我国绿色保险制度的立法选择

绿色保险制度在我国尚停留在环境政策层面,相关法律法规缺失导致谊制度可操作性不强.针对当前立法空白的现状,完善国家立法和地方性配套法规,实现承保范围、赔偿限额等主要内容的突破是我国绿色保险制度的立法选择.     

Is "ten days" really ten days?--the National Labor Relations Act's strike notice requirement in the healthcare industry

Nearly thirty years ago, Congress amended the National Labor Relations Act (Act) and provided employees of healthcare institutions with the right to strike and picket. At the same time, Congress added a new Section 8(g) requiring a labor organization to provide a healthcare institution with ten days' notice before engaging in various types of concerted activity--primarily strikes and picketing--against the institution. Thus, Section 8(g) is an important statute for healthcare employers. But since the time Congress added Section 8(g), the National Labor Relations Board has taken various views on Section 8(g) and whether "ten days" is really ten days. This Note explores the purposes of Section 8(g), as well as the reach and limits of its language, noting areas in which the board may wish to reconsider its application of the statute. Ultimately, the Note provides a checklist for healthcare employers to keep in mind with respect to Section 8(g).     

HIPAA privacy: the compliance challenges ahead

This Article reviews the HIPAA Privacy Standards' impact on healthcare organizations. It discusses whether a healthcare organization is a "Covered Entity" under the regulations, what information the Privacy Standards protect, what restrictions the regulations place on the use and disclosure of protected health information, what individual rights the Privacy Standards create, and what agreements they require between healthcare organizations and their business associates. The author provides relatively extensive guidance to organizations that are embarking upon their voyage of compliance with these broadly applicable regulations, but notes that the full extent of necessary compliance remains unclear, pending DHHS issuance of the next iteration of the rulemaking in this area. The Article was finalized in January 2002, before HHS issued any modifications to the Privacy Standards.     

American Health Lawyers Association: the year in review 2002-2003

Every year, the Practice Groups of the American Health Lawyers Association assemble a Year in Review summary of the leading developments in case law, legislation, and administrative actions affecting healthcare. This Article provides a comprehensive overview of these developments. The introduction presents a "Top Ten" list of the year's most noteworthy developments. The remainder of the Article is divided into fourteen topical areas, and offers a brief overview of issues in those areas. Overall, these various developments demonstrate society's efforts to balance accountability, efficiency, and affordability in the delivery of healthcare.     

Evidence-based medicine and the law: the courts confront clinical practice guidelines

This article examines how courts are likely to apply evidence-based medicine, and particularly clinical practice guidelines (CPGs), in healthcare litigation involving quality-of-care and entitlement-to-benefits (coverage) claims. Exploring the "politics" of the current situation, it observes that, just as clinicians have been reluctant to use CPGs in practice, courts have been, and likely will continue to be, slow to apply them in deciding cases., The article analyzes extant and proposed statutory approaches to legitimizing and promoting courts' use of CPGs. It concludes by renewing the author's earlier and controversial proposal to establish a voluntary federal program for certifying guidelines and directing courts to give certified CPGs greater weight in healthcare litigation.     

DHHS wisely proposed to remove the "consent" requirement from the HIPAA privacy standards. Department of Health and Human Services

The author contends that requiring advance written consent to use and disclose health information interferes with patient care, is unnecessary in view of other rigorous privacy protections, and imposes an unwarranted burden on healthcare providers. Consequently, the author commends DHHS for taking the "practical and apolitical step" of removing this requirement.     

Bankruptcy opportunities and pitfalls: strategies for restructuring and unwinding integrated delivery systems

Many organizations in the healthcare field are facing issues regarding the "dis-integration" of previously assembled integrated delivery systems. In many situations, bankruptcy is the most effective effective means for pursuing this course of action. This article examines and explains the bankruptcy process, its applicability to an IDS, and strategies for dealing with the process.     

"No-hire" clauses in healthcare sector contracts: their use and enforceability

In today's healthcare industry, many hospitals utilize outside agencies for both business and clinical functions. This Article acknowledges the prevalence of outsourcing contract labor in the healthcare arena and focuses on the restrictive provisions included in these employment contracts, particularly "no-hire" clauses. No-hire clauses are often included in contracts between healthcare providers and professional groups that provide clinical service employees to the provider, such as a medical practice group providing physicians to a hospital or an agency providing nurses to a nursing home. These clauses usually provide that the healthcare provider may not directly hire an employee provided by the professional group, nor may it contract with another professional group that later hires the employee. The purpose of a no-hire clause is two-fold: to protect the professional group's investment of time and moneyfor recruiting, training, and establishing the employee's clinical practice, and to give the professional group leverage to retain its employees. While noncompete clauses in employment contracts have traditionally been the subject of litigation, no-hire clauses raise distinct legal issues. Case law provides conflicting views as to the enforceability of these provisions. Some courts find no-hire clauses to be per se illegal restrictions on trade, while others will permit them when they are reasonable within a specific context. The author proposes that a multifactor test be applied on a case-by-case basis to determine the reasonableness of the no-hire provision in a given employment contract and suggests drafting improvements to facilitate enforcement.     

