Law Commons^™

The Commerciality Of Non-Profit Hospitals Requires Them To Be Taxed: Bringing The Debate To A Conclusion, Edward A. Zelinsky

Articles

It is now time to conclude our prolonged debate about the tax-exempt status of nonprofit hospitals. The contemporary nonprofit hospital is a commercial enterprise, materially indistinguishable for tax purposes from its profit-making, taxed competitor. The federal income tax and the states’ income, sales and property taxes should treat all hospitals alike, regardless of whether such hospitals are nonprofit or for-profit enterprises. In the interests of equity and efficiency, these similar institutions should be taxed similarly.

As a political matter, nonprofit hospitals will continue to defend their tax-exempt status. Like any other lucrative, vested interest, nonprofit hospitals will continue to fight …

Hospitals Suing Patients: How Hospitals Use N.C. Courts To Collect Medical Debt, Barak Richman, Sara Sternberg Greene, Sean Chen, Julie Havlak

Faculty Scholarship

From January 2017 through June 2022, North Carolina hospitals brought 5,922 lawsuits to collect medical debt against 7,517 patients and family members. These actions were brought in small claims court, state district, and state superior courts, and generated 3,449 judgments for hospitals totaling $57.3 million, or an average of $16,623 per judgment.

Hospitals took advantage of North Carolina’s allowance of 8% annual interest on judgments, including by refiling actions to sustain judgments issued ten years earlier. These interest charges and other additional fees totaled an estimated $20.3 million, or 35.4% of the judgments awarded. Some patients faced more than a …

When Desperate Patients Go To Court For Unproven Treatments - The Battle For Hospital Independence, Christopher Robertson, Margaret Houtz

Faculty Scholarship

As the Covid-19 pandemic wears on, patients have asked courts to compel hospitals to administer unproven therapies, with mixed legal results. Although talk radio hosts, politicians, and social media users have promoted various treatment approaches, they have given particular attention to ivermectin. The Food and Drug Administration (FDA) has approved ivermectin for use in humans for treating onchocerciasis (river blindness), intestinal strongyloidiasis, certain other parasitic worms, head lice, and skin conditions such as rosacea. Although this approval facilitates legal offlabel use for prophylaxis against or treatment of other conditions, both the FDA and the Centers for Disease Control and Prevention …

Setting Priorities Fairly In Response To Covid-19: Identifying Overlapping Consensus And Reasonable Disagreement, David Wasserman, Govind C. Persad, Joseph Millum

Sturm College of Law: Faculty Scholarship

Proposals for allocating scarce lifesaving resources in the face of the Covid-19 pandemic have aligned in some ways and conflicted in others. This paper attempts a kind of priority setting in addressing these conflicts. In the first part, we identify points on which we do not believe that reasonable people should differ—even if they do. These are (i) the inadequacy of traditional clinical ethics to address priority-setting in a pandemic; (ii) the relevance of saving lives; (iii) the flaws of first-come, first-served allocation; (iv) the relevance of post-episode survival; (v) the difference between age and other factors that affect life-expectancy; …

Financial Impact Of The Opioid Crisis On Local Government: Quantifying Costs For Litigation And Policymaking, Elizabeth Weeks

Scholarly Works

The opioids epidemic has had a significant impact on individuals and communities, including local governments responsible for serving and protecting those affected individuals. This is the first study of its kind to consider whether those local government costs are quantifiable, a question that has salience both for pending opioid litigation in federal and state courts and for local planning and budgeting decisions. This article first provides a detailed description of the opioid litigation landscape, including the federal multidistrict litigation (MDL) in Ohio, the Native American tribes’ actions, and various procedural and other hurdles that local government plaintiffs face in seeking …

How Liability Insurers Protect Patients And Improve Safety, Tom Baker, Charles Silver

All Faculty Scholarship

Forty years after the publication of the first systematic study of adverse medical events, there is greater access to information about adverse medical events and increasingly widespread acceptance of the view that patient safety requires more than vigilance by well-intentioned medical professionals. In this essay, we describe some of the ways that medical liability insurance organizations contributed to this transformation, and we catalog the roles that those organizations play in promoting patient safety today. Whether liability insurance in fact discourages providers from improving safety or encourages them to protect patients from avoidable harms is an empirical question that a survey …

Law Library Blog (March 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

The Burden Of A Good Idea: Examining The Impact Of Unfunded Federal Regulatory Mandates On Medicare Participating Hospitals, Rachel Juhas Suddarth

