Fall, 2005
Clinical Professor: Louise G. Trubek
Email: lgtrubek@wisc.edu
Wednesday: 1:20-3:20
3 credits
This course provides an opportunity to learn health law in the context of analyzing and proposing advocacy approaches to contemporary social and legal problems. The format places the students in the midst of health issues that are confronting lawyers representing consumers, patients, employees, physicians, and government agencies.
"Case problems" will be an integral part of the course. A case problem is a situation-oriented problem solving exercise. Each student will be expected to choose a case problem and present an approach to solving the problem to the class. Each case problem is based upon the materials assigned for the course, and solutions will vary with the attitudes and interests of the student. Responses to the case problems are to be posted on the class list serve by that week's presenters by 5:00 on the Monday before the Wednesday class. I will discuss via email the organization of the class presentations with the week's presenters subsequent to receiving the responses to the case problems.
A twenty-page research paper is also an integral aspect of this course. Students will be expected to explore a relevant topic area related to the class. Students are encouraged to choose a topic that reflects their interests and career aspirations.
All students are expected to actively participate in class discussions, present a case problem and write a research paper. Some students are also enrolled in a 3 clinical credit practice externship.
The textbook for this course is Furrow et al The Law of Health Care Organization and Finance (hereinafter the textbook is referred to as Furrow). It can be purchased in the law school bookstore. There is also a packet of supplemental course materials, which will also be available at the bookstore.
Schedule
Introduction and Overview
September 7, 2005
- Selection of lead presenters for case problems
Unit 1- Government Programs
September 14, 2005
Unit 2- Private Employer-Based Programs
September 21, 2005
Handout Research Paper Information
Unit 3- The Uninsured
Sept.28 2005
Unit 4- Non-Profit/For Profit
October 5, 2005
- Research paper paragraph due
Unit 5- Managed Care
October 12, 2005
Unit 6- Litigation and Alternative Dispute Resolution
October 19 2005
Unit 7- Alternative Approaches to Achieving Quality
October 26 2005
Unit 8- Fraud and Abuse
November 2, 2005
- Research Outline due
Unit 9- Non-financial Barriers to Care-Race, Gender, Culture, Professional, Geographic
November 9 2005
Unit 10- Technology in Health Care
November 16, 2005
Unit 11- International Perspectives on Health Care
November 30, 2004
- Student Paper Presentations
December 7, 2004
- Research paper due
Readings and Case Problems
Introduction
Objective: Describe details of the course, overview of the Units and students' roles. Provide a short overview of aspects of advocacy in the health care system today including the roles of physicians, other health care professionals, business, government, and the consumer/patient. Understanding of some of the basic elements of health care in the United States: access, quality and cost.
Read:
- Furrow, Review Health Care Cost and Access: The Policy Context, p. 122 to 155
- Furrow, Review Quality and Health Care, p. 15-26.
- Villazor, Community Lawyering: An Approach to Addressing Inequalities in Access to Health Care for Poor, of Color and Immigrant Communities
- DA Friedsam, Cost-Sharing and "Consumer Driven Purchasing" Part I & II.
- National Spending for personal health care chart
- 2005 Federal Poverty Levels chart
Unit 1- Government Programs
Objective: Understand the basic structure of government provided health insurance programs in the United States.
Read:
- Furrow, Public Health Programs: Medicare and Medicaid, 359-436
- Lawmakers Express Anger Over Leavitt Medicaid Commission, The Commonwealth Fund
- Spotlight Shifts to Governors in Debate Over Remolding Medicaid, The Commonwealth Fund
- Wisconsin Medicaid Programs
- Medicare Website overview of programs
Case: You are an advisor to the International Health Care Panel which is seeking to create a new health care system in a developing country that has a weak government run and administered health care system. The Panel has asked you to prepare a memo in which you choose and defend an American government program that you believe provides the best access and quality to its population at a reasonable cost to serve as a model for this developing country. You may choose to propose a program that would provide coverage for all the residents or certain subsets, such as old people or children. Justify your selection based on the four basic questions starting on page 361 of the text. Remember that the program must have a substantial government role.
