circuit courts were added to the legal system, and the decisions of those bodies became part of the law common to the whole of England. Henry is sometimes described as the father of English common law. Also part of the common law are the Magna Carta (1215), the Habeas Corpus Act (1679), the Petition of Right (1628), and the English Bill of Rights (1689). These instruments describe certain basic concepts — the authority of the sovereign (king or state), freedom of speech, limitations on the use of martial law, the separation of judicial and legislative powers, and recognition that statutes are not the sole basis of law — that applied to colonial America and remain woven through the fabric of US law to this day.
common law
the body of law based on custom and judicial precedents, as distinct from statutory law; its historical roots are the traditional laws of England that developed over many centuries and were carried over to the American colonies and thus the United States.
The Definition of Law
In its broadest sense, law is a system of principles and rules devised by organized society or groups in society to set norms for human conduct. Societies and groups must have standards of behavior and means to enforce those standards; otherwise, they devolve into vigilantism. The purpose of law, therefore, is to prevent conflict among individuals and between government and its subjects. When conflicts occur, legal institutions and doctrines supply the means of resolving the disputes.
Because law is concerned with human behavior, it is not an exact science. Indeed, "it depends" is a law instructor's most frequent answer to students' questions. This response is frustrating for both the students and the instructor, but it is honest. The law provides only general guidance; it is not an exact blueprint for living. Its application varies according to the circumstances of the case. However, this inherent ambiguity is a great strength; its adaptability fosters creativity. Legal rigidity would inhibit initiative, stunt the growth of social institutions, and ultimately result in decay.
Viewed in proper light, law is a landscape painting that captures the beliefs of society in a given location at a certain point in time. But it is not static; law is a work in progress, a constantly changing piece of art — a hologram, perhaps — that moves with society. Most often it moves at a glacial pace — slowly and quietly, the land shifting beneath it. At other times, it moves seismically, as was the case in 2010 with the passage of a legislative temblor known as the Affordable Care Act (ACA), or "Obamacare." Despite outcries from some segments of the political spectrum, the US Supreme Court in June 2012 held the ACA to be constitutional. Most of the ACA's reforms took effect in 2014, and the aftershocks will be felt for years. Until the dust settles completely, we will not know how much the act has altered the legal topography.
law a system of standards to govern the conduct of people in an organization, a community, a society, or a nation
Affordable Care Act (ACA) the health reform law enacted by Congress in 2010; full name: Patient Protection and Affordable Care Act, Pub. L. No. 111-148
Types and Sources of Law
Law can be classified in various ways. One of the most common ways is to distinguish between public law and private law. Public law concerns the government and its relations with individuals and businesses. Private law refers to the rules and principles that define and regulate rights and duties among persons. These categories overlap, but they are useful in illustrating Anglo-American legal doctrine.
Private law comprises the law of contracts, property, and tort, all of which usually concern relationships between private parties. It also includes, for example, such social contracts as canon law in the Catholic Church and the regulations of a homeowners' association. Public law, on the other hand, regulates and enforces rights in which the government has an interest (e.g., labor relations, taxation, antitrust, environmental regulation, criminal prosecution). The principal sources of public law are as follows:
• Written constitutions (both state and federal)
• Statutes enacted by a legislative body (federal, state, local)
• Administrative law
• Judicial decisions
Constitutions
The US Constitution is aptly called the "supreme law of the land" because it sets standards against which all other laws are judged. Other sources of law must be consistent with the Constitution.
The Constitution is a grant of power from the states to the federal government (see Legal Brief). All powers not granted to the federal government in the Constitution are reserved by the individual states. This grant of power to the federal government is both express and implied. For example, the Constitution expressly authorizes the US Congress to levy and collect taxes, borrow and coin money, declare war, raise and support armies, and regulate interstate commerce. Congress may also enact laws that are "necessary and proper" to carry out these express powers. For example, the power to coin money includes the implied power to design US currency, and the power to regulate interstate commerce embraces the power to pass antidiscrimination legislation, such as the Civil Rights Act of 1964.
The main body of the Constitution establishes, defines, and limits the power of the three branches of the federal government:
1. The legislature (Congress) has the power to enact statutes.
2. The executive branch has the power to enforce the laws.
3. The judiciary has the power to interpret the laws.
Each branch plays a different role, and the branches' interaction is governed by a system of checks and balances (see exhibit 1.2). The president can nominate federal judges, but the Senate must confirm those nominations; Congress can remove high-ranking federal personnel (including judges and the president) through the impeachment and trial process; and the judiciary can declare laws unconstitutional. The president can veto a congressional bill, but Congress can override a veto by a two-thirds vote of each chamber.