Law Faculty Publications

Health care costs are on the rise. In 1960, the United States spent $9 billion on hospital care. Since then, hospital related spending has grown exponentially. In 2015, the United States spent over $1 trillion on hospital care, with $359.9 billion of those payments coming from the federal Medicare program for the aged and disabled. Researchers have long tried to understand the exact causes of rising health care costs. While many have closely examined the costs associated with population demographics, medical innovation, prescription drug costs, overutilization of services, and fraud or abuse, there is one driving force that does not …

Master File, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen

Research Data

This Master File of the legislative history of a 2008 amendment to the Colorado Anti-Discrimination Act (CADA) was researched and compiled by Matt Simonsen, J.D. Candidate 2019, University of Colorado Law School, and submitted to law professors Craig Konnoth and Melissa Hart. The SB08-200 Master File is cited in Brief of Amici Curiae Colorado Organizations and Individuals in Support of Respondents, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, __U.S.__ (2018) (No. 16-111).

449 p.

How Much Of Health Care Antitrust Is Really Antitrust?, Spencer Weber Waller

Faculty Publications & Other Works

No abstract provided.

Send Us The Bitcoin Or Patients Will Die: Addressing The Risks Of Ransomware Attacks On Hospitals, Deborah R. Farringer

Law Faculty Scholarship

“You just have 10 days to send us the Bitcoin. After 10 days we will remove your private key and it's impossible to recover your files.” Message to Medstar employees. Within a span of just a few months in the spring of 2016, fourteen hospitals (four hospital systems) experienced ransomware attacks resulting in an inability for the hospitals to access any of their electronic medical records, including necessary patient data. Knowing that hospitals must have access to this data in order to appropriately treat and monitor patients, those responsible for the attacks requested a bitcoin payment as ransom for the …

Of Mice And Men: On The Seclusion Of Immigration Detainees And Hospital Patients, Stacey A. Tovino

Scholarly Works

With a special focus on federal provisions strictly regulating Medicare-participating hospitals' use of seclusion, this Article uses developments in health law as a lens through which the uses and abuses of seclusion in immigration detention centers might be assessed and through which the standards governing detention centers might be improved. In particular, this Article argues that the unenforceable standards governing seclusion in immigration detention, including the most recent version of ICE's Performance-Based National Detention Standards, were incorrectly modeled on correctional standards developed for use in jails and prisons with respect to convicted criminals. This Article asserts that correctional standards are …

Hospital Mergers And Economic Efficiency, Roger D. Blair, Christine Piette Durrance, D. Daniel Sokol

UF Law Faculty Publications

Consolidation via merger both from hospital-to-hospital mergers and from hospital acquisitions of physician groups is changing the competitive landscape of the provision of health care delivery in the United States. This Article undertakes a legal and economic examination of a recent Ninth Circuit case examining the hospital acquisition of a physician group. This Article explores the Saint Alphonsus Medical Center-Nampa Inc. v. St. Luke’s Health System, Ltd. (St. Luke’s) decision—proposing a type of analysis that the district court and Ninth Circuit should have undertaken and that we hope future courts undertake when analyzing mergers in the …

The Adoption Of Mandatory Gunshot Wound Reporting Legislation In Canada: A Decade Of Tension In Lawmaking At The Intersection Of Law Enforcement And Public Health, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

In 2005, Ontario adopted the Mandatory Gunshot Wounds Reporting Act. Over the following decade, seven other provinces and one territory adopted largely identical legislation. While these statutes require health facilities to report gunshot wounds to the police, they are mostly silent on what purpose this reporting is intended to achieve and how police are to use the reports to achieve it. This paper analyzes the legislative history across these nine jurisdictions to identify these features. It demonstrates that the statutes embody an unresolved tension between the purposes of public health and safety, on the one hand, and law enforcement on …

Community Emergency Medicine: Benefits And Challenges Of Screening For Elder Abuse In The Emergency Department Of A Developing Country, Muhammad Akbar Baig, Asad Mian, Erfaan Hussain, Shahan Waheed

Department of Emergency Medicine

No abstract provided.

