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CHAPTER 2

Government, Law, and Ethics As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor—let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children’s liberty. Let reverence for the laws,

be breathed by every American mother, to the lisping babe, that prattles on her lap—let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs—let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars.

—Abraham Lincoln

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is to afford that protection. [The] govern- ment of the United States has been emphati- cally termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested right.2

Laws govern the relationships between private individuals and organizations and between both of these parties and government. Public law is the term used to describe “The laws that cover administration, constitution, and criminal acts. It controls the actions between the citizens of the state and the state itself. It deals with the government’s operation and structure.”3 The purpose of public law is to attain what society deems to be valid public goals. One important seg- ment of public law, for example, is criminal law, which prohibits conduct deemed injurious to public order and provides for punishment of those proven to have engaged in such conduct.

In contrast, private law is concerned with the recog- nition and enforcement of the rights and duties of pri- vate individuals. Tort and contract actions are two basic types of private law. In a tort action, one party asserts that the wrongful conduct of another has caused harm, and the injured party seeks compensation for the harm suffered. A contract action involves a claim by one party that another party has breached an agreement by failing to fulfill an obligation. Either remuneration or specific performance of the obligation may be sought as a rem- edy. Without an organized, clear system of laws that reg- ulate society, anarchy would clearly arise.

Public Policy as a Principle of Law Public policy is the principle of law that holds that no one can lawfully do that which tends to be injurious to the public or against the public good. The sources of public policy “include legislation; administrative rules, regulations, or decisions; and judicial decisions. In certain instances, a professional code of ethics may contain an expression of public policy.”4

▸ SOURCES OF LAW The basic sources of law are common law, which is derived from judicial decisions; statutory law, which emanates from the federal and state legislatures; and administrative law, prescribed by administrative agen- cies. In those instances in which written laws are either silent, vague, or contradictory to other laws, the judi- cial system often is called on to resolve those disputes until such time as appropriate legislative action can be

▸ LEARNING OBJECTIVES The reader, upon completion of this chapter, will be able to:

■ Explain the development and sources of law. ■ Discuss how case law differs from statutory and

administrative law. ■ Describe what is meant by conflict of laws. ■ Describe the three branches of government. ■ Describe what is meant by separation of powers. ■ Describe the organizational structure of the Depart-

ment of Health and Human Services. ■ Describe the functions of various government

ethics committees. ■ Explain the term political malpractice.

Laws are the very bulwarks of liberty; they define every man’s rights, and defend the individual liberties of all men.

—J. G. Holland

This chapter introduces the reader to the devel- opment of law in the United States, the functioning of the legal system, and the roles of the three branches of government in creating, administering, and enforcing the law. It lays a foundation for the understanding of the legal system that is needed before one can appre- ciate or comprehend the specific laws and principles relating to health care. The reader is also introduced to the term political malpractice, as well as a variety of government ethics committees that address ethical conduct within the various branches of government.

▸ DEVELOPMENT OF LAW Scholars often define the law as a system of princi- ples and processes by which people in a society deal with disputes and problems, seeking to solve or settle them without resorting to force. Simply stated, laws are rules of conduct enforced by government, which imposes penalties when prescribed laws are violated.

U.S. Supreme Court Justice Oliver Wendell Holmes said that the law “is a magic mirror, wherein we see reflected not only our own lives but also the lives of those who went before us.”1 Chief Justice John Marshall, in delivering his opinion to the court in Marbury v. Madison, said,

The very essence of civil liberty certainly con- sists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government

20 Chapter 2 Government, Law, and Ethics

laws were administered as laws of the country. When the Romans left Britain to attend to their own domestic safety, the Picts and the Scots clashed with inhabitants of southern England. Unable to oppose the attack, these southern inhabitants appealed to the Saxons for assistance. The Saxons, who came from German lands, drove the northern invaders back inside their own borders.8 The Saxons also had to contend with Danish raiders from the 8th to the 11th centuries.

The law in England before the Norman Conquest in 1066 was dispensed primarily by tradition and local custom and mostly dealt with violent crimes. The kings during this period were concerned more with enforcing customary law than with amending it. The courts mainly consisted of open-air meetings where no records were maintained. “For the Anglo-Saxons justice was a local matter, administered chiefly in the shire courts, and was largely dependent upon local customs, preserved in the memory of those persons who declared the law in the court.”9 The Saxons oper- ated with the goal of exterminating the Britons and destroying all their monuments and establishments. Subsequently, the native Briton customs and laws fell out of favor. The Britons were forced into the moun- tains of Wales, dividing the remainder of the domin- ion into seven independent kingdoms.10

These kingdoms were, for a time, independent of one another. A variety of laws grew among the Saxons themselves, as well as among the Danes, who, follow- ing a treaty in Northumberland, were considered in some measure to be part of the nation. Toward the later part of Saxon times, the kingdom was governed by a variety of laws (Mercian Law, West-Saxon Law, and Danish Law) and local customs. All British and Roman customs that survived the times were buried within one of the three laws, which governed all of England.11

Following their conquest in 1066, the Normans had little regard for Anglo-Saxon laws. They consid- ered themselves apart from such laws.

It is obviously impossible to attempt an ade- quate picture of Anglo-Saxon life. It was a wild time. Men lived in terror of the vast forests, where it was easy to be lost and suc- cumb to starvation, of their fellow man who would plunder and slay, and above all of the Unknown, whose inscrutable ways seemed constantly to be bringing famine and disas- ter. The uncertainties of modern life pale into insignificance when regarded from the standpoint of these men. It is natural, therefore, that their law should reflect their reaction against the environment. It was

taken to clear up a particular legal issue. In the follow- ing sections, the sources of law that formed the foun- dation of our legal system are discussed.

Common Law Common law refers to the body of principles that evolve from and expand upon judicial decisions that arise during the trial of court cases. Many of the legal prin- ciples and rules applied today by courts in the United States have their origins in English common law.

Because a law could never cover every potential human event that might occur in society, the judi- cial system is doubly necessary. It not only serves as a mechanism for reviewing legal disputes that arise in the written law, but it is also an effective review mechanism for those issues in which the written law is silent or in instances of a mixture of issues involv- ing both written law and common law decisions. For example, in the Cruzan v. Director, Missouri Depart- ment of Health case, the U.S. Supreme Court based its decision on the consideration of existing statutory law and prior judicial decisions.5

Common Law in England

Law reflects to a large degree the civilization of those that live under it. Its progress and development are mirrors not merely of mate- rial prosperity but of the method of thought and of the outlook of the age.6

The common law of England is much like its language: as varied as the nations that peopled its land in dif- ferent locations and different periods. Parts of the common law are derived from the Britons, Romans, Saxons, Danes, and Normans.

To recount what innovations were made by the succession of these different nations, or estimate what proportion of the customs of each go to the composing of our body of com- mon law, would be impossible at this distance of time. As to a great part of this period, we have no monuments of antiquity to guide us in our inquiry; and the lights which gleam upon the other part afford but dim prospect. Our conjectures can only be assisted by the history of the revolutions effected by these several nations.7

The Romans governed the island as a province from the time of Claudius (AD 43) until AD 448. It was a time of peace and cultivation of the arts. Roman

SOURCES OF LAW 21

among lawyers. These could hardly have been very influential. No doubt custom and case law slowly seeped from colony to colony. Travelers and word of mouth spread the knowledge of living law. It is hard to say how much this occurred, and thus, it is hard to tell to what degree there was a common legal structure.14

Judicial review became part of the law in the decade before the federal Constitution was adopted. Courts began to assert their power to rule on the con- stitutionality of legislative acts and to void unconstitu- tional statutes.

Today, cases are tried applying common law princi- ples unless a statute governs. Although statutory law has affirmed many of the legal rules and principles initially established by the courts, new issues continue to arise, especially in private law disputes, which require decision making according to common law principles. Common law actions are initiated mainly to recover monetary damages or possession of real or personal property.

State Decisions Not Binding on Other States When a higher state court has enunciated a common law principle, the lower courts within the state where the decision was rendered must follow that principle. A decision in a case that sets forth a new legal prin- ciple establishes a precedent. Trial courts or those on equal footing are not bound by the decisions of other trial courts. Also, a principle established in one state does not set precedent for another state. Rather, the rulings in one jurisdiction may be used by the courts of other jurisdictions as guides to the legal analysis of a particular legal problem. Decisions found to be rea- sonable are followed, and decisions found to be unrea- sonable are not followed.

For example, in Lebron v. Gottlieb Memorial Hos- pital,15 the plaintiffs challenged the caps on noneco- nomic damages contained in an Illinois act. In this case, the Supreme Court of Illinois agreed with the plaintiffs that a $500,000 limit on noneconomic dam- ages was arbitrary and violated the state’s constitution.

The defendants referred the court’s attention to statutes limiting noneconomic damages in medical malpractice cases that have been adopted in other states. The defendants contended that the limits on damages contained in the act are well within the range of reasonable limits adopted by these states. The court reviewed the statutes cited by the defendants and observed that the limitations on noneconomic dam- ages adopted in other states vary widely.

For example, the California statute provides sim- ply: “In no [medical malpractice] action shall the amount of damages for noneconomic losses exceed

conservative and harsh. Violence, robbery and death formed its background.12

The principal change introduced by the Norman Conquest was that the king’s court opened for dis- putes about land tenure. Land disputes involved the Saxons who held the land before the conquest and the Normans who dispossessed them. Evidence in such disputes was often the result of oral testimony from neighboring landowners. Although no profes- sional judiciary yet existed, the king’s representatives held trials before the county courts, and a cleric often presided.

