?Healthcare Policy, Law, and Ethics Discussion Wk 3

Healthcare Policy, Law, and Ethics Discussion Wk 3 “Contracts and Antitrust Protocols Based on the Criminal Aspects of Health Care” Please respond to the following: *From the scenario, differentiate between the concepts of criminal law, antitrust, and health care as they apply to U.S. health law in the 21st Century. Conceptualize the primary ways in which these laws apply to U.S. health care administrators.Scenario script attached. Analyze the general transition of U.S. health laws based on criminal misconduct in health care to the creation of contract laws, as predicated within the Sherman Antitrust Act. Evaluate the efficacy of the measures that the new contracts in question afford, and rationalize whether or not these improvements have provided optimal solutions to today’s complex concerns of integrity in health care performance. ***This is a discussion, NOT a paper. Need 2 strong paragraphs and references.***
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Week 3 Scenario Script: Health Care Policy, Law, and Ethics – Criminal Aspects of Health
Care and Antitrust
Slide #
Scene/Interaction
Narration
Slide 1
Scene 1
Professor Charles enters
classroom and introduces the
topics for today’s lesson and
begins the lecture.
Prof Charles: Hello everyone….welcome back
to class. Today, we are going to discuss criminal
law, antitrust, and health care….
In an effort to provide you a review of criminal
law as it relates to the healthcare industry, I will
begin with the procedural aspects of criminal
law as well as a an overview of cases that have
occurred in health care facilities.
A crime is any social harm defined and made
punishable by law. The objectives of criminal
law are to maintain public order and safety.
Crimes are generally classified as
misdemeanors or felonies. A misdemeanor is an
offense punishable by less than one year in jail
and/or a fine ( for example, petty larceny). A
felony is a much more serious crime (for
example, rape and murder) and is generally
punishable by imprisonment.
Let’s first discuss criminal procedure which
regulates the process for addressing violations
of criminal law. Who can describe the process
of arrest and arraignment?
Casey: Prosecution usually begins with a police
arrest or a warrant for an arrest. The
arraignment is a formal reading of the
accusatory instrument, a document which
accuses the defendant of an offense and
includes the setting of bail.
Donald: I would agree, but I would add that
after the charges are read the defendant pleads
guilty or not guilty. Then the court sets bail, if
any, and the judge sets a date for the defendant
to return to court.
Prof. Charles: Absolutely. What happens after
the arraignment?
Casey: I would say there is a conference and
then the criminal trial.
Prof. Charles: Excellent Casey. What occurs in
the conference?
Donald: The conference occurs if the defendant
does not plead guilty. Plea bargaining
commences with the goal of an agreed-upon
disposition. If no disposition can be reached, the
case is adjourned, motions are made, and further
plea bargaining takes place. After several
adjournments, a case may be assigned to a trial
court.
Prof. Charles: Great job, Donald! Now let’s
take a look at the criminal trial.
Slide 2
Check Your Understanding
Which of the following best
represents the defense
attorney?
A. Defends the rights
of the prosecutor.
B. Protects the rights
of the defendant.
C. Represents the
interests of the law
Correct Feedback:
B. In protecting the rights of the
defendant, the defense attorney is
often not very popular and
usually sits in the proverbial “hot
seat.”
Incorrect Feedback:
A. Defends the rights of the
prosecutor.
C. Represents the interest of the
law.
Slide 3
Scene 2
Discussion between Prof Charles
and students.
Prof. Charles: Let’s discuss the False Claim
Act of 1986 which prohibits knowingly
presenting or causing a false claim for payment
to be presented to the government. Also,
knowingly making, using or causing to be made
or used a false record or statement to get a false
claim paid or approved by the government is in
the act. Conspiring to defraud the government
by getting a false claim allowed or paid is also
included in the False Claim Act of 1986.
As a means of reducing fraud and abuses in
federal health care programs, the Office of
Inspector General (OIG) can impose monetary
penalties as well as exclude providers from the
participation in Medicare and Medicaid.
.
The federal government requires providers to
implement an effective corporate integrity
agreement (CIA). Let’s explain the seven core
elements of an effective compliance program.
Casey: So, Professor Charles…how is this
evidence of complying with the Act?
Prof. Charles: Good question, Casey. The
Inspector General says that best evidence that a
provider is operating effectively occurs when
the provider, through its compliance program,
identifies problematic conduct, takes
appropriate steps to remedy the conduct and
prevents it from recurring, and makes a full and
timely disclosure of the misconduct to the
appropriate authorities.
Donald: Just to be clear, the seven core
elements are as follows:
1. leadership by corporate counsel or a
chief compliance officer. written
standards
2. Education and training
3. Internal lines of communication
4. Responding to potential violations
5. Corrective action procedures.
Prof. Charles: Excellent Donald… There is
also the Medicare and Medicaid Patient
Protection Act 1987, the “Anti-Kickback
Statute.”
The Act provides for criminal penalties for
certain acts impacting Medicare and Medicaid.
The statute penalizes anyone who induces,
solicits, or pays anything of value to influence
another person to use these federal programs.
The OIG targets four billing practices: claims
for services not provided, claims for
beneficiaries not homebound, claims for visits
not made, and claims for visits not authorized
by a physician.
