Updated Syllabus

HEALTH LAW & POLICY

LA 720A

Fall 2009

Amendment to Syllabus

October 14^th

Medicare

Medicare Primer, Kaiser Family Foundation, http://www.kff.org/medicare/upload/7615-02.pdf

Medicare and the MMA

Text: 767-796

October 21^st

Professional Licensing, Discipline, Complementary and Alternative Medicine

1. Text: 115-158 (Students whose last names begin with A through L will be the class experts on Williams and Hoover. Students whose last names begin with M through V will be the experts on McDonough and Ruebke.)
2. Problem: p. 156 (“Physicians, Physician Assistants, and Nurses”) Students whose last names begin with A through L have been retained by Drs. Jones and Johnson. Prepare to advise them on whether their plans are consistent with the laws regulating practice in Allstate, and how they might comply while maintaining a low-cost practice. Students whose last names begin with M through V have been retained by Ms. Mayo. Prepare to advise her on whether she ought to affiliate with the doctors and whether her current practice is authorized in Allstate.

October 28^th

Staff Privileges, Hospital-Physician Contracts and Managed Care Contracts

1. Text: 849-877
2. Problem: p. 872 (“Dr. Bennett and Onyx General Hospital”) All students should be prepared to advise Onyx General Hospital on what it should do about Dr. Bennett. (There is no need to work the part of the problem involving SportsMed, Inc.)

Liability of Health Care Professionals: Standard of Care, Practical Guidelines

Text pp. 327-351

November 4^th

Liability of Health Care Professionals: Other Theories, Defenses to Malpractice

1. Text pp. 363-404

2. Problem: p. 380 (“The Hospital Revolving Door”) Students whose last names begin with A through L should be prepared to discuss how they would proceed against Dr. Benton.

3. Problem: p. 384 (“To Monitor or Not”) Students whose last names begin with M through V should be prepared to discuss what policies will minimize the hospital’s liability while respecting the patient’s wishes (when it is safe to do so).

The Professional-Patient Relationship; Confidentiality and Disclosure

Text pp. 195-219, 289-325

November 11^th

Introduction to Fraud and Abuse; False Claims Act and Anti-Kickback Statute

1. Text: 1023-1070
2. Problem: p. 1054 (“Advising Under the Fraud and Abuse Laws”) Students whose last names begin with M through V should analyze questions 1 and 2. Students whose last names begin with A through L should analyze questions 3 and 4. Do any of these transactions violate the fraud and abuse laws? Aside from any legal problems, is there anything wrong with them from an ethical or public policy perspective?

Introduction to Fraud and Abuse; The Stark Law

1. Text: 1081-1094
2. Problem: p. 1092 (“Medical Directors”) All students consider what Stark issues are raised by the way ABC established the medical directorships and the way it has implemented its agreements? How helpful in determining this are the definitions of “fair market value” and “acceptable methodology”?

November 18^th

Introduction to Antitrust

1. Text: 1095-1106, 1160-1184

2. Problem: p. 1181 (“Evaluating a Hospital Merger in Your Community”) All students consider the merger of the two largest hospital systems in Rhode Island (Lifespan and Care New England).

November 25^th

No Class

December 2^nd

Defining Death/ Life and Death Decisions

1. Text p. 1380-1407
2. Problem: p. 1380 (“When Does Death Occur”) All students should consider and be prepared to address the questions that arise from Mr. Arcturus’ accident.
3. Text pp. 1408-1442, 1488-1496

Make up class

Medicaid and SCHIP

1. Text: 814-848
2. Explaining Health Care Reform: What is Medicaid?, Kaiser Family Foundation, http://www.kff.org/healthreform/upload/7920.pdf
3. SCHIP 101: What Is the State Children’s Health Insurance Program, and How Does It Work?, FamiliesUSA, http://www.familiesusa.org/assets/pdfs/SCHIP-101.pdf

Review

Syllabus-Fall 2009

HEALTH LAW & POLICY
LA 720A
Fall 2009
Wednesday 6:00 p.m. to 8:45 p.m.
Room 285

Instructor: John Aloysius Cogan Jr.
Contact information: (401) 462-9636 or jacoganjr@gmail.com
Office Hours: I am available to meet by appointment prior to class. I will also stay after class to meet with students.

