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Recent Developments in Health Law
Published online by Cambridge University Press: 01 January 2021
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- Copyright © American Society of Law, Medicine and Ethics 1996
References
References
The Health Insurance Portability and Accountability Act of 1996 (HIPA), Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of the U.S.C. and I.R.C.) (1996).Google Scholar
HIPA §§ 101(a), 102(a).Google Scholar
“A group health plan, or a health insurance issuer … may … impose a preexisting condition exclusion only if – (1) such exclusion relates to a condition (whether physical or mental), regardless of the cause of the condition, for which medical advice, diagnosis, care, or treatment was recommended or received within the 6-month period ending on the enrollment date.” HIPA § 101(a), 29 U.S.C.A. § 1181(a) (West Supp. 1996). “The term ‘preexisting condition exclusion’ means, with respect to coverage, a limitation or exclusion of benefits relating to a condition based on the fact that the condition was present before the date of enrollment for such coverage, whether or not any medical advice, diagnosis, care, or treatment was recommended or received before such date.” HIPA § 101(a), 29 U.S.C.A. § 1181(b)(1)(A).Google Scholar
HIPA § 101(a), 29 U.S.C.A. § 1181(a)(2).Google Scholar
HIPA § 101(a), 29 U.S.C.A. § 1181(a)(3).Google Scholar
HIPA § 101(a), 29 U.S.C.A. § 1181(d).Google Scholar
Adverse selection is the inability of creditors and insurers to know or assess properly the risk they assume when entering into relationships with debtors or policy holders due to withheld information.Google Scholar
HIPA § 101(a), 29 U.S.C.A. § 1182(c)(2)(A).Google Scholar
HIPA § 101(a), 29 U.S.C.A. § 1182(a).Google Scholar
Id.; and HIPA § 101(a), 29 U.S.C.A. § 1183.Google Scholar
HIPA § 102(a), 42 U.S.C.A. §§ 300gg-11(a)(1)(A), 300gg-91(e)(4).Google Scholar
HIPA § 111, 42 U.S.C.A. § 300gg-41.Google Scholar
HIPA § 111, 42 U.S.C.A. § 300gg-41(b).Google Scholar
“Implementation of Reform Act Hinges on State, Federal Agency Coordination,” Health Care Daily (BNA), at D-4 (Aug. 16, 1996).Google Scholar
See “President Signs Bill to Extend Maternity, Mental Health Coverage, Health Care Daily,” Health Care Daily (BNA), at D-2 (Sept. 27, 1996).Google Scholar
HIPA § 200; and HIPA § 201(a), 42 U.S.C.A. § 1320a-7c.Google Scholar
HIPA § 201(a), 42 U.S.C.A. § 1320a-7c.Google Scholar
HIPA § 201(b), 42 U.S.C.A. §§ 1395i(k)(1), (3)(B)-(C).Google Scholar
See Nahra, K.J., “The Anti-Fraud Elements of the Kennedy-Kassebaum Legislation,” Mealey's Litigation Report: Insurance Fraud, 3, no. 15 (1996): 19.Google Scholar
HIPA § 202(a), 42 U.S.C.A. § 1395 ddd(a).Google Scholar
HIPA § 203(b)(2), 42 U.S.C.A. § 1395b-5(b)(2).Google Scholar
See “Insurance Law Should Increase Use of the Voluntary Disclosure Program,” Health Care Daily (BNA), at D-3 (Oct. 18, 1996).Google Scholar
See HIPA § 215(a)(1), 42 U.S.C.A. § 1395mm(i)(1); HIPA § 211, 42 U.S.C.A. § 1320a-7(a); and HIPA § 212, 42 U.S.C.A. § 1320a-7(c)(3).Google Scholar
HIPA § 213, 42 U.S.C.A. § 1320a-7(b)(15).Google Scholar
HIPA § 211(a)(1), 42 U.S.C.A. § 1320a-7(a)(3).Google Scholar
HIPA §§ 241-46, 18 U.S.C.A. §§ 24, 1347, 669, 1035, 1518.Google Scholar
See “Provisions in HR 3103 to Help Government Fight Federal, Private Fraud,” Health Care Daily (BNA), at D-6 (Aug. 7, 1996).Google Scholar
HIPA § 205, 42 U.S.C.A. § 1320a-7d(a).Google Scholar
HIPA § 205, 42 U.S.C.A. § 1320a-7d(b).Google Scholar
See “Clinton Proposes Repeal of Three Fraud Provisions Recently Enacted,” Health Care Daily (BNA), at D-6 (Aug. 29, 1996).Google Scholar
HIPA § 221(a), 42 U.S.C.A. §§ 1320a-7e(a)-(b)(D).Google Scholar
See “Insurance Bill Would Set Policy for Electronic Health Data Exchanges,” Health Care Daily (BNA), at D-2 (Aug. 16, 1996).Google Scholar
