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)

Syllabus for Health Law & Policy-Fall 2008

HEALTH LAW & POLICY
LA 720A
Fall 2008

Professor John Aloysius Cogan Jr.
Phone: 401-462-9636
Email: jcogan@ohic.ri.gov


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.

Attendance: Class meets on Wednesday evenings at 6:00 PM. I will adhere to the law school's policy on attendance, which requires your attendance for at least eighty percent of scheduled classes. The class is scheduled to meet fourteen times, however, the first class, August 27th will not count as attendance will not be taken. This leaves thirteen classes for which attendance will be taken. Therefore, you must attend at least eleven classes after August 27th. Beginning on September 3rd, you will be asked to sign in for each class and to indicate on the sign in sheet whether you are prepared to discuss the material assigned for that class. Please do not indicate that you are prepared unless you have read the assigned material and are prepared to participate in class discussions. If you are exceptionally conscientious (or exceptionally deficient) about attendance, preparation, and class participation, your final grade will be adjusted accordingly.

This will be a large class. At the time this syllabus was written there are 46 students registered for this class. I have been informed that more students may wish to be added. I have no objection to adding more students, as long as there are enough seats in the classroom to accommodate the number of students in the class.

Grading: For the most part, your grade in this class will be based upon your final examination. For a minority of students (perhaps 20-25%) your grade will be modified to reflect attendance, preparation and participation. Your final examination will be a closed book exam, comprised of multiple choice and short answer questions.

Assignments: We will follow the following outline in order, but no dates are carved in stone to cover any one subject except for Health Disparities on October 10th. I reserve the right to spend more or less time on a subject if warranted. At the end of each class I will let you know what you will be responsible for during the next week.

I. ACCESS TO HEALTH CARE/DISPARITIES

A. Introduction

Text pp. 596-600

B. Common Law Approaches

Text pp. 600-608

Ricks v. Budge
Childs v. Weis
Williams v. US
Notes and Questions
Problem: Cheryl Hanachek

C. Health Disparities

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. On Wednesday, September 10th, we will view the PBS documentary, “Unnatural Causes: Is Inequality Making Us Sick” (http://www.pbs.org/unnaturalcauses/index.htm) in the courtroom (room 283) with law and medical students as well as others from the RWU community who are interested. Christine Sommer, the executive producer of the documentary will be there to discuss the film. The film is 56 minutes and then we’ll have some discussion with Ms. Sommer.
Handouts (to be distributed on September 3)

D. Statutory Exceptions to the Common Law

Text pp. 609-636

EMTALA
Baber v. Hospital Corporation of America
Notes and Questions
Problem: Mrs. Miller
The Americans With Disabilities Act and Section 504 of the Rehabilitation Act
Bragdon v. Abbott
Howe v. Hull
Notes and Questions
Title VI

II. PRIVATE HEALTH INSURANCE, STATE AND FEDERAL ROLES

A. Insurance and Managed Care: Some Basic Concepts

Text pp. 638-647

The Concept of Managed Care
How Not to Think About “Managed Care”
The Concept of Insurance
Congressional Research Service, Insuring the Uninsured: Options and Analysis

B. Contract Liability of Private Insurers and Managed Care Organizations

Text pp. 648-653

Lubeznik v. HealthChicago, Inc.

C. Regulation of Private Health Insurance Under State Law

Text pp. 653-660

Colonial Life Insurance Company of America v. Curiale

D. The Federal Role

Text pp. 688-704

Introduction
ERISA Preemption of State Health Insurance Regualtion
Rush Prudential HMO, Inc. v. Moran
Notes and Questions

Text pp. 704-710

ERISA Preemption and State Health Care Reform
Retail Industry Leaders Association v. Fiedler
Notes and Questions

Text pp. 710-734

Pegram v. Herdrich
Notes and Questions
Aetna Health Inc. v. Davilia

Text pp. 748-752 (not notes, questions or problems on p. 752)

COBRA and HIPAA

III. PROMOTING QUALITY

A. Licensing of Health Care Professionals

Text pp. 115-128, 130-149

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
Notes and Questions

B. Liability of Health Care Professionals

Text pp. 327-351, 363-380

The Standard of Care
Hall v. Hilbun
Notes and Questions
Note: Expert Testimony
Practice Guidelines as Codified Standards
Hinlicky v. Dreyfuss
Notes and Questions
Negligent Infliction of Mental Distress
Strasel v. Seven Hills OB-GYN Associates, Inc.
Notes and Questions
Duty to Consent to Reimbursement Services
Wickline v. State
Notes and Questions
(not including problem on 380)

Text pp. 381-384, 386-404
Standard of Care Exception
Chumbler v. McClure
Henderson v. Heyer-Schulte Corp.
Notes and Questions
(not including problem on 384)
Clinical Innovation
Brook v. St. John Hickey
Notes and Questions
Drug Therapy Innovations
Richardson v. Miller
Notes and Questions

C. The Professional-Patient Relationship

Text pp. 195-219
Esquivel v. Watters
Notes and Questions
The Contract
Millard v. Corrado
Notes and Questions
Mills v. Pate
Notes and Questions

Text pp. 289-325
Humphers v. First Interstate Bank or Oregon
Notes and Questions
Does v. Medlantic Health Care Group
Notes and Questions
Federal Medical Privacy Standards
Herman v. Kratche
Standards for Privacy of Individually Identifiable Health Information
Notes and Questions
Acosta v. Byrum
Notes and Questions

D. Liability of Health Care Institutions

Text pp. 437-480

Introduction
Agency Law and Test of Control
Grimm v. Summit County
Notes and Questions
Medical Staff and Hospital Governance
Scott v. SSM Healthcare
Notes and Questions
I ndependent Contractors
Burless v. West Virginia University Hospitals, Inc.
Notes and Questions
(not including problem on 455)
Negligence
Washington v. Washington Hospital
Notes and Questions
Duties to Treat Patients
Muse v. Charter Hospital
Notes and Questions
Corporate Negligence
Darling v. Charleston Community Memorial Hospital
Notes and Questions
Thompson v. Nason Corp.
Notes and Questions
Negligent Credentialing
Carter v. Hucks-Folliss
Notes and Questions

IV. MEDICAID AND MEDICARE

Handout

V. LIFE AND DEATH DECISIONS

Text pp. 1408-1442

Introduction
Right to Die
Cruzan v. Director, Missouri Department of Health
Notes and Questions
Patients Deciding For Themselves
Problem: The Christian Scientist
Bouvia v. Superior Court
Notes and Questions
Countervailing State Interests
(not including problem on 1435)
The Right to Refuse for Religious Reasons
Application of the President and Directors of Georgetown College, Inc.
Notes and Questions
Public Health Trust of Dade County v. Wons
Notes and Questions