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

Another option for financially needy Floridians is to enroll in the MedAccess Program, which began 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

Consent to Care

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

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.

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.

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 health care surrogate 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 persons 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

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

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.

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.

Medical Quality Assurance Division, 1940 North Monroe Street, Tallahassee, FL 32399, (904) 488-7176.

Agency for Health Care Administration, 2727 Mahan Drive, Fort Knox Building 2, Tallahassee, FL 32308-5403, (904) 922-8435, 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.

Understanding Social Security. Call the Social Security Administration at 1-800-772-1213 for this free pamphlet.

Health Care Law 1993, Bennett J. Yankowitz and Richard A. Feinstein, Practicing Law Institute, New York, NY.