Florida Law
Florida Health Law
- Health Law
Health Law
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 malpractice is discussed in the Personal Injury Defense Law: Medical & Professional Malpractice Chapter.
Access to the Health Care System
The state of Florida has some of the finest health care providers and facilities, yet Florida residents may face 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.
Federal and state laws governing the medical industry clearly forbid health care providers from discriminating 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. Florida statutes also forbid discrimination in the provision of health care services. For instance, it is unlawful for a hospital to refuse to treat a patient based on HIV or AIDS status, or to require a person to submit to an HIV test as a condition of admission or treatment.
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 health care provider's concern about being reimbursed for services, people face barriers. For example, 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, worried about spreading the disease, or objected to the lifestyles they assumed AIDS sufferers led. As noted, such discrimination is against the law. 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.
Paying for Health Care
For some, the most important health care issue is paying for it. Several government-sponsored health care programs, administered primarily by the Florida Department of Health and Rehabilitative Services, provide payments to health care providers for care given to Florida residents. In most cases, medical professionals have a right to payment within 30 days.
Medicaid
Medicaid is a cooperative program, funded partly by the federal government and partly by the individual states, which provides health care to needy persons. It is administered primarily by each state, which has wide latitude in deciding how Medicaid operates within the state. In Florida, Medicaid is administered by the Florida Department of Health and Rehabilitative 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 Florida, eligibility for Medicaid is determined by a calculation that considers the person's monthly income and value of resources. The person's home and the person's garden or livestock grown and used for consumption by the applicant and his or her family are not counted in the eligibility determination.
Eligible persons receive medically necessary health care. They pay a small copayment of $2 for some services; other services are free to the recipient. The Department reimburses the health care practitioner for services provided. Mandatory Medicaid services include:
- Family planning services
- Home health care services
- Hospital inpatient and outpatient services
- Laboratory services
- Nursing facilities
- Physician and advanced registered nurse practitioner services
- Rural health services
Additionally, some medically necessary services may be covered, including services provided by ambulatory surgical centers, birth centers, chiropractors, hospices, physicians' assistants, and state mental hospitals, among others.
Some people may be eligible for Medicaid benefits even if they do not qualify initially. A person may receive medical assistance if he or she fits one of the following categories:
- Has income at or below the poverty level and is 65 years of age or older
- Has income at or below the poverty level and is disabled
- Is medically needy: 65 years of age or older, 18 years of age or younger, pregnant, disabled, or a family, and meets all other requirements except for income or assets limitations
- Needs the services of a licensed nursing facility, state mental hospital, or licensed intermediate care facility for the mentally retarded
- Meets all requirements except citizenship and needs emergency medical services
People may qualify for optional supplementation monthly payments for health care. Anyone who receives SSI or meets eligibility determination by the Department may receive such payments, which are meant to contribute to the health care of people who do not qualify for Medicaid but have medical needs that may be met with excess funds by the Department.
Medicare
Medicare should not be confused with Medicaid. Despite their similar names, they are different programs. Medicare is a program funded and administered entirely by the Social Security Administration of the federal government to provide health care to elderly persons and people with disabilities. Medicare coverage is uniform throughout the country. Medicare has become an enormous federal program, providing billions of dollars in coverage every year.
Medicare Parts A and 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 still may 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.
Medicare recipients have the right to choose how they will receive hospital, doctor, and other health care services covered by Medicare. One option is the traditional fee-for-service system. Under this system, the recipient visits a hospital or doctor of his or her choice and pays a fee for any services provided. Medicare will pay a percentage of that fee, but the recipient is responsible for certain deductible and coinsurance payments.
Medicare never was 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
- Routine adult 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
Costs not Covered by Government-Sponsored Benefit Programs
Because Medicare and Medicaid are limited in terms of eligibility and services provided, many people look for some form of private insurance to supplement or replace 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 (HMO). HMOs are organizations which offer a wide range of health care services in exchange for a fixed premium paid in advance. One drawback of an HMO, however, is that health care services may be provided only by a member of the HMO's health care network.