Unit 2- Private Employer-Based Programs
Objective: Understand the structures through which employers provide health insurance to their employees.
Read:
- Furrow, ERISA Preemption of State Insurance Regulation, and Furrow, COBRA and HIPAA Portability, p 272-356.
- In Loco Parentis: The Purchaser Role in Managed Care, Begthold, Koebler & Singer
- LeapFrog Fact Sheet
- Can an Employer-Based Health Insurance System be Just, Nancy S. Jecker
- Know Your Cobra Rights
- Big Companies Fill BadgerCare Rolls, Stacey Forster, Milwaukee Journal Sentinel
- The Hidden Price Tag for Health Care, Daniel Akst, New York Times
- A Shared Responsibility: U.S. Employers and the Provision of Health Insurance to Employees, From The Commonwealth Fund
Case: Wal-Mart, in Wisconsin, offers health insurance for employees and their families who have worked more than two years. They advise newly hired employees, since their incomes are low, that they may be eligible for BadgerCare.
One student plays the role of the Wal-Mart manager. She defends the Wal-Mart policy including the ample set of benefits offered to employees employed for more than two years, including family coverage with low deductibles and no co-pays. The second student represents a state legislator. She is concerned with the rising costs of the Medicaid program and the large state deficit. She advances an alternative approach that will reduce the states fiscal responsibility for BadgerCare, but will provide coverage for the low income workers.
Unit 3- The Uninsured
Objective: Understand the sources of, and the potential solutions for, the large number of uninsured individuals in the United States.
Read:
- Furrow, Access to Health Care, p.156-178.
- Furrow, Regulation of Health Insurance Under State Law p.236-242.
- Hospitals Can Provide Discounts to Uninsured and Needy Patients, Bush Administration Says, New York Times, Feb. 20, 2004
- Summary of small business plan: Pacific Health Advantage (PAC Advantage)
- A neighborhood clinic helps fill the gap for Latinos without health care, Lynette Clemetson
- Insured But Not Protected, The Commonwealth Fund
- Marmor, Paths to Universal Health Insurance: Progressive Lessons From the Past for the Future
- Medical Homes DC,
- http://www.dcpca.org/?template=medical_homes.html&group=policy_programs
- Health Savings Accounts: Increasing Health Care Access in America?, J.M. Razor
Case: Two students debate how to achieve universal coverage for all people residing in the United States. The two approaches on the political agenda are one, the single payer approach, which can be modeled on the Canadian, U.K. or German systems. There is a large body of literature the student can access on how and why this approach is the best. The second student will advocate for an incremental approach that could include expanding private coverage through tax subsidies, expanding public programs, and pooling of employers.
In presenting your arguments consider the following: (1) costs; (2) consumer choice; (3) professionalism of the health care providers; (4) cultural, ethnic, and geographic variation; and (5) quality of the health care provider. Lastly, your proposals should discuss individual responsibility for your own health care and public health.
Unit 4- Non-profit/For-Profit
Objective: Understand the strengths and weakness of non-profit versus for-profit provision of health care.
Read:
- Furrow, For-Profit and Not-for-Profit Corporations 548-573.
- Who Profits from Nonprofits? Regina Herzlinger and William Krasker
- The Failure of Community Benefit, John D. Colombo (optional).
- Grassley Asks Non-Profit Hospitals to Account for Activities Related to Their Tax-Exempt Status, The Commonwealth Fund
- 3 State Hospitals Sued Over Rates for Uninsured Patients, Derrick Nunnally, Milwaukee Journal Sentinel
- Are We Getting Our Money's Worth? Charity Care, Community Benefits, and Tax Exemption at Nonprofit Hospitals, Jack Hanson (optional)
Case:
A class action against the three major hospital groups in Milwaukee was filed on June 15, 2005. The case challenges the nonprofit status of the hospitals due to their failure to provide the community benefit required for the tax advantage.
