• Health Law
  • Access To The Health Care System
    • Paying for Health Care
    • Medi-Cal
      • Medicare
        • Medicare Parts A & B
        • Costs Not Covered by Medicare
      • Insurance Issues
    • Access to Facilities
  • Health Care Providers' Responsibilities
    • Consent to Care
    • Providing Medical Records
    • Confidentiality
    • HIV Testing
    • Anatomical Gifts
    • Reporting Abuse
  • Employee Health Care
  • Resources

Health law is a relatively new area of legal specialization. Many lawyers are attracted to this evolving area of practice. Their clients range from health care consumers seeking assistance to pay for health care to large corporate health care providers seeking to buy nursing homes. Because of the diversity of clients, the health law practice area has numerous subspecialties.

This chapter covers subjects of most interest to businesses and health care providers. Employee benefits plans are discussed in the Employee Benefits Law Chapter. Medical negligence is discussed in the Personal Injury Defense Law: Professional Negligence Chapter.

The state of California has some of the finest health care providers and facilities, yet California residents may face a number of access hurdles before receiving treatment. Patients, their families, and health care institutions all need to be aware of the legal framework that exists to guarantee access to health care.

Paying for Health Care

For some, the most important health care issue is paying for health care. Several government-sponsored health care programs, administered primarily by the California Department of Health Services, provide payments to health care providers. In most cases, medical professionals have a right to payment within 30 days.

Medi-Cal

Medi-Cal should not be confused with Medicare. Despite their similar names, these are different programs. Medicare, described below, is a program funded and administered entirely by the federal government to provide health care to elderly persons and people with disabilities. Medicare coverage is uniform throughout the country. Medicaid, called Medi-Cal in California, is a cooperative program funded partly by the federal government and partly by the individual states and administered primarily by the states. It provides health care to needy persons. Each state has wide latitude to decide how Medicaid operates within the state. Medi-Cal is administered by the California Department of Health Services.

The federal government's role in Medicaid is quite limited. It pays a percentage of the cost of each state's health care program for indigent people and ensures that every state's program complies with various federal requirements. The amount of money a state receives from the federal government is called the Federal Financial Participation (FFP). Each state's FFP is determined by a formula based on the state's per capita income and the amount of medical services the state chooses to provide to needy people within the state. To receive Medicaid, a person must have assets with a low value and very low income as determined by a complex formula.

In California, there are several ways to qualify for Medi-Cal. A person who qualifies for Supplemental Security Income (SSI) or Aid to Families with Dependent Children (AFDC) usually also qualifies for Medi-Cal. In addition, a person who is blind or has a disability, or who is 65 years of age or older, is described as "medically needy" and will receive Medi-Cal benefits by promising to make monthly "share of cost" (SOC) payments. Pregnant women who do not qualify for AFDC, recent refugees to California, and people who live in certain nursing or care facilities and who are age 21 to 65, are described as "medically indigent" and also qualify for Medi-Cal.

To qualify, generally a person may not have more than $2000 in assets, although there is a complex formula applied that considers the applicant's unique situation. There are several assets the formula does not count, including the homestead, one motor vehicle, household goods, and personal effects. A person is allowed to reduce his or her assets with the intent of qualifying for Medi-Cal, as long as reductions are made in accordance with Medi-Cal rules. Generally, this means transfers must be compensated.

Medicare

Medicare is a federal program administered by the Social Security Administration designed to cover some basic medical and health care costs of eligible individuals over age 65, as well as many people with disabilities. Medicare has become an enormous federal program, providing billions of dollars in coverage every year.

Medicare Parts A & B

Medicare has two basic divisions, called Part A and Part B. Medicare Part A, commonly known as Hospital Insurance, covers medically necessary hospital and related health care. Included in Part A are costs for such expenses as inpatient hospital care necessitated by acute illness, skilled nursing home care, certified hospice care for the terminally ill, inpatient psychiatric care, and care in the home by a certified home health care provider.

Medicare Part B, commonly known as Medical Insurance, is a voluntary health insurance program designed to cover some of the costs not covered by Medicare Part A, such as outpatient hospital services, outpatient physical therapy, speech pathology services, necessary ambulance service, and medical equipment. Unlike Part A, which is paid for out of Social Security taxes and is free to anyone who qualifies, Part B is an optional program that carries a small monthly premium.