Soon, a system of national law began to develop based on custom, foreign literature, and the rule of strong kings. The first royal court was established in 1178. This court, enlisting the aid of a jury, heard the complaints of the kingdom’s subjects. Because there were few written laws, a body of principles evolved from these court decisions, which became known as common law. Judges used these court decisions to decide subsequent cases. As Parliament’s power to legislate grew, the initiative for developing new laws passed from the king to Parliament.

Common Law in the United States During the colonial period, English common law began to be applied in the colonies. In the vast new country with its abundance of natural resources, English common law could not be adopted exactly; the law was thus adapted to meet the needs of the new land. Compared to England, the New World glistened with land, timber, and minerals, so the law would have to aid the new society in mastering the land.

In an 1829 U.S. Supreme Court decision, Joseph Story wrote, “The common law of England is not to be taken in all respects to be that of America. Our ances- tors brought with them its general principles, and claimed it as their birthright but they brought with them and adopted only that portion which was appli- cable to their situation.”13

After the American Revolution, each state, with the exception of Louisiana, adopted all or part of the existing English common law and added to it as needed. Louisiana civil law, by contrast, is based to a great extent on French and Spanish laws and, espe- cially, on the Code of Napoleon. As a result, there is no national system of common law in the United States, and common law on specific subjects may differ from state to state.

Case law, derived from judicial decisions, did not easily pass from colony to colony. There were no printed reports to make transfer easy, although in the 18th century, some manuscript materials did circulate

22 Chapter 2 Government, Law, and Ethics

■ Stare decisis. The common law principle stare decisis (“let the decision stand”) provides that when a deci- sion is rendered in a lawsuit involving a particular set of facts, another lawsuit involving an identical or substantially similar situation is to be resolved in the same manner as the first lawsuit. A lawsuit is decided by applying the rules and principles of prior cases. In this manner, courts arrive at compa- rable rulings. Sometimes, slight factual differences may provide a basis for recognizing distinctions between the precedent and the current case. In some cases, even when such differences are absent, a court may conclude that a particular common law rule is no longer in accord with the needs of society and may depart from precedent. Principles of law are subject to change, whether they originate in statutory or in common law. Common law prin- ciples may be modified, overturned, abrogated, or created by new court decisions in a continuing pro- cess of growth and development to reflect changes in social attitudes, public needs, judicial prejudices, or contemporary political thinking.

First Medical Malpractice Common Law Case The first common law case in the United States in which a physician was held legally responsible for neg- ligence occurred as early as 1794. In Cross v. Guthery,20 the court heard that when Mrs. Cross complained that there was something wrong with her breast, her husband sent for Dr. Guthery. The doctor examined Mrs. Cross, diagnosed her ailment, and removed her breast. Shortly after the surgery, she bled to death. Guthery expressed his regrets to her husband and then sent him a bill for 15 pounds. Mr. Cross hired a lawyer, who persuaded a jury to dismiss Guthery’s bill and award Mr. Cross 40 pounds as compensation for the loss of his wife’s companionship. Since that time, physicians have experienced recurring periods of substantial increases in the number of malpractice cases. The first such increase occurred in the 15 years prior to the Civil War.21 Another rise in the number of malpractice cases and ever-increasing concern about them occurred at the beginning of the 20th century. By 1941, The Journal of the American Medical Association published studies showing that 1,296 malpractices had occurred between 1900 and 1940, with more than 500 between 1930 and 1940. The increase in malpractice cases was attributed to substantial malpractice awards, high patient expectations, new diagnostic procedures, and erosion of the physician–patient relationship.22

The Harvard Medical Malpractice Study, commis- sioned by the state of New York to determine the rate

two hundred fifty thousand dollars ($250,000).”16 In contrast, the Florida statute sets up a more complex scheme, in which the damages cap may be as low as $150,000 and as high as $1.5 million, depending on whether the medical negligence is attributable to a practitioner or nonpractitioner, the negligence results in a permanent vegetative state or death, the negli- gence caused a catastrophic injury to the patient, or the negligence occurred during the provision of emer- gency care.17

On what basis defendants have determined that such disparate provisions are all reasonable is not known, and it is not for the Supreme Court of Illinois to judge the reasonableness of other states’ legislation. The “everybody is doing it” mentality is hardly a valid test for the constitutionality of the statute. Although decisions from other jurisdictions can provide guid- ance, “This court’s jurisprudence of state constitu- tional law cannot be predicated on the actions of our sister states.”18

The position of a court or agency, relative to other courts and agencies, determines the place assigned to its decision in the hierarchy of deci- sional law. The decisions of the U.S. Supreme Court are highest in the hierarchy of decisional law with respect to federal legal questions. Because of the parties or the legal question(s) involved, most legal controversies do not fall within the scope of the Supreme Court’s decision-making responsibil- ities. On questions of purely state concern—such as the interpretation of a state statute that raises no issues under the U.S. Constitution or federal law— the highest court in the state has the final word on interpretation of the law.

Common Law Principles The following are explanations of some of the more important common law principles:

■ Precedent. A precedent is a judicial decision that may be used as a standard in subsequent similar cases. A precedent is set when a court decision is rendered that serves as a rule for future guidance when deciding similar cases.

■ Res judicata. In common law, the term res judicata—which means “the thing is decided”— refers to that which has been previously acted on or decided by the courts. According to Black’s Law Dictionary, it is a rule where “a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the par- ties and their privies, and, as to them, constitutes an absolute bar to subsequent action involving the same claim, demand, or cause of action.”19

SOURCES OF LAW 23

vague symptoms that can often mimic more common and treatable ailments. The complexity associated with diagnosing rare autoimmune diseases, such as sclero- derma and lupus, often results in a delayed diagnosis. In 2012, misdiagnosis accounted for 34% of malprac- tice claims. Surgery accounted for 24%, treatment 18%, obstetrics 11%, and medication related 4%, monitor- ing 3%, anesthesia 3%, and other 4% of claims made.29 Actual numbers are increasingly difficult to determine due to unpublished out-of-court settlements.

Statutory Law Statutory law is written law emanating from a legisla- tive body. Although a statute can abolish any rule of common law, it can do so only by express words. The principles and rules of statutory law are set in hier- archical order. The Constitution of the United States adopted at the Constitutional Convention in Philadel- phia in 1787 is first in the hierarchy of enacted law. Article VI of the Constitution declares:

This Constitution, and the Laws of the United States which shall be made in Pursu- ance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Consti- tution or Laws of any State to the Contrary notwithstanding.30

The clear import of these words is that the U.S. Constitution, federal law, and federal treaties take precedence over the constitutions and laws of the states and local jurisdictions. Statutory law may be amended, repealed, or expanded by action of the leg- islature, as was the case with the Bill of Rights, which details the first 10 amendments to the U.S. Constitu- tion, and other amendments to the Constitution, such as the 14th Amendment, which provides that a state cannot act to deny equal protection of the laws to any person. If a state or a political subdivision of a state, whether through its executive, judicial, or legislative branch, acts in such a way as to deny unfairly to any person the rights accorded to another, the amendment has been violated.

Fourteenth Amendment to the U.S. Constitution

Section 1. All persons born or naturalized in the United States, and subject to the jurisdic- tion thereof, are citizens of the United States

of medical injury in New York hospitals, revealed that 3.7% of patients entering New York hospitals in 1984 were injured by the care provided. One tenth of those who were treated negligently filed malpractice suits.23 The research group conducting the study suggested that “only one claim makes its way into the tort system for every eight cases of injury caused by medical neg- ligence.”24 The study, which cost $3.1 million and ran 1,200 pages, was funded by the state and a grant from the Robert Wood Johnson Foundation. It involved 4 years of research and included the review of more than 30,000 medical records.25

The number of malpractice suits is staggering. Critics say that the system fails by making too lit- tle information known.26 A report by the Physician Insurers Association of America, which represents 50 malpractice insurance companies covering 50% of pri- vate physicians in the United States, claims that breast cancer accounts for more medical malpractice claims than any other medical condition. Delayed diagnosis is common among both younger and older women. The report focuses on 487 lawsuits in which damages were awarded for delayed diagnosis. The most com- mon reasons for delay were misdiagnosis, failure to follow up, and false-negative mammograms. The next most common medical diagnoses involving malprac- tice suits were infant brain damage, pregnancy, and heart attacks.27 Not much has changed since this study was conducted. Misdiagnosis and failure to follow up remain high on the list of common malpractice claims. The long list of news articles on misdiagnoses contin- ues to flow as physicians often rely on technology to make their diagnoses, as Ms. Sandra B. Goodman well describes in the news feature below.

Failure to diagnose a patient’s disease is some- times due to the difficulty associated with evaluating

Doctors at a Northern California hospital, concerned that a 40-year-old woman with sky-high blood pres- sure and confusion might have a blood clot, ordered a CT scan of her lungs. To their surprise, the scan reveals not a clot but large cancers in both breasts that have spread throughout her body. Had they done a simple physical exam of the woman’s chest, they would have been able to feel the tumors. So would the doctors who saw her during several hospitalizations over the previous two years, when the cancer might have been more easily treated.28

AS HANDS-ON DOCTORING FADES AWAY, PATIENTS LOSE

24 Chapter 2 Government, Law, and Ethics

Rules and Regulations Administrative agencies have legislative, judicial, and executive functions. They have the authority to for- mulate rules and regulations considered necessary to carry out the intent of legislative enactments. Regula- tory agencies have the ability to legislate, adjudicate, and enforce their own regulations in many cases.