Casey: I am still not quite clear on this idea of a
kickback
Prof. Charles: Sure….Imagine a private
laboratory who does laboratory work for a
private hospital of which it is part owner. The
independent Lab company could be convicted
of receiving money from the private hospital in
exchange for referring Medicare patients to the
hospital.
Slide 4
Check Your Understanding
Health care fraud involves an
unlawful act, generally
_______ for personal gain:
A. Deception
B. Irregularities
Correct Feedback:
A. Deception is correct. It is
intentional and healthcare
fraud continues to be a major
financial drain in the
healthcare system.
Incorrect Feedback:
B. Fraud incorporates not
only irregularities but also
illegal acts characterized by
intentional deception.
Slide 5
Check Your Understanding
Behind every act of fraud lies
a lapse in ________:
A. Intuition
B. Belief
C. Ethics
D. Memory lapse
Correct Feedback:
C. Ethical lapses often occur
when physicians make
referrals based on a financial
interest the physician has in
the provider to which the
patient has been referred.
Incorrect Feedback:
A. Incorrect. Financial self
interest is the motivating
factor in the ethical lapse.
B. Incorrect. Please try again.
The illegal act was based on
financial factors not a belief
system.
D. Incorrect. Please try again.
The physician did not forget
right from wrong but did
remember his/her illegal selfinterests
Slide 6
Scene 3
Discussion of contracts and
antitrust
Prof. Charles: Now let’s discuss corporate
contracts before we talk about restraint of trade.
Can anyone tell the class about the different
types of contracts?
Casey: I think I can. An express contract is one
in which the parties to a contract have an oral or
written agreement. An implied contract is one
that is inferred by law. It is based on the conduct
of the parties, such as a handshake or similar
conduct.
Prof. Charles: Very good, Casey!
Donald: Prof. Charles…What is a violation of a
contract?
Prof. Charles: Donald, that is a great
question…It is called a breach of contract and
occurs when there is a violation of one or more
terms of the contract. The basic elements that a
plaintiff must establish in order to be successful
in a breach of contract lawsuit include the
following:
A valid contract, the plaintiff performed as
specified in the contract, the defendant failed to
perform as specified in the contract, and the
plaintiff suffered an economic loss as a result of
the defendant’s breach of contract.
Casey: So is it safe to say a breach of contract
occurs when there is a violation of one or more
of the terms?
Prof. Charles: Yes, Casey….I think that is a
pretty good distinction.
Casey: So medical staff bylaws can be
considered a contract?
Prof. Charles: Well, that is a great lead-in to
the next topic, which is due process and medical
staff bylaws.
Slide 7
Scene 4
Discussion on medical staff
bylaws: A contract and Antitrust
Prof. Charles: The medical staff bylaws state
that they provide the rules that govern the
physicians and dentists practicing at the
hospital. Also, members of the medical staff of
the hospital must continuously meet the
qualifications, standards, and requirements set
forth in the bylaws. An appointment to the
medical staff confers only those privileges
provided by the letter of appointment and the
bylaws. A signed signature of the physician or
dentist to the hospital bylaws acknowledging
the requirement to familiarize themselves with
the bylaws.
What do you think the bylaws entitle a
suspended hospital physician?
Casey: I would say that a physician who was
subject to the hospital bylaws has a due process
right to a hearing before the medical staff and
the hospital Board of Trustees/Directors.
Prof. Charles: Exactly…It is also important to
remember that a physician whose privileges are
suspended or terminated must exhaust all
remedies provided in a facility’s bylaws, rules,
and regulations before commencing court
action.
Donald: Professor, in our discussion, you have
provided us significant information.
I would like to know how illegal restraint of
trade figures into alternative health care
delivery systems.
Prof. Charles: The emphasis on free enterprise
and a competitive marketplace has resulted in
careful scrutiny by the Federal Trade
Commission (FTC), the federal agency
responsible for monitoring the marketplace and
enforcing federal antitrust laws.
The Sherman Antitrust Act states that any entity
or trust that interferes with fair trade or
competition by forming a monopoly can be
guilty of a felony. Physicians can bring action
for denial of hospital medical staff privileges
based on the allegation that the hospital in
conspiracy with other physicians is illegally
denying competition among physicians.
Casey: So, hospital staff privileges are both
professionally and economically important to
healthcare professionals?
Prof. Charles: Hospital staff privileges must
maintain quality standards, but every effort
must be made to prevent anticompetitive
abuses.
Slide 8
Scene 5
Prof Charles: We are just about out of time.
Let’s go over what we learned in this lesson.
Summary
Picture of Casey and Donald as
they speak.
We studied one of the many branches of law
that affects healthcare providers, contracts and
restraint of trade. The purpose here was to give
you an introduction to contracts, antitrust, and
their elements and importance as they pertain to
healthcare organizations and professionals.
Before we adjourn, are there any questions?
Donald: I have no questions; I think that the
information was clearly presented, Professor.
Casey: No questions for me, thank you
Professor.
Professor Charles: Excellent. I hope you
enjoyed today’s lesson. I look forward to next
year. Until then, take care.

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