People qualify for Hospital Insurance when they turn 65 years old or if they are covered by Social Security or Railroad Retirement benefits. The person need not actually be receiving financial benefits through either of these two programs in order to receive Medicare benefits. Anyone age 65 or older not eligible for Social Security or Railroad Retirement benefits may still receive Medicare Part A coverage by paying a monthly premium. Medicare Part B coverage is available automatically to anyone who qualifies for Medicare Part A benefits. In fact, all applicants for Medicare Part A benefits are enrolled automatically in Medicare Part B unless they opt out of Part B coverage. The federal government contracts with private insurance companies to handle routine claims processing, payment, and other functions under Parts A and B.

Costs Not Covered by Medicare

Medicare was not intended to provide comprehensive coverage for all medical needs of America's elderly population, but rather was intended to supplement private resources. Many health services are not covered by Medicare. For example, Medicare does not pay for:

• custodial care intended to help the patient with his or her daily living needs_such as bathing, walking, or exercising--by someone without medical training

• dentures or routine dental care

• eyeglasses, hearing aids, and examinations to prescribe or fit them

• nursing home care (except skilled nursing care)

• prescription drugs

• routine physical checkups and related tests

Insurance Issues

Many people look for some form of private insurance to supplement Medicare and other government-sponsored health coverage. Some people are insured through their jobs, and even when they retire may be able to get continuation or conversion coverage from these group policies. Another popular option is to join a Health Maintenance Organization.

In California, additional Medi-Cal programs help older people and people with disabilities pay for their Medicare coverage. These programs, which include the BUY-IN, the Qualified Disabled Working Individual, the Qualified Medicare Beneficiary, and the Specified Low-Income Beneficiary Programs, pay Medicare premiums for qualified participants. These programs are run by the California Department of Health Services.

Access to Facilities

Hospitals rarely refuse to treat a patient if the patient has health care insurance, but sometimes hospitals do refuse to admit patients. Federal and state laws governing the medical industry clearly forbid health care providers to discriminate in deciding whom to treat. The Internal Revenue Service requires hospitals to admit all paying members of their communities in order to enjoy tax exempt status. The Hill-Burton Act, which provides construction grants for many hospital projects, requires hospitals receiving grants under its programs to admit all paying patients. Medicare and Medicaid require all participating hospitals to provide care to all covered patients.

Fortunately, most of these laws guaranteeing access to health care facilities are invoked infrequently. Most hospitals are eager to admit patients. Sometimes, however, because of prejudices or a hospital's concern about being reimbursed, Medicare or Medi-Cal recipients have more difficulty accessing hospitals. The AIDS epidemic has made accessibility an issue in some recent cases in which hospital decision makers were concerned with the potentially enormous costs of fighting the disease, were worried about spreading the disease, or objected to the lifestyles they assumed AIDS sufferers led. Hospitals and other providers of health care should be aware of the laws in this area, and should know that refusing a person health care based on personal bias is illegal.

Once a patient and a health care provider have formed a relationship inside the health care system, the law guarantees the patient certain rights and requires certain duties of the health care provider. In addition to a general right to good medical care, which includes being informed of who is treating the patient, the recipient of health care has a right to informed consent, to refuse treatment, to access to medical records, and to confidentiality.

Consent to Care

In general, a doctor may not diagnose or treat a patient without first obtaining that person's informed consent. Informed consent means the person has given consent after receiving all relevant information about the treatment, including the risks. Failure to get informed consent for treatment can subject the doctor to charges of battery, invasion of privacy, or negligence.

Under some circumstances, the patient's consent is not required. If the person cannot consent for himself or herself, a conservator or close relative may give permission for medical treatment. In an emergency, the head of a health care facility will consent to treatment if a patient's close relatives cannot be reached. A patient's consent to treatment will be implied when the patient is unable to give consent and an emergency exists, or when the patient can give consent but sufficient time does not exist to properly inform the patient of all risks and alternatives. Minors generally need to have the approval of a parent or guardian to undergo a medical or surgical procedure. Most doctors know they should not treat a patient without obtaining permission, so disputes in this area rarely center on whether a doctor had permission. More often, disputes turn on whether the doctor disclosed sufficient information for the patient's consent to be informed, or whether the doctor went beyond the consented actions.