Rules and regulations established by an adminis- trative agency must be administered within the scope of authority delegated to it by Congress. Although an agency must comply with its own regulations, agency regulations must be consistent with the statute under which they are promulgated. An agency’s interpreta- tion of a statute cannot supersede the language cho- sen by Congress. An executive regulation that defines some general statutory term in a too restrictive or unrealistic manner is invalid. Agency regulations and administrative decisions are subject to judicial review when questions arise as to whether an agency has overstepped its bounds in its interpretation of the law.

§702: Right to Review A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the mean- ing of a relevant statute, is entitled to judicial review thereof. . . .33

§706: Scope of Review To the extent necessary . . . the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provi- sions, and determine the meaning or appli- cability of the terms of an agency action. The reviewing court shall

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be

(A) arbitrary, capricious, an abuse of dis- cretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the

and of the state wherein they reside. No state shall make or enforce any law, which shall abridge the privileges or immunities of citi- zens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal pro- tection of the laws.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the pro- visions of this article.

States and local jurisdictions can only enact and enforce laws that do not conflict with federal law. Statutory laws may be declared void by a court; for example, a statute may be found unconstitutional because it does not comply with a state or federal constitution, because it is vague or ambiguous, or, in the case of a state law, because it is in conflict with a federal law.

In many cases involving statutory law, the court is called on to interpret how a statute applies to a given set of facts. For example, a statute may state merely that no person may discriminate against another per- son because of race, creed, color, or sex. A court may then be called on to decide whether certain actions by a person are discriminatory and therefore violate the law.

Administrative Law Administrative law is the extensive body of public law issued by either state or federal agencies to direct the enacted laws of the federal and state governments. It is the branch of law that controls the administrative operations of government. Congress and state legis- lative bodies realistically cannot oversee their many laws; therefore, they delegate implementation and administration of the law to an appropriate adminis- trative agency. Healthcare organizations, in particular, are inundated with a proliferation of administrative rules and regulations affecting every aspect of their operations.

The Administrative Procedures Act31 describes the different procedures under which federal adminis- trative agencies must operate.32 The act prescribes the procedural responsibilities and authority of admin- istrative agencies and provides for legal remedies for those wronged by agency actions. The regulatory power exercised by administrative agencies includes power to license, power of rate setting (e.g., Centers for Medicare and Medicaid Services [CMS]), and power over business practices (e.g., National Labor Relations Board [NLRB]).

SOURCES OF LAW 25

may be in conflict. The plaintiff in Dorsten v. Lapeer County General Hospital39 brought an action against a hospital and certain physicians on the medical board, alleging wrongful denial of her application for medical staff privileges. The plaintiff asserted claims under the U.S. Code for sex discrimination, violations of the Sherman Antitrust Act, and the like. The plaintiff filed a motion to compel discovery of peer review reports to support her case. The U.S. District Court held that the plaintiff was entitled to discovery of peer review reports despite a Michigan state law purporting to establish an absolute privi- lege for peer review reports conducted by hospital review boards.

▸ GOVERNMENT ORGANIZATION The three branches of the federal government, as illus- trated in FIGURE 2-1, are the legislative, executive, and judicial branches. A typical example of a state govern- ment organization is illustrated in FIGURE 2-2. A vital concept in the constitutional framework of govern- ment on both federal and state levels is the separation of powers. Essentially, this principle provides that no one branch of government is clearly dominant over the other two; however, in the exercise of its functions, each may affect and limit the activities, functions, and powers of the others.

Legislative Branch On the federal level, legislative powers are vested in the Congress of the United States, which consists of the Senate and the House of Representatives. The func- tion of the legislative branch is to enact laws, as well as amend or repeal existing legislation and to create new legislation. The legislature determines the nature and extent of the need for new laws and for changes in existing laws. Committees of both houses of Congress are responsible for preparing federal legislation. There are 16 standing committees in the Senate and 19 in the House of Representatives, all of whose member- ship are appointed by a vote of the entire body.

Legislative proposals are assigned or referred to an appropriate committee for study. The commit- tees conduct investigations and hold hearings where interested persons may present their views regard- ing proposed legislation. These proceedings provide additional information to assist committee members in their consideration of proposed bills. A bill may be reported out of a committee in its original form, favorably or unfavorably; it may be reported out with recommended amendments; or the bill might be

record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.34

Recourse to an administrative agency for resolution of a dispute is generally required prior to seeking judi- cial review. The Pennsylvania Commonwealth Court held in Fair Rest Home v. Commonwealth, Department of Health35 that the Department of Health was required to hold a hearing before it ordered revocation of a nursing home’s operating license. The Department of Health failed in its responsibility when “in a revocation proceeding it [did] not give careful consideration to its statutorily mandated responsibility to hear testimony.”36

Regulations and decisions of administrative agen- cies reviewed by the courts may be upheld, modified, overturned, or reversed and remanded for further proceedings. For example, the owner and operator of a licensed residential care facility brought an action challenging regulations, promulgated by the Arkan- sas Department of Human Services (DHS) through its Office of Long Term Care (OLTC), governing admin- istration of medicines in residential care facilities.37

The owner challenged two OLTC regulations that required the following:

1. Under no circumstances shall an operator or employee or anyone solicited by an operator or employee be permitted to administer any oral medications, injectable medications, eye drops, eardrops, or topical ointments (both prescription and nonprescription drugs).

2. In addition, any owner and/or operator of a Residential Care Facility who is a licensed nurse who administers any medication to a resident will be in violation of operating an unlicensed nursing home.38

The circuit court in this case held that the regula- tions were invalid, and the DHS appealed. The Supreme Court reversed the circuit court’s decision by holding the regulations reasonable in light of the distinctions between residential care facilities and nursing homes.

Conflict of Laws When state and federal laws conflict, resolution can be sought in the appropriate federal court. The fol- lowing case illustrates how federal and state laws

26 Chapter 2 Government, Law, and Ethics

Executive Branch The primary function of the executive branch of government on the federal and state level is to administer and enforce the law. The chief execu- tive, either the president of the United States or the governor of a state, also has a role in the creation of law through the power to approve or veto legis- lative proposals.

The U.S. Constitution provides that the presi- dent of the United States holds the executive power.

allowed to lie in the committee without action. Some bills eventually reach the full legislative body, where, after consideration and debate, they may be approved or rejected.

The U.S. Congress and all state legislatures are bicameral (consisting of two houses), except for the Nebraska legislature, which is unicameral. Both houses in a bicameral legislature must pass iden- tical versions of a legislative proposal before the legislation can be brought to the chief executive (president or governor).

FIGURE 2-1 Government of the United States.

FIGURE 2-2 Example of a state government organization.

THE CONSTITUTION

THE GOVERNMENT OF THE UNITED STATES

THE CONGRESS

SENATE HOUSE

ARCHITECT OF THE CAPITOL UNITED STATES BOTANIC GARDEN GENERAL ACCOUNTING OFFICE GOVERNMENT PRINTING OFFICE

LIBRARY OF CONGRESS CONGRESSIONAL BUDGET OFFICE

THE SUPREME COURT OF THE UNITED STATES

US COURTS OF APPEALS US DISTRICT COURTS TERRITORIAL COURTS

US COURT OF INTERNATIONAL TRADE US COURT OF FEDERAL CLAIMS

US COURT OF APPEALS FOR THE ARMED FORCES US TAX COURT

US COURT OF APPEALS FOR VETERANS CLAIMS ADMINISTRATIVE OFFICE OF THE US COURTS

FEDERAL JUDICIAL CENTER US SENTENCING COMMISSION

JUDICIAL BRANCHLEGISLATIVE BRANCH

DEPARTMENT OF THE INTERIOR

DEPARTMENT OF JUSTICE

DEPARTMENT OF LABOR

DEPARTMENT OF STATE

DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF THE TREASURY

DEPARTMENT OF VETERANS AFFAIRS

DEPARTMENT OF AGRICULTURE

DEPARTMENT OF COMMERCE

DEPARTMENT OF DEFENSE

DEPARTMENT OF EDUCATION

DEPARTMENT OF ENERGY

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

DEPARTMENT OF HOMELAND SECURITY

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT

INDEPENDENT ESTABLISHMENTS AND GOVERNMENT CORPORATIONS

AFRICAN DEVELOPMENT FOUNDATION CENTRAL INTELLIGENCE AGENCY COMMODITY FUTURES TRADING COMMISSION CONSUMER PRODUCT SAFETY COMMISSION CORPORATION FOR NATIONAL AND COMMUNITY SERVICE DEFENSE NUCLEAR FACILITIES SAFETY BOARD ENVIRONMENTAL PROTECTION AGENCY EQUAL EMPLOYMENT OPPORTUNITY COMMISSION EXPORT–IMPORT BANK OF THE UNITED STATES FARM CREDIT ADMINISTRATION FEDERAL COMMUNICATIONS COMMISSION FEDERAL DEPOSIT INSURANCE CORPORATION FEDERAL ELECTION COMMISSION FEDERAL HOUSING FINANCE BOARD