No safeguards are currently enacted to ensure that guidelines regarding the dissemination of individually identifiable patient information are in place before DHHS approves large-scale information transmission. Telephone interview with Lauren Ewers, legislative assistant of the Minority Staff of the U.S. Senate Labor and Human Resources Committee, in Washington, D.C. (Nov. 15, 1996) (hereinafter Telephone Interview). While Title II establishes penalties for unauthorized disclosures of personal medical information, the Act gives limited immunity to health care actors who provide the information under the electronic data transmission program. The DHHS secretary has twelve months to make recommendations to Congress and to establish state guidelines on the adoption of privacy and confidentiality standards for patient information. If Congress does not enact federal privacy standards within three years, then the DHHS secretary and the attorney general must promulgate federal privacy rules no later than forty-two months after the legislation's enactment. See generally “Insurance Bill Would Set Policy for Electronic Health Data Exchanges,” Health Care Daily (BNA), at D-2 (Aug. 16, 1996).Google Scholar
See generally id.Google Scholar
In addition to the Medical Savings Account Demonstration Project and tax benefits for long-term care insurance, accelerated death benefits, and viatical settlements, Tide III enacts other important tax initiatives, including: (1) the legislation increases a self-employed individual's tax deduction for health insurance from 40 percent in 1997 to 80 percent by 2006; and (2) penalty-free IRA withdrawals are permitted for medical insurance if the individual is unemployed for at least twelve weeks and for other medical expenses to the extent that they exceed 7.5 percent of adjusted gross income. Memorandum from the Staff of the Senate Labor and Human Resources Committee and Senate Finance Committee 6 (Aug. 22, 1996) (hereinafter Memo); see also id. at 7.Google Scholar
HIPA § 301(a), I.R.C. § 220(c)(1)(A)(4) (West Supp. 1996).Google Scholar
HIPA § 301(a), I.R.C. §§ 220(c)(2), (d)(1).Google Scholar
HIPA § 301(a), I.R.C. §§ 220(a)-(b).Google Scholar
HIPA § 301(a), I.R.C. § 220.Google Scholar
HIPA § 301(a), I.R.C. §§ 220(i)(2), (j)(1)-(2).Google Scholar
HIPA § 301(a), I.R.C. § 220(j)(3).Google Scholar
HIPA § 301(a), I.R.C. § 220(j)(1).Google Scholar
HIPA § 301(a), I.R.C. § 220 note.Google Scholar
Memo, supra note 36, at 1, 6.Google Scholar
HIPA § 321(a), I.R.C. §§ 7702B(b)(1)(C)-(F).Google Scholar
HIPA § 321(a), I.R.C. § 7702B(f)(3).Google Scholar
Memo, supra note 36, at 6.Google Scholar
HIPA § 322, I.R.C. § 213(d); see also I.R.C. § 213(a).Google Scholar
See generally “Observers Believe Insurance Industry Will Blossom as a Result of Reform Law,” Health Care Daily. (BNA), at D-3 (Aug. 23, 1996).Google Scholar
See generally id.Google Scholar
See HIPA § 101(a), 29 U.S.C.A. § 1186(c)(1); see also HIPA § 102(a), 42 U.S.C.A. § 300gg-91(c)(1).Google Scholar
HIPA § 331(a), I.R.C. § 101(g)(2).Google Scholar
See “Health Reform Law Makes Viaticals More Attractive for Terminally Ill,” Health Care Daily (BNA), at D-10 (Sept. 20, 1996).Google Scholar
See id.Google Scholar
See generally id.Google Scholar
See “Observers Believe Insurance Industry Will Blossom as a Result of Reform Law,” Health Care Daily (BNA), at D-3 (Aug. 23, 1996).Google Scholar
See “Reform Law Stipulates 72 Rules from Three Agencies by April 1, 1997,” Health Care Daily (BNA), at D-2 (Sept. 13, 1996).Google Scholar
The discussion of Title V of the Act regarding revenue offset has been omitted.Google Scholar
Memo, , supra note 36, at 1.Google Scholar
Telephone Interview, supra note 34.Google Scholar
Crenshaw, A.B., “Medical Savings Accounts: A Way to Cut Health Costs?,” Washington Post, June 23, 1996, at H6.Google Scholar
See “Insurance Bill Would Set Policy for Electronic Health Data Exchanges,” Health Care Daily (BNA), at D-2 (Aug. 16, 1996).Google Scholar