Informed consent means a patient must be given information about the foreseeable results and risks of a particular procedure and the reasonable alternatives. The physician does not have to disclose every possible risk. It is up to the doctor to decide what to tell the patient, based on the patient's best interests. All of this must be communicated in language the patient is likely to understand. Experimental procedures or research may not be performed on a patient without the patient's consent prior to the procedure or research.

The law also gives patients the right to refuse treatment or medication. Patients who refuse recommended treatments must be informed of the likely medical and psychological results of such refusal, and documentation should be placed in the medical record. The right of parents to refuse medical treatment for their children is more limited.

Providing Medical Records

In California, patients have the right to inspect their medical records. The law requires that a patient wishing to inspect his or her records make the request to the health care provider in writing, and that the records be made available within five days after the request. The patient is responsible for paying copying and other administrative costs.

If the health care provider chooses to do so, a summary of the patient's record may be provided instead. A summary must be made available within ten days of a written request. The summary must have detailed information for each injury or illness treated by the health care provider, including:

• the patient's chief complaint

• information regarding the results of treatment by other doctors

• the diagnosis

• treatment plan, including medication prescribed, and the results of the treatment plan

• prognosis

• reports from diagnostic tests and procedures

• discharge summary

• objective findings from the most recent follow-up examination, such as laboratory test results, blood pressure, and weight

Confidentiality

California law provides that health care providers must maintain the confidentiality of patients' medical records and any information patients provide them. Evidentiary rules prohibit the introduction in court of confidential communications between a patient and a health care provider. The public policy behind this rule is the promotion of complete communication between doctors and their patients. Also under the law, a health care provider must have the patient's consent to release records to a third person. This general law does not prevent a doctor from releasing records to another doctor in an emergency for the purpose of treating the patient. Nor does it prevent the release of records to public health officials.

Both of these protections will be set aside if they conflict with other public policies. For example, a doctor who is told by a patient that the patient plans to kill a particular person has a legal obligation to warn that person. Also, doctors have an obligation to report to the police anyone who comes for treatment of a suspicious wound, such as a stab or gunshot wound. Confidentiality also may be relinquished by people who are HIV-positive. The state of California requires that a diagnosis of HIV-positive status be reported to a county health officer. A physician also may report a person's HIV-positive status to a person the physician reasonably believes is the subject's spouse, sexual partner, or someone with whom the subject has shared needles. Although the physician is obligated by law to seek consent from the HIV-positive person before revealing the information, the physician will not be criminally or civilly liable for the disclosure.

HIV Testing

Clinics and hospitals in California test patients for HIV, the virus that causes AIDS. Because of the discrimination many HIV-positive people face, there is concern for the confidentiality and anonymity of the test. While all health care providers are required to respect a patient's confidentiality, some clinics are committed to anonymous testing. At these sites, fictitious names or code numbers are used to hide the patient's identity.

Anyone interested in providing HIV testing should understand the important distinction between anonymous testing and confidential testing. A test can be confidential yet still be recorded on a patient's permanent record. Anyone with access to that record, including doctors, insurance companies, and health departments, can learn that the person was tested. If the testing is anonymous, no one at the testing site knows the person's true identity, so the test never becomes part of the person's permanent medical record.

Anatomical Gifts

Many people want to donate their bodies to science when they die. Many human organs can be transplanted into another person, giving the recipient a chance at a longer or more productive life. A wide variety of institutions also need bodies and organs for scientific, medical, and educational purposes. Unfortunately, many potential transplant recipients and many scientific and educational institutions are unable to get sufficient donations because too few people are willing to donate or do not know how to make their wishes known. To solve this problem, California adopted the Uniform Anatomical Gift Act to govern the donation of bodies and body parts for transplant, medical, and scientific purposes.

Under this law, a person of sound mind, who is at least 18 years of age, may donate all or part of his or her own body. There are several ways for a donor to record his or her wish to make a donation. The donor may make the donation a provision in a will. If it is part of a will, the provision becomes effective immediately upon death, unlike other provisions of the will that need to go through probate before they become effective. A will is not the best place for a donation, however, because its terms may not be known immediately upon death. A more common form of recording the wish to make a donation is through use of a donor card, often carried in a wallet.