Twenty-seven amendments follow the main body of the Constitution. The first ten — ratified in 1791 — are known as the Bill of Rights, which includes the rights to
• exercise freedom of speech,
• practice religion,
• bear arms,
• be secure from unreasonable searches and seizures,
• demand a jury trial,
• be protected against self-incrimination, and
• be accorded substantive and procedural due process of law.
Of the remaining amendments, two cancelled each other: the Eighteenth, which established Prohibition, and the Twenty-First, which repealed the Eighteenth. As of this writing, only 15 substantive changes have been made to the basic structure of US government since 1791. The first ten amendments apply only to the federal government. However, the Fourteenth Amendment — ratified in 1870 — declares that no state may "deprive any person of life, liberty, or property, without due process of law." The US Supreme Court has held that most of the rights set forth in the Bill of Rights apply to the states because of the Fourteenth Amendment's Due Process Clause. (An example of a due process case is Simkins v. Moses H. Cone Mem. Hosp., presented in The Court Decides at the end of this chapter.) Consequently, neither the states nor the federal government may infringe on the rights mentioned earlier.
In addition to the US Constitution, each state has its own constitution. A state's constitution is the supreme law of the particular state, but it is subordinate to the federal constitution. State and federal constitutions are similar, although state constitutions are more detailed and cover such matters as the financing of public works and the organization of local governments.
Legal Brief
The United States is not a union; it is a federation (from the Latin word foedus, meaning "covenant") of 50 self-governing states that have ceded some of their sovereignty to the central (federal) government to promote the welfare of all.
due process of law
a fundamental principle of fairness in legal matters, both civil and criminal; the requirement that all legal procedures set by statute and court practice be followed so that no unjust treatment results
Statutes
Statutes are positive law enacted by a legislative body. Because our federal system is imbricate with national, state, and local jurisdictions, the legislative body may be Congress, a state legislature, or a deliberative assembly of local government (e.g., county council, city council). Statutes enacted by any of these bodies may apply to healthcare organizations. For example, hospitals must comply with federal statutes such as the Civil Rights Act of 1964 and the Hill-Burton Act, which prohibit discrimination at patient admission. Most states and a number of large cities have also enacted antidiscrimination statutes.
Judges face the task of interpreting statutes. Interpretation is especially difficult when the wording of a statute is ambiguous, as it usually is. To clarify statutes, the courts have developed several rules of construction, which in some states are themselves the subject of a separate statute. Regardless of their source, the rules are designed to help judges ascertain the intent of the legislature. Common rules of construction include the following:
• Interpretation of a statute's meaning must be consistent with the intent of the legislature.
• Interpretation of a statute's meaning must give effect to all of its provisions.
• If a statute's meaning is unclear, its purpose, the result to be attained, legislative history, and the consequences of one interpretation over another must all be considered.
Whether of constitutions or statutes, judicial interpretation is the pulse of the law. A prominent example appears later in this chapter in the discussion of Erie R. R. Co. v. Tompkins, a case in which the meaning of a venerable federal statute was at issue. And in chapter 12, the section on taxation of real estate discusses numerous cases concerning the meaning of "exclusive use" of a piece of property for charitable purposes. These cases are just a few of the many examples of judicial interpretation that permeate this text. Be alert for others, and try to discern the different philosophies of judicial interpretation that the cases' outcomes represent.
(Continues…)
Excerpted from "The Law of Healthcare Administration"
by .
Copyright © 2017 Foundation of the American College of Healthcare Executives.
Excerpted by permission of Health Administration Press.
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Table of Contents
Preface,
Chapter 1. The Anglo-American Legal System,
Chapter 2. A Brief History of Medicine,
Chapter 3. Health Reform, Access to Care, and Admission and Discharge,
Chapter 4. Contracts and Intentional Torts,
Chapter 5. Negligence,
Chapter 6. The Organization and Management of a Corporate Healthcare Institution,
Chapter 7. Liability of the Healthcare Institution,
Chapter 8. Medical Staff Privileges and Peer Review,
Chapter 9. Health Information Management,
Chapter 10. Emergency Care,
Chapter 11. Consent for Treatment and Withholding Consent,
Chapter 12. Taxation of Healthcare Institutions,
Chapter 13. Competition and Antitrust Law,
Chapter 14. Issues of Reproduction and Birth,
Chapter 15. Fraud Laws and Corporate Compliance,
Glossary,
Case Index,
Index,
About the Author,