See “Observers Believe Insurance Industry Will Blossom as a Result of Reform Law,” Health Care Daily (BNA), at D-3 (Aug. 23, 1996); see also “Health Reform Law Makes Viaticals More Attractive for Terminally Ill,” Health Care Daily (BNA), at D-10 (Sept. 20, 1996).Google Scholar
Telephone Interview, supra note 34.Google Scholar
See HIPA § 101(a), 29 U.S.C.A. § 1186(c)(1); HIPA § 102(a), 42 U.S.C.A. § 300gg-91(c)(1); and HIPA § 331(a), I.R.C. § 101(g)(2).Google Scholar
See “First Lady Calls for Health Insurance for Unemployed, Working Poor, Children,” Health Care Daily (BNA), at D-3 (Aug. 29, 1996); see also “Few Easy Issues Remain After Passage of Incremental Health Reform Package,” Health Care Daily (BNA), at D-2 (Aug. 9, 1996).Google Scholar
The average monthly premium for COBRA coverage in 1995 was $464.00. Because of its high cost, only 18 percent of Americans have taken advantage of COBRA coverage. See “Employer-Sponsored Coverage Drops to 73.9 Percent, AHA Survey Finds,” Health Care Daily (BNA), at D-9 (Sept. 11, 1996).Google Scholar
Employers are increasing the deductibles and out-of-pocket spending limits of their employees. The percentage of workers with annual deductibles in excess of $300.00 has nearly doubled to 14 percent over the last two years. See id.Google Scholar
Shifts to temporary and part-time work as well as increased outsourcing in many industries to minimize benefits expenses has decreased employee health care coverage. The Act does not address this phenomenon. See id.Google Scholar
See id.Google Scholar
References
Id. at 439.Google Scholar
Hanlester Network v. Shalala, 51 F.3d 1390 (9th Cir. 1995).Google Scholar
42 U.S.C. § 1320a-7b(b) (1994). See also 42 U.S.C. § 1395nn (1994) (Anti-Referral Statute (Stark II)).Google Scholar
Kadish, S.H. Schulhofer, S.J., Criminal Law and Its Processes: Cases and Materials (Boston: Little, Brown, 1989): At 217.Google Scholar
Ratzlaf v. United States, 114 S. Ct. 655, 659 (1994).Google Scholar
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114 S. Ct. 655.Google Scholar
Id. at 657.Google Scholar
The transaction structuring at issue in Ratzlaf involved breaking down a transaction that exceeded the $10,000 reporting threshold into multiple transactions that circumvented federal reporting requirements. Id.Google Scholar
Id. at 661.Google Scholar
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42 U.S.C. § 1320a-7b(b)(3) (1994) (statutory exemptions); 42 C.F.R. § 1001.952 (1995) (safe harbor provisions). The safe harbor provisions detail permissible payment practices that are exempted from criminal violation and/or Medicare program exclusion under the Anti-Kickback statute.Google Scholar
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Reducing health care fraud and abuse is a top priority for DOJ, as evidenced by Operation Restore Trust (ORT), a two-year federal pilot program combining the resources of fourteen government agencies aimed at curbing fraud and abuse and protecting the Medicare Trust Fund. The program has been successful, collecting $10 for every $1 of expenditure in its first year since its inception in 1995. “Operation Restore Trust First Year Brings $42.3 Million to Government,” Health Care Daily (BNA), at D-2 (May 14, 1996). The varying interpretations of the scienter requirements may have the deterring effect of pushing more violators to take advantage of ORT's voluntary disclosure program (VDP) as a mitigating or preventive measure. VDP allows eligible providers to disclose violations in exchange for reduced penalties in the formulation of a settlement and payment of restitution to the government. “IG Launches Multi-Prong Attack on Fraud in Nursing Homes, Home Health Agencies,” Health Care Daily (BNA), at D-4 (May 5, 1995).Google Scholar
See generally Androphy, J. Pujol, P. Finder, L.D., “Health-care Fraud,” Houston Lawyer, 33 (1995): 35–40.Google Scholar
The Health Insurance Portability and Accountability Act of 1996 (HIPA), Pub. L. No. 104-91, 110 Stat. 1936 (codified as amended in scattered sections of U.S.C.) (1996).Google Scholar