Another option for financially needy Floridians is to enroll in the MedAccess Program, which was begun in 1994. A Florida resident with a gross family income equal to or below 250 percent of the federal poverty level, and who has not been covered by health insurance benefits for one year, is eligible for this program. Participants pay premiums as part of the eligibility criteria. MedAccess pays for the following benefits provided by covered health care providers:
- Health appraisals, such as physical examinations and tests
- Hospital inpatient and outpatient care
- Immunizations and laboratory services
- Outpatient substance abuse and mental health treatment
- Physician and advanced registered nurse practitioner services
Employers may participate in MedAccess by paying all or part of an employee's premium. Recipients of Medicare or Medicaid are not eligible for MedAccess.
Health Care Providers' Responsibilities
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 obtaining that person's informed consent first. 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 malpractice.
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.
Advanced Health Care Directives
An advanced health care directive is a legal tool used to help people plan their future medical care in the event of illness or incapacity. Not only do advanced directives enable a person to have a voice in health care decision making, even when he or she is unconscious or too ill to communicate, but they provide guidance and some degree of comfort to loved ones who may be called upon to make difficult health care decisions. Basically, there are two kinds of advanced directives: the living will and the designation of a health care surrogate.
Living Will
Despite its name, a living will is not a will at all. A living will is a document specifying what medical procedures should be taken to prolong a person's life in the event that he or she becomes terminally ill and unable to communicate. Properly prepared, a living will provides a definitive statement of a person's wishes and a clear guide to family members and attending physicians who must decide how aggressively to use medical treatments to delay a person's death. An example of a living will can be found in the Estate Planning, Wills & Trusts Law Chapter. Under Florida law, a living will must be signed in the presence of two witnesses, one of whom is not related to the person signing the living will. If a person is physically unable to sign his or her own living will, one of the witnesses may sign for the person at his or her direction.
Designation of a Health Care Surrogate
A health care surrogate is a person authorized to make health care decisions on behalf of someone else -- the principal -- in the event the principal is incapacitated. This authorization is sometimes referred to as a "health care proxy" or a "durable power of attorney for health care."
Florida law specifies that any designation of a health care surrogate must take the form of a written document, signed by the principal in the presence of two witnesses, one of whom is not related to the principal. The person designated as the surrogate may not be a witness. The document designating the surrogate may designate an alternate surrogate should the surrogate be unable or unwilling to perform his or her duties.
When choosing a surrogate, it is important that the principal choose someone with whom he or she feels comfortable, someone who appreciates and understands the principal's religious and moral beliefs, and who is willing and emotionally capable of assuming the responsibility.
Executing a living will and designating a surrogate is the best way to prepare for the possibility of incapacity. A living will provides a clear statement of a person's wishes, while a health care surrogate permits a trusted friend or family member to consider any new variables unanticipated during the drafting of the living will.
Sample Designation of Health Care Surrogate
I, (principal's name), hereby designate (name and address of designate)to make health care decisions on my behalf in the event I have been determined to be incapacitated and unable to provide informed consent for medical treatment and surgical and diagnostic procedures.
If my surrogate is unwilling or unable to perform his (or her) duties, I wish to designate as my alternative surrogate (name and address of alternate surrogate).
I fully understand that this designation will permit my designee to make health care decisions and to provide, withhold, or withdraw consent on my behalf; to apply for public benefits to defray the cost of health care; and to authorize my admission to or transfer from a health care facility. (Additional instructions optional.)
I further affirm that this designation is not being made as a condition of treatment or admission to a health care facility. I will notify and send a copy of this document to the following person other than my surrogate, so they may know who my surrogate is.
Other Person's Name: __________________________________
Street: __________________________________
City, State, ZIP: __________________________________
Signed: __________________________________
Date: __________________________________
Witness: __________________________________
Date: __________________________________
Witness: __________________________________
Date: __________________________________
Patient Information and Confidentiality
In Florida, anyone who has received a physical or mental examination or treatment has a right to a copy of the record of such treatment. The law requires that the health care practitioner who receives a patient's request for medical records must furnish the records in a timely manner and without delay. Medical records include reports, x-rays, insurance information, and any other record of examination or treatment.