FEDERAL LABOR RELATIONS AUTHORITY FEDERAL MARITIME COMMISSION FEDERAL MEDIATION AND CONCILIATION SERVICE FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION FEDERAL RESERVE SYSTEM FEDERAL RETIREMENT THRIFT INVESTMENT BOARD FEDERAL TRADE COMMISSION GENERAL SERVICES ADMINISTRATION INTER-AMERICAN FOUNDATION MERIT SYSTEMS PROTECTION BOARD NATIONAL AERONAUTICS AND SPACE ADMINISTRATION NATIONAL ARCHIVES AND RECORDS ADMINISTRATION NATIONAL CAPITAL PLANNING COMMISSION NATIONAL CREDIT UNION ADMINISTRATION

NATIONAL FOUNDATION OF THE ARTS AND THE HUMANITIES NATIONAL LABOR RELATIONS BOARD NATIONAL MEDIATION BOARD NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK) NATIONAL SCIENCE FOUNDATION NATIONAL TRANSPORTATION SAFETY BOARD NUCLEAR REGULATORY COMMISSION OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF GOVERNMENT ETHICS OFFICE OF PERSONNEL MANAGEMENT OFFICE OF SPECIAL COUNSEL OVERSEAS PRIVATE INVESTMENT CORPORATION PEACE CORPS PENSION BENEFIT GUARANTY CORPORATION

POSTAL RATE COMMISSION RAILROAD RETIREMENT BOARD SECURITIES AND EXCHANGE COMMISSION SELECTIVE SERVICE SYSTEM SMALL BUSINESS ADMINISTRATION SOCIAL SECURITY ADMINISTRATION TENNESSEE VALLEY AUTHORITY TRADE AND DEVELOPMENT AGENCY US AGENCY FOR INTERNATIONAL DEVELOPMENT US COMMISSION ON CIVIL RIGHTS US INTERNATIONAL TRADE COMMISSION US POSTAL SERVICE

THE PRESIDENT

THE VICE PRESIDENT

EXECUTIVE OFFICE OF THE PRESIDENT

WHITE HOUSE OFFICE OFFICE OF THE VICE PRESIDENT COUNCIL OF ECONOMIC ADVISERS COUNCIL ON ENVIRONMENTAL QUALITY NATIONAL SECURITY COUNCIL OFFICE OF ADMINISTRATION

OFFICE OF MANAGEMENT AND BUDGET OFFICE OF NATIONAL DRUG CONTROL POLICY OFFICE OF POLICY DEVELOPMENT OFFICE OF SCIENCE AND TECHNOLOGY POLICY OFFICE OF THE U.S. TRADE REPRESENTATIVE

EXECUTIVE BRANCH

STATE CONSTITUTION

SENATE HOUSE ADMINISTRATIVE OFFICES

ADMINISTRATIVE DEPARTMENTS

COURTS

JUDICIAL BRANCHLEGISLATIVE BRANCH Governor

Lieutenant Governor

EXECUTIVE BRANCH

GOVERNMENT ORGANIZATION 27

the nation’s judicial business is reviewed and acted on in state courts. Each state maintains a level of trial courts that have original jurisdiction, meaning the authority of a court to first conduct a trial on a specific case, as distinguished from a court with appellate jurisdiction, where appeals from trial judgments are held. This jurisdiction may exclude cases involving claims with damages less than a specified minimum, probate matters (i.e., wills and estates), and workers’ compensation. Differ- ent states have designated different names for trial courts (e.g., superior, district, circuit, or supreme courts). Also on the trial court level are minor courts, such as city, small claims, and justice of the peace courts. States such as Massachusetts have consolidated their minor courts into a statewide court system.

Each state has at least one appellate court. Many states have an intermediate appellate court between the trial courts and the court of last resort, which is the state supreme court in most states. Where this inter- mediate court is present, there is a provision for appeal to it, with further review in all but select cases. A state’s highest appellate tribunal is seen as the final arbiter for a state’s system of jurisprudence. FIGURE 2-3 depicts a typical state court system.

The trial court of the federal system is the U.S. District Court. There are 94 district courts in the 50 states (the larger states having more than one dis- trict court) and one in the District of Columbia. The Commonwealth of Puerto Rico also has a district court with jurisdiction corresponding to that of dis- trict courts in the different states. Generally, only one judge is required to sit and decide a case, although certain cases require up to three judges. The federal district courts hear civil, criminal, admiralty, and bankruptcy cases.

The U.S. Circuit Court of Appeals is the appellate court. There are 12 regional courts in various cities and the 13th judicial court is located in Washington, DC. Their main purpose is to review cases tried in fed- eral district courts within their respective circuits, but they also possess jurisdiction to review orders of des- ignated administrative agencies and to issue original writs in appropriate cases. These intermediate appel- late courts were created to relieve the U.S. Supreme Court of deciding all cases appealed from the federal trial courts.

The Supreme Court, the nation’s highest court, is the only federal court created directly by the Consti- tution. Eight associate justices and one chief justice sit on the Supreme Court.

The court has limited original jurisdiction over the lower federal courts and the highest state courts. In a

The president serves as the administrative head of the executive branch of the federal government. The exec- utive branch includes 15 executive departments (see Figure 2-1), as well as a variety of agencies, both tem- porary and permanent.

The cabinet is composed of 15 executive depart- ment heads.40 Each department is responsible for a different area of public affairs, and each enforces the law within its area of responsibility. For example, the DHHS administers much of the federal health law enacted by Congress. Most state executive branches are also organized on a departmental basis. These departments administer and enforce state law con- cerning public affairs.

On a state level, the governor serves as the chief executive officer. The responsibilities of a state gov- ernor are provided for in the state’s constitution. The Massachusetts State Constitution, for exam- ple, describes the responsibilities of the governor as presenting an annual budget to the state leg- islature, recommending new legislation, vetoing legislation, appointing and removing department heads, appointing judicial officers, and acting as Commander-in-Chief of the state’s military forces (the Massachusetts National Guard).41

Judicial Branch As I have said in the past, when government bureaus and agencies go awry, which are adjuncts of the legislative or executive branches, the people flee to the third branch, their courts, for solace and justice.42

—Justice J. Henderson, Supreme Court of South Dakota

The function of the judicial branch of government is adjudication—resolving disputes in accordance with law. As a practical matter, most disputes or contro- versies that are covered by legal principles or rules are resolved without resort to the courts.

Alexis de Tocqueville (1805–1859), a foreign observer commenting on the primordial place of the law and the legal profession, stated:

Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.

—Alexis de Tocqueville (1805–1859)

The decision regarding which court has jurisdiction—the legal right to hear and rule on a particular case—is determined by such matters as the locality in which each party to a lawsuit resides and the issues of a lawsuit. Each state in the United States provides its own court system, which is cre- ated by the state’s constitution and statutes. Most of

28 Chapter 2 Government, Law, and Ethics

certain claims against the government. The U.S. Court of Appeals for the Federal Circuit has appellate juris- diction over certain customs and patent matters. The U.S. Customs Court reviews certain administrative decisions by customs officials. Also, there is a U.S. Tax Court and a U.S. Court of Military Appeals. The federal court system is illustrated in FIGURE 2-4.

few situations, an appeal will go directly from a fed- eral or state court to the Supreme Court, but in most cases, review must be sought through the discretion- ary writ of certiorari, an appeal petition. In addition to the aforementioned courts, special federal courts have jurisdiction over particular subject matters. The U.S. Court of Claims, for example, has jurisdiction over

FIGURE 2-3 Typical state court system.

STATE SUPREME COURTS (General Jurisdiction)

PROBATE COURT SURROGATE COURT JUVENILE COURT FAMILY COURT CRIMINAL COURTS

(Limited Jurisdiction)

DISTRICT TRIAL COURTS (General Jurisdiction)

LOCAL COURTS TRAFFIC POLICE SMALL CLAIMS

JUSTICE OF THE PEACE

APPEALS COURTS (General Jurisdiction)

FIGURE 2-4 U.S. federal court system.

UNITED STATES SUPREME COURT (Court of Final Resort)

US COURT OF APPEALS FOR THE FEDERAL CIRCUIT

US CUSTOMS COURT

US DISTRICT COURTS (Federal Trial Courts)

U.S. COURT OF CLAIMS

US COURTS OF APPEAL US TAX COURTS

GOVERNMENT ORGANIZATION 29

Security benefits (e.g., retirement, survivors, disabil- ity), Supplemental Security Income (which ensures a minimum monthly income to needy persons and is administered by local Social Security offices), Medi- care, Medicaid, and programs under the Older Amer- icans Act (e.g., in-home services, such as home health and home-delivered meals, and community services such as adult day care, transportation, and ombuds- man services in long-term care facilities).

Administration on Aging The Administration on Aging (AOA) is the principal agency designated to carry out the provisions of the Older Americans Act of 1965, which, as amended, focuses on improving the lives of senior citizens in areas of income, housing, health, employment, retire- ment, and community services. The AOA develops policies, plans, and programs designed to promote the welfare of the aging population. It promotes their needs by planning programs and developing policy, procedural direction, and technical assistance to states and Native American tribal governments.

Centers for Medicare and Medicaid Services The Centers for Medicare and Medicaid Services (CMS), formerly the Health Care Financing Administration, was created to combine under one administration the oversight of the Medicare program, the federal por- tion of the Medicaid program, the State Children’s Health Insurance Program, and related quality assur- ance activities.