A written donation must be signed by the donor and witnessed by at least two other people. A donation also may be made orally. Oral donations are effective if witnessed by at least two other people. A dying patient may communicate his or wish to make a donation to an attending physician who will act as one of the required witnesses. The attending physician must not be the physician who removes or transplants the organ. An intent to make a gift can be revoked orally or in writing.

If a dying person is unable to communicate and has not made his or her wishes known, a family member or guardian can make a gift of all or part of another person's body. There are statutorily prescribed categories of people who are authorized to make the gift, including the spouse, an adult child, a parent, an adult sibling, or a guardian. The law provides the exact method of authorization, as well as how people may object to making a donation.

The law forbids the sale of body parts. The recipient may not pay for an anatomical gift but may pay for the actual cost of transportation and transplant.

Reporting Abuse

By law, certain members of society, by virtue of their professions and positions, are required to report child abuse. Persons required to report abuse--known as mandated reporters--include health care professionals; child protective agency employees, such as law enforcement officers; child care custodians, such as teachers or camp administrators; firefighters; animal control or humane society officers; and commercial film and photographic print processors. Virtually anyone who works directly with children to provide care, protection, and supervision is required to report instances, actual or suspected, of child abuse.

Mandated reporters are obligated to report any abuse or neglect immediately to a child protective agency. Failure by a mandated reporter to report suspected child abuse is a misdemeanor. Mandated reporters also may be liable in civil actions for damages when the failure to report results in the abuser having the chance to hurt the child again.

Persons who report abuse or neglect in good faith are immune from civil or criminal liability. This means that if an investigation shows there was no abuse, the reporter cannot be sued as long as he or she reported the alleged child abuse with an honest belief and without knowledge of any facts or events contradicting the abuse or neglect.

Child protective agency workers must request information from a person reporting child abuse. Although it is confidential and may not be disclosed from the report except under limited circumstances, the reporter must give his or her name. To expedite the attention given to a child in an abusive or neglected situation, the reporter also should have the following information ready to report:

• name and present location of the child

• the nature and extent of the injury, and any evidence of prior abuse

• any other information regarding the child or family that might be helpful

Health care providers in California also are mandated reporters of elder abuse. Reports of abuse should be made to a law enforcement agency or the county Adult Protective Services agency at the Department of Social Services. The reporting procedures and immunity provisions are similar to those that cover mandated reporting of child abuse.

A business owner or manager may be quite concerned with understanding the complexities of employee health care and the many state and federal regulations governing it. As health care costs rise, many business owners have found it impossible to continue to give their employees the same level of benefits they once had. At the same time, individual health policies have become prohibitively expensive, leaving more than 34 million Americans uninsured. Health care issues have become a major reason for strikes and other labor disputes. In addition, workers are increasingly pushing politicians for health care reform. How these reforms progress and the shape they eventually assume will have a tremendous effect on businesses. Many employers, whether large or small, may wish to seek an attorney's help to keep track of the many changes taking place.

Publications of interest to a business facing health law issues include:

Michael G. Macdonald, et al., Health Care Law: A Practical Guide (Matthew Bender, New York, NY 1993).

Clare C. Obade, Patient Care Decision-Making: A Legal Guide for Providers (Clark Boardman Callaghan, Deerfield, IL 1994).

Bennett J. Yankowitz & Richard A. Feinstein, Health Care Law 1993 (Practising Law Institute, New York, NY 1993).

For information about Medi-Cal, or to order California Health Care Access Programs (Spring 1995), a free listing of services, contact the California Department of Health Services, Medi-Cal Operations Division, 714 P Street Room 1540, Sacramento, CA 95814, (916) 657-0582.

For information on SSI eligibility and adult/elder services, including protective services, contact the California Department of Social Services, Adult Services Division, 744 P Street Mail Stop 17-01, Sacramento, CA 95814, (916) 657-2652.

To report child abuse, contact the Children and Family Services Division of the Office of Child Abuse Prevention, 744 P Street, Mail Stop 19-82, Sacramento, CA 95814, (916) 445-2771.

The Social Security Administration, (800) 772-1213, can be contacted for a copy of the free pamphlet Understanding Social Security.