• Health Law
  • Access To The Health Care System
    • Paying for Health Care
    • Medicaid
      • Medicare
        • Medicare Parts A & B
        • Costs Not Covered by Medicare
      • Insurance Issues
    • Access to Facilities
  • Health Care Providers' Responsibilities
    • Consent to Care
    • 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 malpractice is discussed in the Personal Injury Defense Law: Professional Malpractice Chapter.

The state of Texas has some of the finest health care providers and facilities, yet Texas 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 Texas Department of Human Services, provide payments to health care providers. In most cases, medical professionals have a right to prompt payment for their services.

Medicaid

Medicaid should not be confused with Medicare. Despite their similar names, these names refer to 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 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. In Texas, Medicaid is administered by the Texas Department of Human 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 level 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 Texas, there are several ways to qualify for Medicaid. A person who qualifies for Supplemental Security Income (SSI), Aid to Families with Dependent Children (AFDC), or the Medically Needy program automatically qualifies for Medicaid also. In addition, a person who is blind or has a disability, or who is 65 years of age or older, may qualify if all SSI requirements except for the income requirement are met. Children and pregnant women who do not qualify for AFDC, recent refugees to Texas, and people who live in certain nursing home facilities often qualify for Medicaid even if they do not meet all of the criteria to obtain federal benefits such as AFDC or SSI.

To qualify, a person must have assets valued below $2000, although there is a complex formula applied that considers the applicant's unique situation. There are several assets the formula does not count. A person is allowed to reduce his or her assets with the intent of qualifying for Medicaid, as long as reductions are made in accordance with Medicaid 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 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.

Costs Not Covered by Medicare

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

• 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 Texas, additional programs help older people and people with disabilities pay for their Medicare coverage. For example, under some qualified Medicare beneficiary programs, Medicaid pays an individual's Medicare deductible and coinsurance amounts. These programs are run by the Texas Department of Human 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 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.

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 Medicaid 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, 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.

All public hospital emergency rooms are required by law to receive patients, even if they cannot afford to pay for the medical services. In Texas, non-profit hospitals also must provide health care free of charge to certain people who meet eligibility requirements. Eligibility is based on the patient's ability or inability to pay hospital and clinic charges. Hospitals are required to provide emergency as well as non-emergency and clinic services. The law also requires that hospitals inform patients of this charity care program.

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, 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 criminal assault charges or civil liability for 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 guardian or close relative may give permission for medical treatment. In an emergency, the physician or the head of a health care facility may 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 there is not enough time to inform the patient of all risks and alternatives. Generally, a physician must obtain the approval of a parent or guardian to perform a medical or surgical procedure on a minor. Most doctors know they should not treat a patient without obtaining consent, 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 these 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 the refusal, and documentation should be placed in the medical record. The right of parents to refuse medical treatment for their children is more limited.

Confidentiality

Texas law provides that health care providers must maintain the confidentiality of patients' medical records and any information patients provide to 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, or 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 an 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. Texas law allows the reporting of a diagnosis of HIV-positive status to the federal Centers for Disease Control, a local health officer, and the state Department of Health. A physician also may report a person's HIV-positive status to a person the physician reasonably believes is the subject's spouse or sexual partner, even without the consent of the person who has tested HIV-positive.

HIV Testing

Because of the discrimination many HIV-positive people face, there is concern for confidentiality and anonymity of HIV testing. While all clinics, health care providers, and hospitals in Texas 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 health care providers, health departments, and insurance companies, 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 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, the Texas Anatomical Gift Act governs 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. A person between 16 and 18 years of age may make a gift of his or her body, but the gift is effective only with parental approval if the person is younger than age 18 at death. There are several ways for a donor to record his or her wish to make a donation. The donor may provide the donation 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. If the terms of a will are not read until several days after the donor dies, it may be too late to make an effective donation. A more common form of recording one's wish to make a donation is by indicating the wish on the person's driver's license, or through use of a donor card to be carried on the person in a purse or wallet. A written donation must be signed by the donor and witnessed by at least two other people.