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. Neither does it prevent the release of records to public health officials, or to persons designated by the patient as authorized to receive records or information.
Florida law specifies that health care practitioners, including physicians and psychiatrists, and public health department workers are bound by confidentiality rules. Any communications, patient records, or diagnostic or treatment information must be kept confidential. Further, 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.
These protections will be set aside if they conflict with other public policies. One area in which strong public policy has mandated exceptions to confidentiality rules is in the area of testing and treatment for HIV, the virus that causes AIDS. The state of Florida allows a health care practitioner to disclose a person's HIV-positive status under some circumstances. A health care practitioner may notify a person's sexual partner or needle-sharing partner that the person is HIV-positive if one of the following conditions exists:
- The identity of the sexual partner or needle-sharing partner was disclosed to the health care practitioner
- It is the practitioner's recommendation that the person's HIV-positive status be disclosed to the sexual partner or needle-sharing partner, the practitioner has explained to the person the need to refrain from activity likely to transmit the virus, and the practitioner has informed the person of his or her intent to inform the partner
- The practitioner believes that informing the sexual partner or needle-sharing partner reasonably and in good faith is mandated by civil duty or ethical guidelines
Health care practitioners who disclose a person's HIV-positive status under these circumstances may not be civilly or criminally liable for the disclosure. Health care practitioners also are obligated to report HIV-positive results to the Department of Health and Rehabilitative Services. Otherwise, a person's HIV-positive status is confidential information.
HIV Testing
Because of the discrimination many HIV-positive people face, there is concern for confidentiality and anonymity during any HIV test. While all clinics, hospitals, and 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.
Florida statutes impose further obligations on testers. Anyone performing an HIV test must obtain the subject's informed consent and document the fact of the consent in the patient's medical record. If the person tests positive, the test result may be revealed to the person only under circumstances that allow the person to have face-to-face counseling about the ramifications of the test. The counselor must be able to explain to the person the meaning of the results; whether additional tests are required; how to prevent transmission of HIV; what health care services are available in the immediate area, including mental health care, social services, and public health services; and the benefits of contacting anyone from whom HIV may have been contracted and to whom HIV may have been transmitted.
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, Florida revised its probate code to govern the donation of bodies and body parts for transplant, medical, and scientific purposes.
Under this law, any person who is at least 18 years of age and otherwise eligible to make a will 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 one's 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 by a relative or guardian also may be made orally. An intent to make a gift can be revoked orally, if witnessed, 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 authority to donate another person's body is allowed only in the absence of a contrary intention by the person. 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 human organs or tissue, including human embryos. The recipient may not pay for an anatomical gift but may pay for the actual cost of transportation and transplant.
Employee Health Care
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 for health care reform by politicians. 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.
Resources
Choice in Dying, 1-800-989-WILL, has information regarding advanced health care directives; free sample living wills and power of attorney documents.
The Florida Agency for Health Care Administration, 2727 Fort Mahan Drive, Tallahassee, FL 32308, (904) 922-3809, has information about Medicaid services and claims; call (904) 487-3183 for consumer information.
Medical Quality Assurance Division, 1940 North Monroe Street, Tallahassee, FL 32399 (904) 488-7176.
The Florida Department of Health and Rehabilitative Services, Economic Services Program Office, 1317 Winewood Boulevard, Building B 5 Room 416, Tallahassee, FL 32399-0700, (904) 487-1111, has information about Medicaid eligibility.
Health Care Law: A Practical Guide, Michael G. Macdonald, et al., Matthew Bender, 1993.
Patient Care Decision-Making: A Legal Guide for Providers, Clare C. Obade, Clark Boardman Callaghan, Deerfield, IL, 1994.
Call the Social Security Administration at 1-800-772-1213 for the free pamphlet: Understanding Social Security
Health Care Law 1993, Bennett J. Yankowitz and Richard A. Feinstein, Practicing Law Institute, New York, NY.