Welcome to Health Law & Policy. In this class we will study how the law influences the delivery and financing of health care in the United States, as well as the legal challenges facing health care providers, regulators, and consumers. This is an exciting time to be studying these issues, and I look forward to many thought-provoking discussions with you.

We will cover a number of interrelated topics. These include: national health policy in the United States and other countries; the legal obligation to provide health care; surrogate decision-making; end-of-life issues; private health insurance and managed care (including ERISA, HIPAA and COBRA); Medicare; Medicaid and SCHIP; regulation of health care providers and facilities; staff privileges and hospital-physician contracts; antitrust; and fraud and abuse laws. I will try to follow the schedule set out in the syllabus, but it is possible will we move more quickly or more slowly than indicated.

Required Text: Health Law (6th ed.), Barry R. Furrow, Thomas L. Greaney, Sandra H. Johnson, Timothy S. Jost and Robert L. Schwartz. Additional reading materials may be specified for certain weeks. All additional reading materials will either be available free of charge on the internet or by handout.

Reading assignments in the textbook include all “Notes and Questions” included in the assigned pages unless specifically noted. Assignments do not include “Problem” sections unless specifically noted.

During the first class student will be divided into four groups (A, B, C, and D) for the purposes of discussing assignments. These group designations will remain in place all semester.

Attendance: Per law school policy, you are required to attend eighty percent of scheduled classes. The class is scheduled to meet fourteen times. Therefore, you must attend at least twelve classes. The two allowed absences are intended to cover all reasons for absences, including absences due to illness, accidental absences, religious holidays not included in the school schedule, personal needs, family needs and emergencies. If you fail to attend at least twelve classes you will automatically receive a grade of W/F. I will pass around a sign-in sheet at the beginning of each class. Please ensure that you sign in each class.

Grading: For the most part, your grade in this class will be based upon your final examination. For a minority of students (perhaps 15-20%) your grade will be modified to reflect attendance, preparation and participation. Final grade may be adjusted by up to one-half step (e.g., A to A- or B to B+). Your final examination will be a closed book exam, comprised of an essay question and several short answer questions.

WEEK 1: August 26th
Introduction to Health Law and Policy
1. Text: 1-15
2. Atul Gawande, Piecework: Medicine’s money problem, The New Yorker, Apr. 4, 2005, at 44, available at http://www.newyorker.com/fact/content/articles/050404fa_fact
3. Problem: p. 10 (“The Couple’s Illness”): Students whose last names begin with A-M prepare to argue for coverage on behalf of the Hendersons; students whose last names begin with N-Z be prepared to argue against coverage.
Approaches to Expanding Access and Controlling Costs
1. Text: 560-595
2. Problem: p. 594 (“Health Reform”) All students should work through this problem, draft a brief outline of your initial thoughts for a reformed health care system and be prepared to present your ideas to the class.

WEEK 2: September 2nd
The Obligation to Provide Care; Common Law
1. Text: 596-609
2. David Lawsky, Seattle doctors try flat-rate no-limit primary care, Reuters, July 7, 2009, http://www.reuters.com/article/email/idUSTRE5660N620090707
3. Abigail Zuger, For a Retainer, Lavish Care by 'Boutique Doctors', October 30, 2005, New York Times, http://www.nytimes.com/2005/10/30/health/30patient.html?pagewanted=1&_r=1
4. Kevin Sack, Despite Recession, Personalized Health Care Remains in Demand, May 10, 2009, New York Times, http://www.nytimes.com/2009/05/11/health/policy/11concierge.html
5. Problem: p. 607 (“Cheryl Hanachek”) Students in groups A and B should prepare arguments on behalf of Ms. Hanachek. Students in groups C and D should prepare arguments in defense of Drs. Cunetto and Simms.
6. All students consider whether and how “concierge medicine” should be regulated.
The Obligation to Provide Care; Statutory Exceptions
1. Text: 609-637
2. Problem: p. 622 (“Mrs. Miller”) Assume you are the judge in this case, draft a brief outline of your ruling on this summary judgment motion and be prepared to present it to the class. Consider whether you will call for any changes in the law.
3. Problem: p. 636 (“Emmaus House”) Students in groups C and D should assume they are the volunteer attorney for Emmaus House. What did you do when told Mr. Larkin would be transferred? Prepare to explain what claims might be made against Eastbrook Memorial and the doctor, what additional information you want and what you would have to prove to succeed.
4. Problem: p. 636 (“What Kind of Care”) Students in groups A and B should analyze whether Ms. Osborne has a claim against Westhaven or the emergency physicians. Where in Rhode Island could Ms. Osborne go for treatment of the cancer?