The rarity of "unusual" [corrected] dispositions of victim bodies: staging and posing

The act of leaving a victim's body in an unusual position is a conscious criminal action by an offender to thwart an investigation, shock the finder and investigators of the crime scene, or give perverted pleasure to the killer. The unusual position concepts of posing and staging a murder victim have been documented thoroughly and have been accepted by the courts as a definable phenomenon. One staging case and one posing case are outlined and reveal characteristics of those homicides. From the Washington State Attorney General's Homicide Investigation and Tracking System's database on murder covering the years 1981-2000 (a total of 5,224 cases), the relative frequency of unusual body dispositions is revealed as a very rare occurrence. Only 1.3% of victims are left in an unusual position, with 0.3% being posed and 0.1% being staged. The characteristics of these types of murders also set them apart: compared to all other murders, in staged murders the victims and killers are, on average, older. All victims and offenders in the staged murders are white, with victims being disproportionately white in murders with any kind of unusual body disposition. Likewise, females stand out as victims when the body is posed, staged, or left in other unusual positions. Whereas posed bodies are more likely to include sexual assault, often in serial murders, there is no evidence of either in the staged cases. Lastly, when a body is left in an unusual position, binding is more likely, as well as the use of more "hands on" means of killing the victim, such as stabbing or cutting weapons, bludgeons, ligatures, or hands and feet.     

Section 525(a) of the bankruptcy code plainly does not apply to Medicare provider agreements

Section 525(a) of the Bankruptcy Code prevents government entities from discriminating against debtors based on the debtor's bankruptcy filing. This Article analyzes how this provision is applied to healthcare providers who file for bankruptcy. Some commentators have expressed concerns that because of Section 525, the federal government is unable to deny a bankrupt provider a new Medicare provider agreement due to the debtor's failure to pay debts discharged during bankruptcy. This Article, however, argues that Section 525 does not apply to a provider agreements because it is not a "license, permit, charter, franchise, or other similar grant" as defined by the statute. Therefore, the author concludes that debtor healthcare providers should not be allowed back into the Medicare program without first paying their statutorily required debts.     

The need to know versus the right to know: privacy of patient medical data in an information-based society

"Whatever, in connection with my professional practice, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret."(1) "Safeguards to privacy in individual health care information are imperative to preserve the health care delivery relationship and the integrity of the patient record."(2) As early as the fourth and fifth centuries B.C., Hippocrates contemplated the importance of medical information to the care and treatment of patients. His oath suggests that privacy of a patient's medical information creates the foundation upon which a patient reposes trust in his or her physician. While defining the earliest version of the physician-patient privilege, the oath does not envision the extent of modern day access to healthcare information. A patient's relationship with the modern healthcare delivery system often includes a team of physicians, nurses, and other clinical support personnel. This relationship extends beyond direct caregivers and may include healthcare administrators, payor organizations, and persons unfamiliar with a patient's identity, such as researchers and public health officials. Accessing a patient's medical information links these participants to the patient's healthcare delivery relationship. The Hippocratic Oath does not contemplate such broad access, nor does it contemplate the emerging privacy crisis resulting from the application of computer technology to medical record storage and retrieval. The combination of broad access, individual privacy rights, and computer technology requires a rethinking of measures designed to protect the realities of the modern medical information society.     

"An apparently irrational distinction": a suggestion for using equal protection arguments to overcome conflicts in ERISA preemption

ERISA's conflicting goals of providing national treatment of employee pension plans, while simultaneously preserving the rights of states to regulate insurance has resulted in a chaotic preemption quagmire. Unequal, unjustified, and irreconcilable treatment of benefit plans premised upon whether they are "self-funded" or "insured" results in legal distinctions that bear little semblance to the reality of today's healthcare funding mechanisms. The author provides an overview of the legal and practical problems inherent in the current ERISA preemption analysis, and proposes a novel equal protection solution.     

Error Reduction, Patient Safety and Institutional Ethics Committees

Institutional ethics committees remain largely absent from the literature on error reduction and patient safety. In this paper, the author endeavors to fill the gap. As noted in the Hastings Center's recent report, "Promoting Patient Safety," the occurrence of medical error involves complex web of multiple factors. Human misstep is certainly one such factor, but not the only one. This paper builds on the Hastings Center's report in arguing that institutional ethics committees ought to play an integral role in the transformation of a "culture of blame" to a "culture of safety" in healthcare delivery.     