Medicare is a federally sponsored health insur- ance program for persons 65 years of age, as well as certain diseases and disabilities of all disabled persons. It has four complementary parts A, B, C, and D:

Medicare Part A Medicare Part A helps pay for the costs asso- ciated with hospital care. Part A can also help cover the cost of hospice, home health care and skilled nursing facilities. Part A pays about 80 percent of Medicare-approved, inpa- tient costs for the first 60 days of hospitaliza- tion. Patients who have longer hospital stays are required to pay a larger share of the costs, thus emphasizing the importance of having supplemental insurance.

Medicare Part B Medicare Part B helps pay for medical costs associated with physician visits, some home health care, medical equipment, outpatient

Separation of Powers The concept of separation of powers, a system of checks and balances, is illustrated in the relationships among the three branches of government with regard to leg- islation. On the federal level, when a bill creating a statute is enacted by Congress and signed by the pres- ident, it becomes law. If the president vetoes a bill, it takes a two-thirds vote of each house of Congress to override the veto. The president also can prevent a bill from becoming law by avoiding any action while Con- gress is in session. This procedure, known as a pocket veto, can temporarily stop a bill from becoming law and may permanently prevent it from becoming law if later sessions of Congress do not act on it favorably.

The Supreme Court may declare a bill that has become law invalid if it violates the Constitution. “It is not entirely unworthy of observation, that in declaring what shall be the Supreme law of the land, the Consti- tution itself is first mentioned; and not the laws of the United States generally, but those only made in pursu- ance to the Constitution, have that rank.”43

Even though a Supreme Court decision is final regarding a specific controversy, Congress and the presi- dent may generate new, constitutionally sound legislation to replace a law that has been declared unconstitutional. The procedures for amending the Constitution are com- plex and often time consuming, but they can serve as a way to offset or override a Supreme Court decision.

▸ DEPARTMENT OF HEALTH AND HUMAN SERVICES

The Department of Health and Human Services (DHHS) is a cabinet-level department within the executive branch of the federal government (FIGURE 2-5). The DHHS has been charged with the responsibility for developing and implementing appropriate adminis- trative regulations for carrying out national health and human services policy objectives. The Department of Health and Human Services was created on April 11, 1953 to strengthen “the public health and welfare of the American people by making affordable and qual- ity health care and childcare accessible, ensuring the safety of food products, preparing for public health emergencies, and advancing the diagnosis, treatment, and curing of life threatening illnesses.”44 It is also the main source of regulations governing the health- care industry. The secretary of the DHHS, serving as the department’s administrative head, advises the president with regard to health, welfare, and income security plans, policies, and programs. The DHHS is also responsible for many of the programs designed to meet the needs of senior citizens, including Social

30 Chapter 2 Government, Law, and Ethics

in a given year. Some of these plans cover pre- ventive dental, vision, and hearing costs.

Medicare Part D Medicare Part D helps pay for prescription drugs and is available through private health insurance companies. Called prescription drug plans, they commonly cover brand-name and generic drugs. Coverage can differ from one insurance carrier to the next. Part D is optional and available to those who are enrolled in Medicare Parts A and B and most Medicare Advantage plans. Medicaid, Title XIX of the Social Security Act

Amendments of 1965, is a government program administered by the states that provides medical

procedures, rehabilitation therapy, laboratory tests, X-rays, mental health services, ambu- lance services, and blood. Preventive care, such as flu shots, are also covered.

Medicare Part C Medicare Part C helps pay for hospital and medical costs not covered by Parts A and B. Part C private insurance plans are offered through private health insurance compa- nies that are approved by Medicare. They are referred to as Medicare Advantage Plans. They generally cover more of the costs the patient would have to pay for out of pocket with Medicare Parts A and B. Part C plans also put a limit on what you pay out of pocket

FIGURE 2-5 Organization of the Department of Health and Human Services.

The Secretary

Deputy Secretary

Chief of Staff

Executive Secretary Director, Intergovernmental

Affairs, and Secretary’s Regional Representatives

Assistant Secretary for Administration and Management

Assistant Secretary for Planning

and Evaluation

General Counsel

Assistant Secretary for Public Health

Emergency Preparedness

Director, Center for Faith-Based and

Community Initiatives

Director, Office for Civil Rights

Assistant Secretary, Administration for

Children and Families (ACF)

Assistant Secretary, Administration

on Aging (AOA)

Administrator, Agency for Toxic Substances and Disease Registry

(ATSDR)

Director, Centers for

Disease Control and Prevention

(CDC)

Administrator, Centers for

Medicare and Medicaid Services

(CMS)

Director, Agency for

Healthcare Research and Quality

(AHRQ)

Assistant Secretary for Legislation

Assistant Secretary for Public Affairs

Assistant Secretary for Budget,

Technology, and Finance

Assistant Secretary for Health

Commissioner, Food and Drug Administration

(FDA)

Administrator, Health Resources

and Services Administration

(HRSA)

Director, Program Support

Center (PSC)

Administrator, Substance Abuse and

Mental Health Services Administration

(SAMHSA)

Director, Indian Health

Service (IHS)

Director, National Institutes

of Health (NIH)

Chair, Departmental Appeals Board

Inspector General

DEPARTMENT OF HEALTH AND HUMAN SERVICES 31

to enhance health, lengthen life, and reduce illness and disability. It is responsible for con- ducting, supporting, and promoting biomed- ical research.

The goals of the agency are:

■ to foster fundamental creative discoveries, inno- vative research strategies, and their applications as a basis for ultimately protecting and improving health;

■ to develop, maintain, and renew scientific human and physical resources that will ensure the nation’s capability to prevent disease;

■ to expand the knowledge base in medical and associated sciences in order to enhance the nation’s economic well-being and ensure a continued high return on the public investment in research; and

■ to exemplify and promote the highest level of sci- entific integrity, public accountability, and social responsibility in the conduct of science.45

Centers for Disease Control and Prevention The Centers for Disease Control and Prevention (CDC) was established as an operating health agency within the Public Health Service by the Secretary of Health, Education, and Welfare on July 1, 1973. It is the lead federal agency charged with protecting the pub- lic health of the nation by providing leadership and direction in the prevention and control of diseases and other preventable conditions and responding to public health emergencies. It administers national programs for the prevention and control of commu- nicable and vector-borne diseases and other prevent- able conditions. It develops and implements programs in chronic disease prevention and control, including consultation with state and local health departments. It develops and implements programs to deal with environmental health problems, including responding to environmental, chemical, and radiation emergen- cies. The CDC also serves to help other nations as they struggle with communicable diseases.

Food and Drug Administration The Food and Drug Administration (FDA) is respon- sible “for protecting the public health by assuring the safety, effectiveness, quality, and security of human and veterinary drugs, vaccines and other biological prod- ucts, and medical devices. The FDA is also responsible for the safety and security of most of our nation’s food supply, all cosmetics, dietary supplements and prod- ucts that give off radiation.”46

services (both institutional and outpatient) to the medically needy. Federal grants, in the form of match- ing funds, are issued to those states with qualifying Medicaid programs. Medicaid is jointly sponsored and financed by the federal government and several states. Medical care for needy persons of all ages is provided under the definition of need established by each state. Each state sets its own criteria for determining eligi- bility for services under its Medicaid program.

The Health Insurance Portability and Accountability Act of 1996 The CMS is responsible for implementing various provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The adminis- trative simplification provisions of HIPAA require that the DHHS establish national standards for elec- tronic healthcare transactions and national identifi- ers for providers, health plans, and employers. It also addresses the privacy of health data.

Public Health Service The mission of the Public Health Service (PHS) is to promote the protection of the nation’s physical and mental health. The PHS accomplishes its mission by coordinating with the states in setting and implement- ing national health policy and pursuing effective inter- governmental relations; generating and upholding cooperative international health related agreements, policies, and programs; conducting medical and bio- medical research; sponsoring and administering pro- grams for the development of health resources, the prevention and control of diseases, and alcohol and drug abuse; providing resources and expertise to the states and other public and private institutions in the planning, direction, and delivery of physical and men- tal healthcare services; and enforcing laws to ensure drug safety and protection from impure and unsafe foods, cosmetics, medical devices, and radiation- producing objects. Within the PHS are smaller agen- cies responsible for carrying out the purpose of the division and DHHS; these agencies are described next.

National Institutes of Health The National Institutes of Health (NIH) is the principal federal biomedical research agency. NIH is considered to be the largest biomedical research agency in the world.

NIH’s mission is to seek fundamental knowl- edge about the nature and behavior of living systems and the application of that knowledge

32 Chapter 2 Government, Law, and Ethics

▸ GOVERNMENT ETHICS I weep for the liberty of my country when I see at this early day of its successful experiment that corruption has been imputed to many members of the House of Repre-

sentatives, and the rights of the people have been bartered for promises of office.

—Andrew Jackson

Ethics and the law are not mutually exclusive—they are intertwined. Without the two, we would become a lawless land. The words of Abraham Lincoln and Andrew Jackson, so eloquently spoken, resonate true today. Political corruption, antisocial behavior, declining civility, and rampant unethical conduct have heightened discussions over the nation’s moral decline and decaying value systems. The numerous instances of questionable political decisions, execu- tives with shocking salaries, dishonesty at work and in school, the entertainment industry, and dishonest news reporting, have all contributed to this decline. Legislators, investigators, prosecutors, and the courts have been quick to speak moral truths but continue to be slow in action. The question remains: Can the decline in ethical behavior be reversed, as citizens struggle with a broken legal system inundated with new laws? The answer is more likely to be a return to practicing the virtues and values upon which this nation was founded. Ethics and the law are not mutu- ally exclusive—they are intertwined throughout the text, providing an overview of government agencies designed to protect each individual’s rights (e.g., the right to privacy and self-determination).