WEEK 3: September 9th
Private Health Insurance: an Introduction
How Private Health Coverage Works: A Primer-2008 Update, Kaiser Family Foundation, http://www.kff.org/insurance/upload/7766.pdf
Private Health Insurance and Managed Care; Contract Liability
Text: 638-653

WEEK 4: September 16th
State Regulation of Health Insurance
1. Text: 653-671
2. Problem: p. 670 (“Advising Under State Managed Care Law”) students in group A work through problem 1, group B work through problem 2, group C work through problem 3 and group D work through problem 4.
Private Health Insurance and Managed Care; Tort Liability
1. Text: 504-539
2. Problem: p. 537 (“The Overworked HMO Physician”) Students in groups C and D should prepare to advise Ms. Dawson possible approaches in a lawsuit against Sunrise.
3. Problem: p. 538 (“Wanting the Best”) Students in groups A and B should prepare to give advice to Mr. Faber about the merits of litigation against the Plan.

WEEK 5: September 23rd
Federal Regulation of Health Insurance; ERISA Preemption
1. Text: 688-710
2. Problem: Skim the 9th Circuit’s decision in Golden Gate Restaurant Ass’n v. City of San Francisco, 546 F.3d 639, 643-47 (9th Cir. 2008), available at: http://www.ca9.uscourts.gov/datastore/opinions/2008/09/29/0717370.pdf. How consistent is this decision with Retail Industry Leaders?
Federal Regulation of Health Insurance; ERISA Preemption
1. Text: 710-734, note 4 page 743
2. Problem: In her Davila concurrence (see note 4 page 743), Justice Ginsberg urged Congress to “revisit what is an unjust and increasingly tangled ERISA regime” with its “regulatory vacuum.” What could Congress do? What constituencies might object?

WEEK 6: September 30th
Federal Regulation of Health Insurance; HIPAA, COBRA and the ADA
1. Text: 748-766
2. Problem: p. 764 (“Private Cost Containment”) All students should review Amtech’s proposal and identify any potential legal problems under federal law or the Massachusetts law set out in the textbook.
Medicare
Medicare Primer, Kaiser Family Foundation, http://www.kff.org/medicare/upload/7615-02.pdf

WEEK 7: October 7th
Medicare and the MMA
1. Text: 767-796
2. Problem: p. 785 (“The Medicare Prescription Drug Benefit”) All students either (1) weigh the pros and cons of Ms. Belmont’s three pharmacy benefit plan options or (2) ask a real Medicare beneficiary or two (your great aunt, a neighbor) how they decided on a plan and their view of the choices. What are the options for a Medicare beneficiary who lives in Rhode Island? How did you find out about the options?
Medicaid and SCHIP
1. Text: 814-848
2. Explaining Health Care Reform: What is Medicaid?, Kaiser Family Foundation, http://www.kff.org/healthreform/upload/7920.pdf
3. SCHIP 101: What Is the State Children’s Health Insurance Program, and How Does It Work?, FamiliesUSA, http://www.familiesusa.org/assets/pdfs/SCHIP-101.pdf

WEEK 8: October 14th
Professional Licensing, Discipline, Complementary and Alternative Medicine
1. Text: 115-158 (Students in group D will be the class experts on Williams, group C on Hoover, group B on McDonough, and group A on Ruebke.)
2. Problem: p. 156 (“Physicians, Physician Assistants, and Nurses”) Students in groups A and B have been retained by Drs. Jones and Johnson. Prepare to advise them on whether their plans are consistent with the laws regulating practice in Allstate, and how they might comply while maintaining a low-cost practice. Students in groups C and D have been retained by Ms. Mayo. Prepare to advise her on whether she ought to affiliate with the doctors and whether her current practice is authorized in Allstate.