The debate over specialty hospitals: how physician-hospital relationships have reached a new fault line over these "focused factories"

Within the last 20 years, the fragile symbiotic relationship between physicians and hospitals has become increasingly strained. Physicians have created new healthcare delivery systems, including a host of for-profit, physician-owned specialty hospitals. Proponents of specialty hospitals argue that they provide high quality facilities and allow for innovative treatments. Opponents, however, contend that such hospitals "cherry pick" patients who otherwise would help to subsidize general hospitals, and point to the various fraud and abuse issues raised by physician-owned specialty hospitals. This Article examines the specialty hospital phenomenon and the arguments for and against such entities. It also analyzes whether an extension of the present federal moratorium on the construction of new physician-owned specialty hospitals is in the best interests of the country's healthcare system. The author concludes that the data are unclear as the overall impact of such hospitals and that they should not be further constrained until when and if the facts are clear.     

Enrollment--provision of hospital and outpatient care to veterans--VA. Proposed rule

This document proposes to amend VA's medical regulations. The Veterans' Health Care Eligibility Reform Act of 1996 mandates that VA implement a national enrollment system to manage the delivery of healthcare services. Accordingly, the medical regulations are proposed to be amended to establish provisions consistent with this mandate. Starting October 1, 1998, most veterans must be enrolled in the VA healthcare system as a condition of receiving VA hospital and outpatient care. Veterans would be allowed to apply to be enrolled at any time. They would be eligible to be enrolled based on funding availability and their priority status. In accordance with statutory provisions, the proposed rule also states that some categories of veterans would be eligible for VA hospital and outpatient care even if not enrolled. This document further proposes to establish a "medical benefits package" setting forth, with certain exceptions, the hospital and outpatient care that would be provided to enrolled veterans and certain other veterans.     

Structural and legal implications of e-health

Web and attendant e-Commerce phenomena are irretrievably at odds with the traditional structure and hence legal regulation of health delivery. E-Health delivers healthcare information, diagnosis, treatment, care, and prescribing of drugs in a nonlinear, nonhierarchical manner that encourages patients to "enter" the system at an infinite number of points, thus defying current regulatory constructs. Similarly, e-Commerce fundamentals such as disintermediation and disaggregation result in medical information being delivered through unfamiliar channels, creating immensely difficult questions for health lawyers.     

Enrollment--provision of hospital and outpatient care to veterans. Department of Veterans Affairs. Final rule

This document amends VA's medical regulations. The Veterans' Health Care Eligibility Reform Act of 1996 mandates that VA implement a national enrollment system to manage the delivery of healthcare services. Accordingly, the medical regulations are amended to establish provisions consistent with this mandate. Starting October 1, 1998, most veterans were required to be enrolled in the VA healthcare system as a condition of receiving VA hospital and outpatient care. Veterans will be allowed to apply to be enrolled at any time. They will be eligible to be enrolled based on funding availability and their priority status. In accordance with statutory provisions, the final rule also states that some categories of veterans are eligible for VA hospital and outpatient care even if not enrolled. This document further establishes a "medical benefits package" setting forth, with certain exceptions, the hospital and outpatient care that will be provided to enrolled veterans and certain other veterans. Moreover, this document announces that VA will enroll all 7 priority categories of veterans for the period October 1, 1999 through September 30, 2000, unless it is necessary to change this determination by a subsequent rulemaking document.     

Disease management: legal strategies for the next generation of managed care

The provision of proper and cost-effective healthcare to chronically ill patients is a crucial aspect of succeeding at managing care. An increasing number of managed care organizations are relying upon specialized outside providers to manage patients with such diseases. In such circumstances, this type of care is "carved out" and given to a specialized disease management organization. The authors discuss the strategies behind such arrangements, provide case studies of many of the specialized organizations providing such disease management, and analyze the legal issues that are likely to arise from such contractual relationships.     

Is there an acceptable answer to rising medical malpractice premiums?

This article explores the key issues involved in the attempts at reform of the present medical malpractice system. Investigating the effects that federal tort reform legislation would have on physicians, patients, lawyers, and the medical malpractice insurers, Dr. Gunnar succinctly outlines the issues surrounding the present "crisis in healthcare" and explores the separate interests involved. The article examines the economic forces influencing the medical malpractice insurance industry, reviews previous tort reform, and predicts the future of federal tort reform legislation. Dr. Gunnar concludes by proposing alternatives for malpractice reform.     

Free movement of patients: Directive 2011/24 on the application of patients' rights in cross-border healthcare

This contribution comments on Directive 2011/24, providing a legal framework for cross border healthcare 13 years after the famous Kohll and Decker case law. The Directive contains provisions concerning the reimbursement of costs, the responsibilities of the Member States and their mutual cooperation in healthcare. Analysing the (potential) impact of the Directive 2011/24 on EU healthcare systems, patients and healthcare providers, it becomes clear that the impact of the Directives reaches far beyond patient mobility. The Directive creates patients' rights, pays attention to the quality and safety of healthcare services and creates an excessive structure of cooperation in the field of healthcare. The European Union seems ready to use its economies of scale to improve healthcare for all European patients.