If a dying person has not made his or her wishes known, a family member or guardian may make a gift of all or part of the 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 donating another person's body.

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

Reporting Abuse

Under Texas law, any person having cause to believe that a child has been or may be abused has a duty to report the suspicions to the authorities. This includes certain members of society who, by virtue of their professions and positions, frequently have contact with children, such as health care professionals, child protective agency employees, and child care custodians such as teachers or camp administrators. However, all Texas residents have the duty to report child abuse.

Reporters are obligated to immediately report any abuse or neglect to a law enforcement agency and to the Texas Department of Protective and Regulatory Services. Any person who suspects that a child has been abused or neglected, and who knowingly fails to report, commits a Class B misdemeanor punishable by a fine of up to $2000 and/or confinement in jail for up to 180 days.

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.

Reporters should immediately contact a law enforcement agency or the Texas Department of Protective and Regulatory Services by telephone to report known or suspected child abuse. Within five days of making the report, the reporter also must file a written report. Although it is confidential and may not be disclosed from the report except under limited circumstances, the reporter should give his or her name. The report may be made on a form prepared by the Department. The report includes the name and address of the child and the person responsible for the child's care, as well as any other information regarding the child or family that might be helpful and relevant to the investigation.

As with child abuse, Texas law is broad in its recognition of and response to the problem of elder abuse. Elder abuse includes physical abuse, neglect, and sexual abuse. Under Texas law, any person who suspects abuse or neglect of an elderly person has a responsibility to report the suspicion. Required reporters of elder abuse include, but are not limited to, owners or employees of nursing care institutions, law enforcement officers, and health care practitioners.

A person who suspects elder abuse must report the information to the Texas Department of Human Services, Long Term Care Regulatory division. Reports of abuse may be made by telephone or in writing. The name and address of the victim and the abuser, the nature of the elderly person's condition, and any other relevant information should be included in the report.

Reporters of elder abuse are immune from civil and criminal liability if they report abuse or suspected abuse in good faith. Failure to report is a Class A misdemeanor.

A business owner or manager may be 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 increasingly are 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.

Additional information on health law is available from the following resources:

• 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).

A free pamphlet entitled Access to Health Care is available from the Office of the Attorney General, P.O. Box 12548, Austin, TX 78711-2548. The Consumer Protection Division can be reached at (512) 463-2070 or (800) 621-0508. The Elder Law and Public Health Division, (512) 936-1300 or (800) 337-3928, has information about health care fraud. The Medicaid Fraud Control Unit, (512) 463-2011 or (800) 252-8011, offers a free pamphlet called What You Can Do About Medicaid Fraud.

The Social Security Administration operates a toll-free, 24-hour telephone service to provide recorded information on Social Security and related government benefit programs. Call (800) 772- 1213 between the hours of 7:00 a.m. and 7:00 p.m. on business days to reach a service representative.

The Social Security Administration also publishes a number of booklets, forms, and pamphlets designed to explain different types of government benefits, all of which are available free of charge. They include Disability (Publication No. 05-10029), Medicare (Publication No. 05-10043), SSI Supplemental Security Income (Publication No. 05-11000), and Understanding Social Security (Publication No. 05-10024). For on-line information, visit the Social Security Administration's World Wide Web Site: http://www.ssa.gov.

The Texas Department of Health, 1100 49th Street West, Austin, TX 78756, (800) 252-8263, has a free booklet entitled A User's Guide: MEDICAID (1991).

The State Bar of Texas, P.O. Box 12487, Austin, TX 78711-2487, (512) 463-1463 or (800) 204-2222 ext. 2610, publishes a free booklet entitled AIDS and the Law: Know Your Rights (May 1992).

Texas Department of Health, 1100 49th Street West, Austin, TX 78756, (512) 458-7261, has information about hospital charity care and HIV/AIDS testing.

Contact the Long Term Care Regulatory office at the Texas Department of Human Services, P.O. Box 149030, Austin, TX 78714-9030, (800) 458-9858, to report elder abuse.

Contact the Texas Department of Protective and Regulatory Services, (800) 252-5400, to report child abuse.