WEEK 9: October 21st
Staff Privileges, Hospital-Physician Contracts and Managed Care Contracts
1. Text: 849-877
2. Problem: p. 872 (“Dr. Bennett and Onyx General Hospital”) All students should be prepared to advise Onyx General Hospital on what it should do about Dr. Bennett. (There is no need to work the part of the problem involving SportsMed, Inc.)
Liability of Health Care Professionals: Standard of Care, Practical Guidelines
Text pp. 327-351

WEEK 10: October 28th
Liability of Health Care Professionals: Other Theories, Defenses to Malpractice
1. Text pp. 363-404
2. Problem: p. 380 (“The Hospital Revolving Door”) Students in groups A and C should be prepared to discuss how they would proceed against Dr. Benton.
3. Problem: p. 384 (“To Monitor or Not”) Students in groups B and D should be prepared to discuss what policies will minimize the hospital’s liability while respecting the patient’s wishes (when it is safe to do so).
The Professional-Patient Relationship; Confidentiality and Disclosure
Text pp. 195-219, 289-325

WEEK 11: November 4th
Introduction to Fraud and Abuse; False Claims Act and Anti-Kickback Statute
1. Text: 1023-1070
2. Problem: p. 1054 (“Advising Under the Fraud and Abuse Laws”) Group A analyze questions 1 and 2; group B analyze questions 3 and 4; group C analyze questions 4 and 5; group D analyze questions 5 and 6. Do any of these transactions violate the fraud and abuse laws? Aside from any legal problems, is there anything wrong with them from an ethical or public policy perspective?
Introduction to Fraud and Abuse; The Stark Law
1. Text: 1081-1094
2. Problem: p. 1092 (“Medical Directors”) All students consider what Stark issues are raised by the way ABC established the medical directorships and the way it has implemented its agreements? How helpful in determining this are the definitions of “fair market value” and “acceptable methodology”?

WEEK 12: November 11th
Introduction to Antitrust
1. Text: 1095-1106, 1160-1184
2. Problem: p. 1181 (“Evaluating a Hospital Merger in Your Community”) All students consider the merger of the two largest hospital systems in Rhode Island (Lifespan and Care New England).

WEEK 13: November 18th
Defining Death
1. Text p. 1380-1407
2. Problem: p. 1380 (“When Does Death Occur”) All students should consider and be prepared to address the questions that arise from Mr. Arcturus’ accident.

WEEK 14: No Class

WEEK 15: December 2nd
Life and Death Decisions
Text pp. 1408-1442, 1488-1496

Class Assignment for November 12, 2008

Please read the following for next week:

Medicare briefing by the Kaiser Family Foundation

Medicaid Briefing by the Kaiser Family Foundation

From the textbook:

pp. 767-796

pp. 803 (begin with administration and appeals)-813

pp. 814 (begin with Medicaid)-821

pp. 837-845

New, significant ERISA case/Class reading assignments for October 8th and October 15th

Last week the Ninth Circuit issued a significant ERISA decision in in Golden Gate Restaurant Ass'n v. San Francisco, No. 07-17372 (9th Cir. 9/30/08) in which the Ninth Circuit appears to take a contrary position to Retail Industry Leaders Association v. Fiedler (the 4th Circuit's decision in the so-called Wal-Mart case we read last week). 

In the Golden Gate case, the Ninth Circuit ruled that a San Francisco ordinance that requires city employers to make minimum health care expenditures on behalf of covered employees, either by paying into their own employee benefits plans or into a fund maintained and administered by the city, is not preempted by ERISA. The case turns, in significant part, on the Ninth Circuit's application of the Supreme Court's Travelers case from 1995. 

Based on the apparent Circuit split, I think it is pretty safe to assume that there will be an en banc review and ultimately a Supreme Court challenge to this ruling. 

The Golden Gate case is here. In light of the this important decision, we will make a slight change to this week's reading so that we can review this decision in depth. 

Previously, we were going to finish the last two ERISA cases (Pegram v. Herdrich and Aetna Health Inc. v. Davilia, Text pp. 710 to 734) and then move on to COBRA and HIPAA (Text pp. 748 to 752 (not notes, questions or problems on p. 752)) and Licensing of Health Care Professionals (Text pp. 115-128, 130-149). Instead, we will defer Pegram v. Herdrich and Aetna Health Inc. v. Davilia until next week (Wednesday October 15th). We will also go over the Golden Gate case on the 15th. When reading the Golden Gate case, please skip the section entitled "1. The City-Payment Option Does Not Create an ERISA 'Plan'" beginning on p.13927 and ending on p. 13937. Also please re-read the Retail Industry Leaders Association v. Fiedler case for the October 15th class. 