Buyer Power And Healthcare Prices, John B. Kirkwood

Faculty Articles

One major reason why healthcare costs are much higher in America than in other countries in that our prices are exceptionally high. In this article, I address whether we ought to rely more heavily on buyer power to reduce those prices, as other nations do. I focus on two sectors where greater buyer could easily be exercised: prescription drugs covered by Medicare and hospital and physician services covered by private insurance. I conclude that the biggest buyer of all, the federal government, should be allowed to negotiate Medicare prescription drug prices. That would substantially reduce the prices of many branded …

Ftc V. Lundbeck: Is Anything In Antitrust Obvious, Like, Ever?, Chris Sagers, Richard M. Brunell

Law Faculty Articles and Essays

In FTC v. Lundbeck, the Eighth Circuit affirmed a bench verdict finding a merger to monopoly, followed by a 1400% price increase, not only legal, but effectively not even subject to antitrust. The result followed from the district court's view that peculiarities in the market for hospital-administered drugs rendered it essentially immune from price competition. That being the case, the court found that even products very plainly substitutable on any traditional "functional interchangeability" analysis are not in the same "relevant market" for purposes of rules governing horizontal mergers. We think the court's analysis was incorrect for a number of …

Racial Disparities In Accessing Health Care And Health Status, Ruqaiijah Yearby

All Faculty Scholarship

Point (Overview): Interpersonal and institutional racial biases are the principal reasons for racial disparities in accessing health care and disparities in African Americans’ health status, which can only be addressed by acknowledging and putting an end to interpersonal and institutional racial bias in the health care system that adversely affects the health status African-Americans.

Counterpoint (Overview): The irrational structure of health care, which is based on ability to pay, rather than need is the main cause of racial disparities in health, which will not be equalized until the structure of the health care system is fixed or when African Americans’ …

The Past And Future Of Deinstitutionalization Litigation, Samuel R. Bagenstos

Articles

Two conflicting stories have consumed the academic debate regarding the impact of deinstitutionalization litigation. The first, which has risen almost to the level of conventional wisdom, is that deinstitutionalization was a disaster. The second story challenges the suggestion that deinstitutionalization has uniformly been unsuccessful, as well as the causal link critics seek to draw with the growth of the homeless population. This Article, which embraces the second story, assesses the current wave of deinstitutionalization litigation. It contends that things will be different this time. The particular outcomes of the first wave of deinstitutionalization litigation, this Article contends, resulted from the …

Tax-Exempt Hospitals, Community Health Needs And Addressing Disparities, Mary Crossley

Articles

The Affordable Care Act (ACA) imposes a number of new requirements on hospitals seeking to maintain their tax-exempt status under federal law. One requirement is that hospitals must conduct a “community health needs assessment” (CHNA) at least every three years and then develop and implement a strategy to address the needs identified in the assessment. This essay explores the potential this provision may offer for identifying, understanding, and reducing health care disparities. By calling on hospitals to focus less on individuals and more on communities, the CHNA requirement may offer a valuable addition to the toolkit for combating disparities. Thinking …

The Path Between Sebastian's Hospitals: Fostering Reconciliation After A Tragedy, Jonathan R. Cohen

UF Law Faculty Publications

On October 8, 2007, Horst and Luisa Ferrero brought their healthy but short, three-year-old son Sebastian to a university hospital for a “routine” test to determine whether he lacked human growth hormone. Two days later, following a tragic string of errors, Sebastian was pronounced brain dead. Approximately two weeks later, the hospital offered a detailed public apology to the parents for Sebastian’s death. Several months after the apology, the parents began working collaboratively with the hospital to improve patient safety at the hospital and to advocate for a new children’s hospital in their community. This paper is a case study …

Rural Hospital Ownership: Medical Service Provision, Market Mix, And Spillover Effects, Jill R. Horwitz, Austin Nichols

Articles

Objective. To test whether nonprofit, for-profit, or government hospital ownership affects medical service provision in rural hospital markets, either directly or through the spillover effects of ownership mix. Data Sources/Study Setting. Data are from the American Hospital Association, U.S. Census, CMS Healthcare Cost Report Information System and Prospective Payment System Minimum Data File, and primary data collection for geographic coordinates. The sample includes all nonfederal, general medical, and surgical hospitals located outside of metropolitan statistical areas and within the continental United States from 1988 to 2005. Study Design. We estimate multivariate regression models to examine the effects of (1) hospital …

Free Rider: A Justification For Mandatory Medical Insurance Under Health Care Reform?, Douglas A. Kahn, Jeffrey H. Kahn

Articles

Section 1501 of the Patient Protection and Affordable Care Act added section 5000A to the Internal Revenue Code to require most individuals in the United States, beginning in the year 2014, to purchase an established minimum level of medical insurance. This requirement, which is enforced by a penalty imposed on those who fail to comply, is sometimes referred to as the “individual mandate.” The individual mandate is one element of a vast change to the provision of medical care that Congress implemented in 2010. The individual mandate has proved to be controversial and has been the subject of a number …