Two students are members of the Wisconsin Hospital Association's Community Benefit Task Force. They are developing a plan that will demonstrate that the hospitals are providing substantial benefit to the communities and that this benefit can be measured. In developing this plan you will also revise the current method for calculating the amount of uninsured care which is currently measured through a contract between the hospital association and the Department of Health and Family Services. Complete a four page report with recommendations on a proposal to maintain nonprofit status for the hospitals while demonstrating community benefit.
Unit 5- Managed Care
Objective: Understand the reasons behind the rise, and current decline, of managed care in the United States. Understand the basic cost-saving structures of managed care plans.
Read:
- Furrow, Private Health Insurance and Managed Care, p.242-269,194-234
- WI Statute and Admin. Rules for Managed Care, Ch. 609 and Ch. INS 9
- Death of Managed Care: A Regulatory Autopsy, Mark A. Hall
Case: You are the insurance commissioner for the state of Wisconsin. You are aware that many commentators think that Managed Care is over. You administer Ch. 609 and its accompanying administrative rules. You ask two members of your staff to write a memo on changes to this code to reflect patient protections working to improve health care. Examine carefully the measures that are listed in the current rules and statute and evaluate all available evidence of the effectiveness. You may choose two to four of the protections that are currently in effect.
Unit 6- Litigation and Alternative Dispute Resolution
Objective: Understand the variety of ways an attorney can approach conflict within the health care system.
Read:
- Furrow:
- EMTALA re-read, p. 166-179
- ERISA preemption of state tort litigation, p.298-321
- Professional Discipline, p.50-71
- Catherine Struve, Improving the Medical Malpractice Litigation Process.
- Ferdon v. Wisconsin Patients Compensation Fund, 2005 WL 1639450
- Med-Mal Ruling Has Doctors Reeling, John Gibeaut, ABA Journal Report
- Wis. Stat. 632.835 and Rule INS 18
- Fact Sheet on the Independent Review Process in Wisconsin
- Independent Review Organizations, Office of Commissioner of Insurance
- Inside the Black Box of Managed Care Decisions, Institute for Civil Justice and Health
- Aetna Health Inc. v. Davila, 124 S. Ct. 2488
Case:
You are a Wisconsin representative. You received a copy of the recently decided Wisconsin case Ferdon v. Wisconsin Patients Compensation Fund. You decide that you want to introduce legislation that will meet Constitutional requirements of the decision, adequately compensate injured patients, and avoid a medical malpractice insurance crisis. You ask the following constituents for their perspectives on how you should vote: a consumer advocate, a physician, a business leader active in the health cost containment movement, and a lawyer from the plaintiffs' bar for their suggestions for the proposed legislation. Summarize their opinions and present your proposed legislation.
Unit 7- Alternative Approaches to Achieving Quality
Objective: Understand the variety of methods used to ensure, and improve, quality in health care.
Read:
- Furrow, Solving Quality Problems of Health Care Services, 15-26.
- Furrow, Private Accreditation of Health Care Facilities, p.88-117 and Quality Controls 50-85
- Explore the NCQA website www.ncqa.org, National Quality Forum website http://www.qualityforum.org/, and Wisconsin Collaborative for Healthcare Quality www.wiqualitycollaborative.org
- Hospital Performance Reports: Impact on Quality, Market Share, and Reputation, Hibbard, Stockard & Tusler
- New Health Savings Accounts Promote Consumer Driven Health Care, Kozak, CBA Record
- Re-read Medicare Pay For Performance Initiatives from Unit 1
- Panel Seeks Better Disciplining of Doctors, Robert Pear, New York Times
- Hospitals are Improving, but Some Still Far Better, Linda A. Johnson,WI State Journal
Case: You are the Secretary of the Department of Regulation and Licensing in Wisconsin. You have been criticized by a public interest law group for failing to improve health care quality in the state through your licensing boards. You are aware that there are new methods that are believed to improve quality such as publishing quality outcomes of physicians, linking payment to outcomes, and stricter enforcement of the licensing and disciplinary rules. You are also aware of programs for early detection and discussion about errors in care. You whish to respond to this critique by changing the procedures and programs of your health care disciplinary boards. You are aware of the activities of other state and national public and private agencies.