Executive Branch: Office of Government Ethics The Office of Government Ethics (OGE) is an agency within the executive branch of government. The agency was established by the Ethics in Gov- ernment Act of 1978. Originally within the Office of Personnel Management, OGE became a separate agency on October 1, 1989. The Office of Govern- ment Ethics exercises leadership in the executive branch to prevent conflicts of interest on the part of government employees, and to resolve those con- flicts of interest that do occur. In partnership with executive branch agencies and departments, OGE fosters high ethical standards for employees and strengthens the public’s confidence that the govern- ment’s business is conducted with impartiality and integrity.48

The OGE website provides information about the agency and services it provides. The site helps people

Substance Abuse and Mental Health Services Administration The Substance Abuse and Mental Health Services Admin- istration’s mission is to reduce the impact of substance abuse and mental illness on America’s communities.

Health Resources and Services Administration The Health Resources and Services Administration (HRSA) is the primary federal agency for improving access to healthcare services for people who are unin- sured, isolated, or medically vulnerable. Its mission is to improve health and achieve health equity through access to quality services, a skilled health workforce, and innovative programs. HRSA takes a comprehen- sive approach to addressing human immunodefi- ciency virus/acquired immune deficiency syndrome (HIV/AIDS) with activities taking place across multi- ple bureaus and offices designed to deliver care to peo- ple living with HIV or AIDS, expand and strengthen the HIV care workforce, and improve access to and the quality of HIV care and treatment.

Agency for Healthcare Research and Quality The Agency for Healthcare Research and Quality (AHRQ) provides evidence-based information on healthcare outcomes, quality, cost, use, and access. Information from AHRQ’s research helps people make more informed decisions and improve the qual- ity of healthcare services.

Agency for Toxic Substances and Disease Registry The mission of the Agency for Toxic Substances and Disease Registry (ATSDR) is to prevent or mitigate harmful exposures and related diseases by applying science, taking responsive action, and providing trust- worthy health information.

Indian Health Service The Indian Health Service (IHS) is an operating divi- sion within the DHHS that provides a comprehensive federal health program for American Indians and Alaska Natives who belong to federally recognized tribes. “The Indian Health Care Improvement Act (IHCIA), the cornerstone legal authority for the pro- vision of health care to American Indians and Alaska Natives, was made permanent when President Obama signed the bill on March 23, 2010, as part of the Patient Protection and Affordable Care Act.”47

GOVERNMENT ETHICS 33

enforcement responsibilities in an impartial manner, the Committee is the only stand- ing committee of the House of Representa- tives with its membership divided evenly by party. These rules are intended to provide a fair procedural framework for the conduct of the Committee’s activities and to help ensure that the Committee serves the people of the United States, the House of Representatives, and the Members, officers, and employees of the House of Representatives.50

The scope of the Committee’s jurisdiction under the various authorizing rules and statutes involves duties and responsibilities related to:

■ Jurisdiction over all bills, resolutions, and other matters relating to the Code of Official Conduct.

■ Recommend administrative actions to establish or enforce standards of official conduct.

■ Investigate alleged violations of the Code of Official Conduct or of any applicable rules, laws, or regulations governing the performance of official duties or the discharge of official responsibilities.

■ Report to appropriate federal or state authori- ties substantial evidence of a violation of any law applicable to the performance of official duties that may have been disclosed in a committee investigation.

■ Consider requests for written waivers of the gift rule.

■ Provide oversight over foreign gifts and gifts to superiors and other federal employees.

■ Prohibit members, officers, and employees of the House of Representatives from soliciting or receiving gifts.51

The official Code of Conduct for the House of Representatives can be found on its Committee on Ethics website at ethics.house.gov.

Senate: Select Committee on Ethics (a) The ideal concept of public office, expressed by the words, “a public office is a public trust,” signifies that the officer has been entrusted with public power by the people; that the officer holds this power in trust to be used only for their ben- efit and never for the benefit of himself or of a few; and that the officer must never conduct his own affairs so as to infringe on the public inter- est. All official conduct of Members of the Sen- ate should be guided by this paramount concept of public office.52

understand the executive branch ethics program and its effort to reach federal employees and the general public. Common ethical issues discussed on the web- site include gifts from outside sources, gifts between employees, conflicting financial interests, remedies for financial conflicts of interest, impartiality in perform- ing official duties, seeking other employment, mis- use of position, outside activities, postemployment, representation to government agencies and courts, supplementation of salary, financial disclosure, infor- mal advisory letters and memorandum and formal opinions, DAEOgrams (memoranda to agency ethics officials providing guidance on how to interpret and comply with modifications or new issuances of ethics laws, policies, and procedures; copies of the memo- randa released since 1992 are available in the DAEO- grams section of the OGE website), and contractors in the workplace.

The public may lose confidence in the integrity of Government if it perceives that an employ- ee’s Government work is influenced by per- sonal interests or by payments from an outside source. An executive branch employee’s Gov- ernment work may have the potential to bene- fit the employee personally, affect the financial interests of the employee’s family, or involve individuals or organizations with which the employee has some past, present, or future connection away from the employee’s Govern- ment job. Separately, an employee might be offered a payment from a non-Federal source, such as a former employer, either before or after entering Government. Accordingly:

■ An employee may be disqualified from work- ing on a particular Government matter.

■ An employee may be prohibited from holding specified property.

■ An employee may be prohibited from accept- ing a payment from a non-Federal source.49

U.S. House of Representatives: Committee on Ethics The Committee on Ethics is designated the “super- vising ethics office” for the House of Representatives. The jurisdiction of the Committee on Ethics is derived from authority granted under House Rules and federal statutes.

The Committee on Ethics is unique in the House of Representatives. Consistent with the duty to carry out its advisory and

34 Chapter 2 Government, Law, and Ethics

citizens, which provides more public review and insight into the ethical conduct of members of the House of Representatives. The OCE reviews allega- tions of misconduct against members, officers, and staff of the House and, when appropriate, refers mat- ters to the House Committee on Ethics. The OCE is not authorized to determine if a violation occurred, nor is it authorized to sanction members, officers, or employees of the House or to recommend sanctions. The OCE is not able to provide advice or education on the rules and standards of conduct applicable to members, officers, and employees of the House.59 The mission of the OCE and its board is to assist the House in upholding high standards of ethical con- duct for its members, officers, and staff and, in so doing, to serve the American people. The board of directors consists of eight members, who are private citizens and cannot serve as members of Congress or work for the federal government.60 Additional infor- mation regarding the work of the OCE is available at its website oce.house.gov.

As the reader will note, there are a variety of laws and agencies that provide oversight and regulations that are designed to protect the rights and safety of all citizens. Government is a reflection of the people it serves. Failure of the many to participate in the polit- ical process leads to government for the few who do.

State Ethics Committees Many states have legislative ethics committees that hear complaints of ethics violations by legisla- tors. They often investigate complaints and impose penalties for ethics-related violations. Duties vary among the state committees. A state-by-state review can be found at www.ncsl.org/research/ethics/table -of- legislative-ethics-committees.aspx. “State legis- latures pass ethics laws that impose restrictions on themselves and lobbyists. To ensure these laws are kept, legislatures establish oversight entities that include ethics committees, ethics commissions or a combination of both. Internal ethics committees are an important way for legislatures to solidify their credibility with the public.”61

▸ POLITICAL MALPRACTICE Nothing is politically right which is morally wrong.

—Daniel O’Connell (1755–1847)

Political malpractice is negligent conduct by an elected or appointed political official. Ronald Brownstein wrote in a news column in the St. Petersburg Times, “Practical

The U.S. Senate Select Committee on Ethics consists of six members of the Senate, three of whom shall be selected from members of the majority party and three shall be selected from members of the minority party.53 The committee is responsible for investigating com- plaints involving a violation of the franking statute;54 financial disclosure statements; outside employment with respect to members, officers, and employees of the Senate; foreign gifts and decorations; gifts to an official superior or receiving gifts from employees with a lower salary level; and prohibitions against members, officers, and employees of the Senate soliciting or receiving gifts.55

The Senate Select Committee on Ethics is authorized to receive and investigate allegations of improper conduct that may reflect upon the Senate, including violations of law, violations of the Senate Code of Official Conduct, and violations of rules and regulations of the Senate; recommend disciplinary action; recommend additional Senate rules or reg- ulations to insure proper standards of conduct; and report violations of law to the proper federal and state authorities.56

U.S. Judicial Code of Conduct As with other branches of government, federal judges are expected to abide by a code of conduct that includes ethical principles and guidelines. “The Code of Conduct provides guidance for judges on issues of judicial integrity and independence, judicial diligence and impartiality, permissible extrajudicial activities, and the avoidance of impropriety or even its appear- ance.”57 The Code of Conduct for United States Judges includes the following ethical canons:

Canon 1: A Judge Should Uphold the Integ- rity and Independence of the Judiciary Canon 2: A Judge Should Avoid Impropri- ety and the Appearance of Impropriety in all Activities Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently Canon 4: A Judge May Engage in Extraju- dicial Activities that are Consistent with the Obligations of Judicial Office Canon 5: A Judge Should Refrain from Polit- ical Activity58

Office of Congressional Ethics The Office of Congressional Ethics (OCE) was cre- ated in March 2008 as an independent, nonparti- san office, governed by a board comprising private

POLITICAL MALPRACTICE 35

3. The third element of political malpractice requires proof of harm.

4. The fourth element requires proof of a causal connection between the politician’s breach of duty and the harm suffered. In other words, the plaintiff(s) must prove that the breach of duty was the proximate cause of the plaintiff ’s injury.