Why It's Called The Affordable Care Act, Nicholas Bagley, Jill R. Horwitz

Articles

The Patient Protection and Affordable Care Act of 2010 (“ACA”) raises numerous policy and legal issues, but none have attracted as much attention from lawyers as Section 1501. This provision, titled “Maintenance of Mini-mum Essential Coverage,” but better known as the “individual mandate,” requires most Americans to obtain health insurance for themselves and their dependents by 2014. We are dismayed that the narrow issue of the mandate and the narrower issue of free riding have garnered so much attention when our nation’s health-care system suffers from countless problems. By improving quality, controlling costs, and extending coverage to the uninsured, the …

The Unaffordable Health Care Act - A Reponse To Professors Bagley And Horwitz, Douglas A. Kahn, Jeffrey H. Kahn

Articles

The Patient Protection and Affordable Care Act of 2010 has stirred considerable controversy. In the public debate over the program, many of its proponents have defended it by focusing on what is sometimes called the “free-rider” problem. In a prior article, we contended that the free-rider problem has been greatly exaggerated and was not a significant factor in the congressional decision to adopt the Act. We maintained that the free-rider issue is a red herring advanced to trigger an emotional attraction to the Act and distract attention from the actual issues that favor and disfavor its adoption. In a recently …

The Professional Ethics Of Billing And Collections, Mark A. Hall, Carl E. Schneider

Articles

Medicine is a Profession on which physicians rely for their livelihood and patients for their lives. If physicians do not charge for services, they cannot survive. If patients cannot afford those services, they cannot survive. No wonder many physicians have long agreed that fees are “one of the most difficult problems . . . between patient and physician.” For years comprehensive insurance subdued this problem, but currently widespread underinsurance and consumer-directed health care are reviving it. Even as the ranks of the uninsured continue to increase,the latest hope for controlling medical costs requires insured patients to pay for much more …

Health Courts?, Philip G. Peters Jr.

Faculty Publications

This article undertakes the first detailed critique of the proposal from Common Good and the Harvard School of Public Health to replace medical malpractice jury trials with adjudication before specialized health courts. Professor Peters concludes that the modest benefits likely to be produced by the current health court proposal are matched by the risks of bias and overreaching that these courts would also present. Missing from the plan is the doctrinal change mostly likely to improve patient safety - hospital enterprise liability. Without enterprise liability, the health court proposal is unlikely to achieve its patient safety goals and, as a …

Everybody Is Making Love/Or Else Expecting Rain: Considering The Sexual Autonomy Rights Of Persons Institutionalized Because Of Mental Disability In Forensic Hospitals And In Asia, Michael L. Perlin

Articles & Chapters

One of the most controversial policy questions in all of institutional mental disability law is the extent to which patients in psychiatric hospitals have a right to voluntary sexual interaction. The resolution of this matter involves the resolution of difficult and sensitive questions of law, social policy, clinical judgment, politics, religion, and family structures.

As difficult as these questions are in cases involving civil hospitals, the difficulties are exacerbated when the topic is the application of the right in forensic hospitals. Such facilities typically house individuals involved in the criminal justice system (either those who may be incompetent to stand …

Everybody Is Making Love/Or Else Expecting Rain: Considering The Sexual Autonomy Rights Of Persons Institutionalized Because Of Mental Disability In Forensic Hospitals And In Asia, Michael L. Perlin

Articles & Chapters

One of the most controversial policy questions in all of institutional mental disability law is the extent to which patients in psychiatric hospitals have a right to voluntary sexual interaction. The resolution of this matter involves the resolution of difficult and sensitive questions of law, social policy, clinical judgment, politics, religion, and family structures.

As difficult as these questions are in cases involving civil hospitals, the difficulties are exacerbated when the topic is the application of the right in forensic hospitals. Such facilities typically house individuals involved in the criminal justice system (either those who may be incompetent to stand …

Tackling The “Evils” Of Interlocking Directorates In Healthcare Nonprofits, Nicole Huberfeld

Law Faculty Scholarly Articles

The nonprofit sector and matters of nonprofit governance have been in the national spotlight much of late. One area of heightened interest is directors of healthcare entities regularly serving on the board of more than one healthcare organization. Even when board membership of related entities is relatively independent, one corporation's business plan frequently is affected (or even controlled) by the business needs of a separately incorporated parent, affiliate, or other related organization. Very little case law addresses "interlocking" directorates for nonprofit board members, and the case law that does exist tends to address narrow, fact-based state law interpretive issues rather …