This week (October 8th) we will cover: 

(1) COBRA and HIPAA (748-752 (not notes, questions or problems on p. 752)) (this was previously assigned); 

(2) Licensing of Health Care Professionals (Text pp. 115-128, 130-149), which includes In re Williams, Hoover v. The Agency for Health Care Administration, Note: State and Federal Regulation of Prescribing Practices, Notes and Questions (not including the problem and note on 128 and 130), Complementary and Alternative Medicine, State Board of Registration for the Health Arts v. McDonagh, Notes and Questions, Unlicensed Providers (not including problem on 140), State Board of Nursing and State Board of Health Arts v. Ruebke and Notes and Questions) (this was previously assigned); and 

(3) Liability of Health Care Professionals, Text pp. 327-351, (The Standard of Care, Hall v. Hilbun, Notes and Questions, Note: Expert Testimony, Practice Guidelines as Codified Standards, Hinlicky v. Dreyfuss and Notes and Questions) (this is a new addition to the reading for this Wednesday).

September 17th Class: Reading Assignment

We will continue with EMTALA, then move on to the Americans With Disabilities Act, Section 504 of the Rehabilitation Act and Title VI. Please be prepared to discuss the cases and material found in pp. 609-636 of the text (Section I. D. of the syllabus).

We will then discuss private health insurance. Please be prepared to discuss the cases and material found in pp. 638-660 of the text (Section II. A., B. & C. of the syllabus).

Joint class: "Unnatural Causes: Is Inequality Making Us Sick?"

Next Wednesday we will attend a class in the course “Poverty, Health and Law: The Medical-Legal Collaborative,” which has joint class sessions with Brown Medical School students to view the PBS documentary, “Unnatural Causes: Is Inequality Making Us Sick?”.

Please come to our regular classroom first (room 285). Then we will go across the hall to see the movie in the courtroom (room 283) and participate in the discussion. After the movie and discussion, we will return to our own classroom.

REQUIRED READING
The following should be read prior to class on September 10 (each contains a link to a pdf article):

1. Kaiser Permanente Institute for Health Policy, “Issue Brief: Racial and Ethnic Health Disparities”

2. “Why Pediatricians Need Lawyers to Keep Children Healthy,” Barry Zuckerman, MD, Megan Sandel, MD, MPH, Lauren Smith, MD, MPH and Ellen Lawton, JD, Pediatrics, 114, no. 1 (July 2004): 224-228

3. “The Role Of Health Insurance Coverage In Reducing Racial/Ethnic Disparities In Health Care,” Marsha Lillie-Blanton and Catherine Hoffman, Health Affairs, 24, no. 2 (2005): 398-408


4. “Social Sources Of Racial Disparities In Health,” David R. Williams and Pamela Braboy Jackson, Health Affairs, 24, no. 2 (2005): 325-334

5. “Reaching for a Healthier Life: Facts on Socioeconomic Status and Health in the U.S.,” from The John D. and Catherine T. MacArthur Foundation Research Network on Socioeconomic Status and Health, 2007

The following are NOT required, but recommended:

1. “Racial And Ethnic Health Disparities And The Unfinished Civil Rights Agenda,” David Barton Smith, Health Affairs, 24, no. 2 (2005): 317-324

2. “Revisiting the Social History for Child Health,” Pediatrics, 120, no. 3 (September 2007): e734-e738, Chén Kenyon, MD, Megan Sandel, MD, MPH, Michael Silverstein, MD, Alefiya Shakir, MD and Barry Zuckerman, MD

3. The Office of Minority Health and Health Disparities, Centers for Disease Control and Prevention (website) (a component of the United States Department of Health and Human Services)

4. Kaiser Family Foundation website on Minority Health and Racial Disparities

5. Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care, Brian D. Smedley, Adrienne Y. Stith, and Alan R. Nelson, Editors, Committee on Understanding and
Eliminating Racial and Ethnic Disparities in Health Care (free executive summary of book is available as a pdf download)