Senator Bob Dole, when speaking of Veterans Affairs Secretary Eric Shinseki regarding allegations of mismanagement, falsified records, and long waits for veterans in receiving health care, said, “If the facts reveal that he neglected his duties, then he should go.”65 By May 30, 2014, Secretary Shinseki, a retired general, resigned his office following the allegations with increasing pressure from Congress for him to resign. Like medical malpractice, political malprac- tice involves a failure to offer adequate healthcare services to help prevent the bureaucratic quagmire of regulations that hinders the provision of health care to those in need, as illustrated in the reality check The Coal Miner.

Flint, Michigan is not the only city concerned with questions that involve both political malpractice and criminal conduct facing government employees and officials regarding the health safety of drinking water. Residents of St. Joseph, Louisiana, for exam- ple, are concerned with drinking and bathing in murky brown water. The Louisiana health depart- ment claims tests show that there are no dangerous amounts of chemicals in St. Joseph’s water supply. However, this does not ease the fears of those living there. It is an ethical dilemma involving trust. Gov- ernment officials are not willing to drink the water, why should the public. While conducting a survey in Louisiana and 10 years before St. Joseph became the focus of public and media scrutiny, a hospital surveyor described his water pollution concerns, as described in the reality check Hospital Water Questioned.

The New Jersey Health Department’s web- site references public concern over the safety of tap water in the Dover Township/Toms River area of Ocean County as far back as 1995 [www.nj.gov /health/eohs/dovertwp.shtml], where the occur- rence of childhood cancer has been a concern for many years and linked to the drinking water. This website illustrates the difficulty in bringing closure to the people’s concerns for the health and welfare of their children.

Community outrage continues because of the slow pace in addressing public concerns about

steps are possible to help millions of low income families live healthier lives and receive more effective care when they need it. Ignoring that opportunity, while waiting for consensus on coverage, would be a form of political mal- practice.”62 The likelihood of a successful negligence case against a member of Congress is doubtful. If such a case ever got through a courtroom door, the following four elements of negligence would have to be proven:

1. The first element necessary to prove political malpractice requires that the plaintiff(s) be able to establish there is a duty to care. Establishing this first element of negligence for a senator, for example, would be a difficult hurdle. The oath of office for a senator is so amorphous that it would be difficult to establish a duty to care, as illustrated in the following quotes.

Oath of Office I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faith- fully discharge the duties of the office on which I am about to enter: So help me God.63

Looking beyond the oath of office:

For nearly three-quarters of a century, that oath served nicely, although to the modern ear it sounds woefully incom- plete. Missing are the soaring references to bearing “true faith and allegiance;” to taking “this obligation freely, without any mental reservation or purpose of evasion”; and to “well and faithfully” dis- charging the duties of the office.64

Should a plaintiff be able to overcome this first element of negligence, thus proving a duty to care, the remaining elements could be just as difficult to establish.

2. The second element of political malpractice requires the plaintiff prove that the duty to care was breached. Arguably, politicians, for example, who agree to veto any program the President supports while he is in office, are contrary to the spirit of the law. The dilemma here requires the plaintiff(s) to prove what specific duty to care was breached.

36 Chapter 2 Government, Law, and Ethics

mayors, and city managers have available the advice of the city attorney and/or their professional organi- zations when faced with ethical dilemmas.”66 This is particularly helpful in the decision-making process when decisions involve a reduction or elimination of services to the public, especially services to the elderly, disabled, or less fortunate.67

▸ CHAPTER REVIEW 1. A law is a general rule of conduct that is enforced

by the government. When a law is violated, the government imposes a penalty.

■ Public laws deal with the relationships between individuals and the government.

■ Private laws deal with relationships among individuals.

2. Common law is derived from judicial decisions. During the colonial period, the United States based its law on English common law, but states had the authority to modify their legal systems. As a result, there is no uniform system of com- mon law among the states.

■ Precedent—a judicial decision that may be used as a standard in subsequent similar cases. A precedent is set when a court deci- sion is rendered that serves as a rule for future guidance when deciding similar cases.

■ Res judicata—“the thing is decided”—refers to that which has been previously acted on

contaminated water. Government officials elected as the guardians of the communities they serve continue down the slippery slope of distrust.

Ethicists in Public Service Although not all cities may need to hire an ethicist in order to set priorities, it may be helpful in certain types of decisions. An independent, unbiased, profession- ally trained decision maker from who is an “outsider” may be more acceptable to councils, mayors, citizens, employees, or the press than one derived from inside the political arena. The city of Alexandria, Virginia, in 2008, “hired an ethics consultant for $9,000 per year. Cities must make decisions to set priorities when allocating scarce resources. City council members,

It was December 1989 when Larry, the hospital administrator, was making his morning visits to various departments, as he often did each day with both staff and patients. While visiting a medical unit he visited with Jimmy, one of the patients. Larry asked Jimmy, “Are we taking good care of you?” He said, “Yes.” He then turned to a man who was on the opposite side of his bed and said, “This is my brother Bill.” Bill, looking at Larry, choked up and asked, “Can you help my brother? He has given up the will to live. Please help my brother want to live.” I looked at Jimmy lying there in his bed, fragile and struggling to breathe between each word, as he said, “I can no longer carry on this way. I am ready to move on. I’m a tired old man. I have fought so long. I’ve needed benefits for so many years for my family and myself. I have had many promises over of the years of people promising to help me. But up until this moment in time, no one was able to help me. I have black lung disease. I struggle to breathe.” He then turned, looking over to Bill, and said, “My brother also has black lung disease. We worked together in the coalmines for many years. This is our reward.” I looked at Jimmy and slowly back to Bill and said, “I will have my staff help facilitate you in getting the help you need.” As we said our good- byes, I thought to myself, as I left the room, Jimmy has fought so long. He has asked for so little, a man forgotten by incompetent and corrupt bureaucratic leadership.

Michigan Governor Rick Snyder has admitted that the government failed the people. The following news article and reality check illustrate how the nation’s government, on the highest levels, continues to fail the people throughout the nation, from as far north as Michigan to as far south as Louisiana.

THE COAL MINER

Michigan Gov. Rick Snyder gave a State of the State address Tuesday night, following remarks he made a day earlier on how he’s made mistakes in handling the Flint, Michigan water crisis.

“I’m sorry and I will fix it,” Snyder said near the opening of his speech, directly addressing the residents of Flint. “Government failed you at the federal, state and local level.”

—Jessica Durando, USA Today, January 20, 2016

HOW WATER CRISIS IN FLINT, MI BECAME FEDERAL STATE OF EMERGENCY

CHAPTER REVIEW 37

4. Administrative law is public law issued by admin- istrative agencies to administer the enacted laws of the federal and state governments.

■ Administrative agencies implement and administer the administrative law.

■ The rules and regulations established by an agency must be administered within the scope of the authority delegated to the agency by Congress.

■ Agency regulations and decisions can be subject to judicial review.

■ Each state has its own system of adminis- trative law.

5. Separation of powers provides that no one branch of the government—legislative, execu- tive, or judicial—will be clearly dominant over the other two.

■ Legislative branch enacts, amends, and/or repeals existing laws.

■ Executive branch administers and enforces the law.

■ Judicial branch resolves disputes in accor- dance with the law.

6. The Department of Health and Human Services (DHHS) develops and implements administra- tive regulations for carrying out national health and human services policy objectives through various agencies within DHHS.

or decided by the courts—a final judgment rendered by a court of competent jurisdic- tion on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to subsequent action involving the same claim, demand, or cause of action.

■ Stare decisis—common law principle (“let the decision stand”) provides that when a decision is rendered in a lawsuit involv- ing a particular set of facts, another lawsuit involving an identical or substantially sim- ilar situation is to be resolved in the same manner as the first lawsuit.

■ Original jurisdiction—authority of a court to first conduct a trial.

■ Appellate jurisdiction—authority of a court to hear appeals from trial court decisions.

3. Statutory law is written law that emanates from legislative bodies.

■ A statute can abolish any rule of common law. ■ The Constitution is the highest level of

enacted law; it takes precedence over the constitutions and laws of specific states and local jurisdictions.

■ Statutory law can be amended, repealed, or expanded by the legislature. States and local jurisdictions can only enact and enforce laws that do not conflict with fed- eral laws.

Joe was in Shreveport, Louisiana. It was Sunday evening about 11:00 PM. Joe opened his computer to review his itin- erary on his company’s website when he noticed that the survey starting date for a small community hospital in south central Louisiana had been changed from Tuesday to Monday. The rush began. He packed his clothes, loaded his rental car, and checked out of the hotel, accidentally leaving his suits behind.

Joe arrived at the new hotel at about 2:00 AM. He checked in and unpacked. Joe turned on the water and found it was a mucky brown color. He called the front desk to question the water that flowed into the sink, tub, and toilet. After a bit of a chuckle, the desk associate said, “It’s OK. It’s always brown.” Joe thought to himself, “Well, at least the hospital will have clear, clean water.”