What quality initiatives might you consider to reach this goal? Which do you think would result in the most change in the short run? Which do you think would result in the most change overall?
Unit 8-Fraud and Abuse
Objective: To understand health fraud and abuse from the perspectives of the prosecutors and the health care institutions and professionals.
Read: Furrow, Ch. 11. Fraud and Abuse, p. 603-672
Guest Speakers: Bill Hanrahan; Director of the Medicare Fraud and Abuse Unit for the State of Wisconsin and Mike Weiden; Attorney, Quarles and Brady.
Unit 9- Non-financial Barriers to Care-Race, Gender, Culture, Professional, Geographic
Objective: Understand how, and why, non-financial barriers serve to keep individuals from obtaining health care and how attorneys can work to reduce the impact of these barriers on health care access.
Read:
- Furrow, The Americans With Disabilities Act and Title VI, p.179-192
- DHFS Report on Racial Disparities: Introduction and Key Findings; Strategies to Eliminate Health Disparities
- Race, Ethnicity and Quality of Care: Inequalities and Incentives: Sidney Watson
- Perceptions of How Race & Ethnic Background Affect Medical Care: KFF
- Unequal Treatment, Institute of Medicine: 1-28
- Visit www.healthdisparities.net Read the "About Us" section of the web site to learn about the organization, its history, how it works and its collaborative efforts. Pay particular attention to the Diabetes Collaborative.
Case: You are a health care advocate in a racially and ethnically diverse area. There has been anecdotal evidence from some of your clients that area physicians, who are mostly middle-class Caucasian men, have not been prescribing a certain treatment to your clients with diabetes for fear that your clients will not follow the treatment protocol. You suspect this fear and consequent disparate treatment is racially-based, but you do not know for sure. What do you do?
Unit 10- Technology in Health Care
Objective: Understand how the positive role of technology can help health care to advance while maintaining the privacy of patients and patient records.
Read:
- Office of the National Coordinator for Health Information Technology-Questions and Answer Sheet
- Achievable Steps Toward Building a National Health Information Infrastructure in the United States, William Stead et al., 12 JAMIA 113.
- Johnson Plans 'Simple, Streamlined' Approach to Health IT, The Commonwealth Fund
- First-Year Experiences Under the Federal Privacy Rule, Health Information
- A Wisconsin Consumer's Guide to Health Information Privacy
- An eHealth Diptych: The Impact of Privacy Regulation on Medical Error and Malpractice Litigation (Part II), Nicolas Terry
- The Organization and Financing of Regional Health Information Organizations, William S. Bernstein
Case: You are a leading public health physician in Milwaukee. You receive a grant to initiate a network to implement, at the local level, a component of the National Health Information Infrastructure program. The grant is from then Department of Health and Human Services. The grant is to develop a southeast Wisconsin regional network. Your first task is to assemble a group of stakeholders to form the non-profit to implement the network. You call your lawyer who provides you legal, regulatory and political advice. List and discuss five questions that you would pose to the lawyer.
Unit 11- International Perspectives on Health Care
Objective: Understanding the interrelationship between domestic law and policy and international and transnational law and advocacy.
Read:
- Furrow, State Pharmaceutical Benefit Programs, p.432-436.
- International Law: Norms, Actors, Process, p. 981 - 987 (COPY FROM BOOK)
- Treatment Action Campaign: An Overview
- Are US Doctors Ready for Global AIDS Fight?, David Shaywitz & Dennis Ausiello
- Decentralizing the Health Sector, Partners for Health Reform
- Illinois I-Save Rx
- Canada Drug Export Limit Proposed, Beth Duff-Brown, Wisconsin State Journal
Case: You are a public interest lawyer working for an elderly advocacy non-profit. Your group is very active in developing programs and policies to enable seniors in your area to purchase prescription drugs. You attend a seminar on transnational perspectives on pharmaceuticals where the purchase of drugs from other countries is discussed. This seminar also discusses the efforts in South Africa to promote the low cost distribution to alleviate AIDS. Propose a strategy to reduce the amount of money spent on purchasing drugs. Write the memo.