Health care law newsletter最新文献

Although legislation is pending that would require the federal government is issue advisory opinions to those seeking to comply with Stark II (see Press Release #26-A, Committee on Ways and Means, U.S. House of Representatives, July 1, 1994, at 26), such legislation would not entirely solve these interpretive problems, as questions encountered under Stark II are likely to be far too frequent and the response time too long to make it practical to obtain opinions each time. Thus, until such time as Stark II is amended, clarifying regulations are issued, or courts interpret it meaning, physicians who practice in groups that provide designated services must hope that federal enforcement agencies use common sense and understanding in applying an ambiguous statute to real life situations, affording leniency toward participants in arrangements that fit within reasonable interpretations of the statute's exceptions.

As this article goes to press, it is nearly impossible to predict what sort of health reform plan will ultimately be passed, if any, and whether any form of long-term care coverage will be included. The need for such coverage will not, however, diminish with the close of the current congressional session and is likely to be a topic of debate for some time. The entire process of health reform legislation has been one of paring down initial hopes and expectations, and it may take many more years, until an even larger segment of our population is aged, before log-term care coverage becomes politically and fiscally desirable enough to withstand the political process.

The prospects for federal legislation preempting state corporate practice restrictions are unclear. The health care reform bill originally introduced by President Clinton contained a provision that would have preempted "any state law related to the corporate practice of medicine" insofar as it applied to the arrangements between non-fee-for-service health plans and their participating providers. H.R. 3600/S. 1757, 103d Cong., 1st Sess. 1407(b) (1993). Whether and in what form a preemption provision may survive the legislative process and see a Presidential signature remains to be seen. The particular fate of the federal legislation notwithstanding, however, health care executives can nevertheless remain confident that the legal treatment of the "corporate practice" of medicine will continue to be of vital concern as the various forms of health care organizations evolve in the ongoing struggle to deliver quality medicine at affordable prices.

As a matter of social policy, providers should place a top priority on educating colleagues and the public, including lawyers and the courts, so that there is genuine understanding that certain medical conditions, like anencephaly and brain death, cannot be ameliorated, changed, or improved through medical treatment even though the patient may continue to breathe with mechanical assistance for years. If health care professionals do not articulate and adhere to clear, universal standards of practice in this area, the courts will continue to define the duty of the medical profession, and, as Baby K illustrates, that is not acceptable.

As addressed in past issues of the Newsletter, the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. sections 1001 et seq., limits the ability of states to regulate the terms and conditions of group health plans. See Newsletters, Vol. 8, No. 6, June 1993, at 6 and 23; Vol. 8, No. 1, January 1993, at 7; Vol. 7, No. 2, February 1992, at 13; Vol. 6, No. 11, November 1991, at 3. Under ERISA, states cannot mandate that self-insured group health plans or employers provide specific types of coverage. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380 (1985). Such mandates are enforceable only as to insurance companies and HMOs, and only to the extent that they are deemed to "regulate insurance." Id. As a result, state legislative attempts to regulate experimental treatment insurance coverage have largely been limited to health plans that are not self insured. Given the inconsistent handling of experimental treatment insurance coverage by both insurance companies and courts across the nation, state legislatures have demonstrated that they are ready to address this matter themselves. However, unless ERISA is amended to afford employees with self-insured plans the same protections as those with insured plans, such state efforts will not be able to resolve the problem for all citizens.

EMTALA has always been an especially worrisome law for providers because its requirements are both sweeping and vague, with potentially drastic penalties for violations. The new regulations remove only some of the law's vagueness. As with previous EMTALA amendments, all United States hospitals, as well as emergency department physicians and other doctors who see patients in the emergency department, should carefully review their internal policies regarding patient ++ transfers in light of the new regulations. For example, hospitals must have an internal policy for following up on suspicious transfers, as failure to detect an inappropriate transfer can now potentially result in a Medicare decertification action. Also, hospitals with specialized services (e.g., burn units or shock-trauma units) should review their policies on receiving transfer patients in light of the greater specificity of the new regulations. Finally, because of the confusing new requirements regarding ambulance services, all hospitals should review their relationships with and policies regarding, ambulance services and ambulance diversion.

Tort reform is controversial because of the need to balance cost considerations with the legitimate needs of plaintiffs who have suffered malpractice injury. In addition, proponents and opponents of the different proposals often formulate their positions based largely on anecdotal evidence and concerns of special interest groups rather than careful studies. As a result, it may be some time before malpractice reform is addressed comprehensively at the federal level, leaving the states to their own reform devices.