The following day, Carol, the survey coordinator, greeted Joe and his survey team in the hospital lobby. Carol escorted the survey team to a conference room, which was assigned to the team as a home base during the survey. The first thing Joe noticed was bottled water, apple juice, and orange juice packed in ice on the boardroom table. He thought, “Oh happy day.” He then went to the small sink in the anteroom of the boardroom to wash his hands. Joe observed that the water was a brown in color, just a bit lighter than the water at the hotel. Before leaving the room, Carol said, “If you need anything, I’ll be just across the hall.” Joe quickly replied, “There is something I have some concern with—the quality of the water here in central Louisiana.” Carol replied, “Oh no, it’s OK. It’s been tested by the health department.” Joe replied, “Could you please show me any documentation you have on file that I can review.” Carol replied, “OK, I’ll see what we have on file.” By the end of the survey, there was no health department paperwork available in the hospital for Joe to review. He suggested that an attempt be made to seek clarification from the health department, in writing, regarding the safe use of the hospital’s water source.

HOSPITAL WATER QUESTIONED

38 Chapter 2 Government, Law, and Ethics

14. Lawrence Friedman, A History of Ameri- can Law (New York, NY: Touchstone Books, 1985), 92.

15. Lebron v. Gottlieb Memorial Hospital, Docket Nos. 105741, 105745 cons., (Ill. February 4, 2010).

16. Cal. Civ. Code §3333.2(b) (West 2009). 17. Fla. Stat. §766.118 (2009). 18. People v. Caballes, 221 Ill. 2d 282, 313 (2006). 19. Black’s Law Dictionary, 6th ed. (Eagan, MN:

1990), 1305. 20. 2 Root 90, 92 (Conn. 1794). 21. U.S. Department of Health and Human Services,

Task Force on Medical Liability and Malpractice (Washington, DC: Author, 1987), 3.

22. Id. 23. Zinman, “Study Finds Hospitals ‘Harm’ Some,”

Newsday, March 1, 1990, 17. 24. The Robert Wood Johnson Foundation, “The

Tort System for Medical Malpractice: How Well Does It Work, What Are the Alternatives?” Abridge, Spring 1991, 2.

25. The Robert Wood Johnson Foundation, “Negli- gent Medical Care: What Is It, Where Is It, and How Widespread Is It?” Abridge, Spring 1991, 6.

26. D. Sharp, “Errors Renew the Call for Doctor Review,” USA Today, March 27, 1995, 2.

27. K. Painter, “Breast Cancer Top Cause of Malprac- tice Complaints,” USA Today, June 15, 1996, 1.

28. Sandra B. Goodman, “As Hands-on Doctoring Fades Away, Patients Lose,” The Washington Post, May 20, 2014, E1.

29. Becker’s Hospital Review, “Legal & Regu- latory Issues: 29 Statistics on Medical Mal- practice Payouts and Lawsuits,” http://www .beckershospitalreview.com/legal-regulatory -issues/29-statistics-on-medical-malpractice -payouts-and-lawsuits.html

30. U.S. Constitution, art. 6, § 1, cl. 2. 31. 5 U.S.C.S. §§ 500–576 (Law. Co-op. 1989). 32. An “agency means each authority of the Govern-

ment of the United States, … but does not include (A) the Congress; the Courts of the United States; …” 5 U.S.C.S. § 551(1) (Law. Co-op. 1989).

33. 5 U.S.C.S. § 702 (Law. Co-op. 1989). 34. 5 U.S.C.S. § 706 (Law. Co-op. 1989). https://

w w w. g p o. g o v / f d s y s / p k g / U S C O D E - 2 0 1 0 - t i t l e 5 / ht m l / U S C O D E - 2 0 1 0 - t i t l e 5 - p a r t I -chap7-sec706.htm.

35. 401 A.2d 872 (Pa. Commw. Ct. 1979). 36. Id. at 873 37. Department of Human Serv. v. Berry, 764 S.W.2d

437 (Ark. 1989). 38. Id. at 439 39. 88 F.R.D. 583 (E.D. Mich. 1980).

7. Ethics and the law are not mutually exclusive— they are intertwined. Government ethics com- mittees include:

■ Executive branch: Office of Government Ethics ■ U.S. House of Representatives: Committee

on Ethics ■ Senate: Select Committee on Ethics ■ Judicial branch: U.S. Judicial Code of

Conduct ■ Office of Congressional Ethics

8. Political malpractice is negligent conduct by an elected or appointed political official.

▸ REVIEW QUESTIONS 1. Define the term law and describe the sources

from which law is derived. 2. Define the legal terms precedent, res judicata,

stare decisis, original jurisdiction, and appellate jurisdiction.

3. Describe the function of the three branches of government.

4. What is the meaning of separation of powers? 5. What is the function of an administrative

agency? 6. Describe why the Department of Health and

Human Services was created.

▸ NOTES 1. Bernard Schwartz, The Law in America (New

York: McGraw-Hill, 1974), 1. 2. 5 U.S. (Cranch) 137, 163 (1803). 3. The Law Dictionary, “What is Public Law?”

http://thelawdictionary.org/public-law/ 4. Pierce v. Ortho Pharmaceutical Corp., 417 A.2d

505, 512 (N.J. 1980). 5. Cruzan v. Director, Missouri Department of

Health, 496 U.S. 261, 110 S.Ct. 2841 (1990). 6. A.K.R. Kiralfy, Potter’s Historical Introduction

to English Law (London, UK: Sweet & Maxwell, 1962), 9.

7. John Reeves, History of the English Law (London, UK: Reed and Hunter, 1814), 2.

8. Id. 9. George W. Keeton, English Law (Newton Abbot,

UK: David & Charles, 1974), 70. 10. Id. 11. Id. 12. Kiralfy, supra note 6, at 9–10. 13. Schwartz, supra note 1, at 29.

NOTES 39

/public/index.cfm/files/serve?File_id=551b39fc -30ed-4b14-b0d3-1706608a6fcb

54. Franking Commission, “What is the Frank?” https://cha.house.gov/franking-commission /what-frank.

55. U.S. Senate Select Committee on Ethics, “Juris- diction,” http://www.ethics.senate.gov/public /index.cfm/jurisdiction

56. Id. 57. U.S. Courts, “Code of Conduct,” http://www

.us cour ts.gov/Ru lesAndPolicies/C o desOf Conduct.aspx

58. USCourts.gov, “Code of Conduct for United States Judges,” http://www.uscourts.gov/judges - j u d g e s h i p s / c o d e - c o n d u c t - u n i t e d - s t at e s -judges#f.

59. Office of Congressional Ethics, “Frequently Asked Questions,” http://oce.house.gov/faq .html.

60. Id. 61. National Conference of State Legislatures,

“State Ethics Committees,” http://www.ncsl.org /research/ethics/table-of-legislative-ethics -committees.aspx

62. Ronald Brownstein, “Health Care Safety Net Stretched Thin,” St. Petersburg Times, June 4, 2004, Section A, 13a.

63. U.S. Senate, “Oath of Office,” http://www.senate .gov/artandhistory/history/common/briefing /Oath_Office.htm

64. Id. 65. Susan Page, “Veterans Affairs A ‘Disaster’,” The

Washington Post, May, 23, 2014, 1A. 66. Ethics in Public Service, “Alexandria Hires

Ethics Consultant,” April 9, 2009, http: // urpa5358group2.wordpress.com/2009/01/31 /alexandria-hires-ethics-consultant/

67. Laura Olson, “URPA 5358 Group 2,” January 2, 2009, http://urpa5358group2.blogspot.com

40. Yahoo!, “U.S. Government Departments and Agencies,” http://dir.yahoo.com/Government / U _ S _ _ G o v e r n m e n t / E x e c u t i v e _ B r a n c h /Departments_and_Agencies/

41. Donald Levitan and Elwyn E. Mariner, Your Massachusetts Government, 10th ed. (Newton Center, MA: Government Research Publica- tions, 1984), 14.

42. Heritage of Yankton, Inc. v. South Dakota Dep’t. of Health, 432 N.W.2d 68, 77 (S.D. 1988).

43. Marbury v. Madison, 5 U.S. (Cranch) 137, 180 (1803).

44. Government Publishing Office, “The United States Government Manual: Executive Branch: Departments,” https://www.gpo.gov / f d s y s / p k g / G O V M A N - 2 0 1 5 - 0 7 - 0 1 / x m l /GOVMAN-2015-07-01-117.xml

45. National Institutes of Health, “What We Do: Mission and Goals,” https://www.nih.gov/about -nih/what-we-do/mission-goals

46. U.S. Food and Drug Administration, “FDA Fundamentals,” http://www.fda.gov/AboutFDA /Transparency/Basics/ucm192695.htm

47. Indian Health Service, “Indian Health Care Improvement Act,” http://www.ihs.gov/ihcia/

48. U.S. Office of Government Ethics, http://www .usoge.gov

49. U.S. Office of Government Ethics, “Financial Conflicts of Interest,” https://www.oge.gov/web /oge.nsf/Financial+Conflicts+of+Interest

50. Committee on Ethics, “Committee Rules,” http://ethics.house.gov/about/committee-rules

51. Committee on Ethics, “Jurisdiction,” http:// ethics.house.gov/jurisdiction

52. United States Senate Select Committee on Eth- ics, “Jurisdiction,” http://www.ethics.senate .gov/public/index.cfm/jurisdiction

53. U.S. Senate Select Committee on Ethics, “Rules of Procedure,” http://www.ethics.senate.gov

40 Chapter 2 Government, Law, and Ethics