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Studying the Law

  • Should we study the processes and principles of the law or just the content of laws identified as healthcare law?
  • There is no definitive category of health care law. U.S. has enacted few major laws considered healthcare: Medicaid and Medicare in 1965, EMTALA, and in 2010, the Affordable Care Act.

Studying the Law (con’d)

  • Can we just learn the laws or how they change, the processes and principles of law? The original ACA has been and is still being challenged in the courts. It has already been revised by several Supreme Court decisions. An anti-ACA administration has vowed to eliminate it. Repeal failed, but steps are being taken to erode and sabotage the ACA as well as have it ruled unconstitutional in court.

Studying the Law (con’d)

  • While content of laws like the ACA, Medicaid, Medicare, EMTALA will be covered, numerous other laws, administrative rules and regulations, and court decisions affect any enacted law, including healthcare law.
  • Attorneys learn law in courses like torts and constitutional, criminal, civil, contracts, and corporate law, not necessarily content topics.

Scope of course

  • So a more precise course title:

The study of law as related to the health of the public and as related to the management of healthcare and human service organizations

  • The approach will be learning enacted law and as importantly how law is enacted and changed by administrative agencies and the courts.

Learning the law includes

  • Content of some existing established laws in healthcare and laws that affect it
  • Principles and processes of how laws made, how changed, constitutional limits, and practical realities
  • Managing in the legal environment
  • Advocacy for individuals, organizations

The law

Defined operationally as the:

sum or set of all laws in all jurisdictions from sources like constitutions, statutes, judicial opinions, regulations.

2. Legislative, Executive, Judicial branches

3. Processes of the legal system

How it is made, enforced, and interpreted

The law (con’d)

Practical realities of the legal process

  • Politics affects the legislative process
  • Engaging the judicial system can be expensive and time consuming limiting who can participate and affecting outcomes
  • Administrative Agencies have major influence in legal environment

Characteristics of law

  • Is law fair? Just? Equitable?
  • Is there an economic component?
  • Costs money to make, enforce, interpret law
  • Costs to enforce basic rights
  • Limits who can engage in the law
  • Those with resources can outlast those without, affecting outcomes and justness

Is law evolutionary or revolutionary?

Examine three cases and their time frame using

Resources in D2L Contents:

  • Dred Scott (1857)
  • Plessy v Ferguson(1896)
  • Brown v Board of Education (1954)

Note the time frame. 150 years with 50 year incremental improvements from upholding enslaving people, to ‘separate but equal’, to overturning ‘separate but equal’.

Healthcare law evolutionary?

  • Why not use an example of healthcare law to demonstrate evolutionary? Too limited.
  • First real healthcare legislation not until 1965, enacting Medicaid and Medicare.
  • Next came the Affordable Care Act 2010.
  • Will it be a half century for another major healthcare legislation in the U.S.?

Lawyers and Non-Lawyers

You ask your attorney, “Will we win?”

Attorney likely to say :

  • The law is not clear on that issue.
  • It depends.
  • Law can be contradictory, complex, vague, dynamic, always changing.
  • Cannot be said exactly what is prohibited or allowed or what will be an outcome.

Learning the Law: Four Sources of Law

  • Statutes created by legislatures and Congress
  • Constitutions (Federal and States)
  • Regulations
  • Authority delegated by legislative to administrative agency to refine and implement the law
  • Judicial Opinion– known as case law

-Courts define and interpret law

-Opinions have force of law

-Enumerate and interprets principles that become common law

Roles of Three Branches of Government explained in Articles 1-3 of U.S. Constitution

  • Article 1: Congress
  • Article 2: Executive
  • Article 3: Judicial

Article 1 creates Congress

  • Article 1 of Constitution makes Congress the lawmaking body.
  • Senate: 2 Senators from each state make 100 Senators, minimum age 30, serving 6 year terms
  • House of Representatives: 435 total, minimum age 25, serving 2 year terms, assigned by state populations

Congressional Leaders

  • Majority political party holds power of leadership positions, deciding committee chairs, composition, activities, and agendas.
  • Two Agencies under Congress
  • Congressional Budget Office (CBO): Costs of bills or mandates
  • General Accounting Office (GAO): How tax dollars spent

Both considered bipartisan politically

Influences on Congress

  • Constituents
  • Interest Group or lobbyists

Article 2—Executive Branch

  • President, Cabinet
  • Administrative Agencies such as
  • DHHS
  • CMS
  • CDC
  • FDA
  • NIH
  • SAMHSA
  • EPA

Article 3 creates the Judicial System

Two levels of courts within state and federal systems are:

Trial: All cases come here first

Appellate--opinions are about law; may only involve attorneys debating issues of law.

Overlap of federal and state jurisdictions can result in “forum shopping.” While court must have jurisdiction, if it overlaps, attorney may try to find the best forum to improve outcome for a case.

The legal system

THE THEORY

  • Legislative makes law
  • Executive enforces it

  • Judicial interprets it

THE REALITY

..that’s it, makes law.

..and interprets it as it enforces and makes it under administrative agencies (all 3 functions)

Makes law through opinions (does 2 of 3)

Theory and reality: Administrative Agencies

  • Administrative Agencies called Fourth branch of legal system

-Administrative agencies (bureaucracy)

Created by Congress, federally, or state legislature, at state level

Most administrative agencies like DHHS, FDA, CDC are under executive branch

-

Administrative Agencies

(Government Accounting Office (GAO) and Congressional Budget Office (CBO)—both under Congress and considered non-partisan politically, can rely on reports)

All administrative agencies given autonomy to make law, have quasi-legislative and/or judicial function, and enforcement powers

Administrative Agency functions

  • For example, a state Department of Health, created by a legislature but under the Governor, is authorized to create and impose detailed rules and regulations on nursing homes. If provider home breaks rule, the agency can impose a fine, or close the home. If contested, the provider must appeal within the department’s judicial structure.

Features of Legal System

  • Separation of Powers of Three Branches
  • Checks and Balances
  • Senators and Representatives elected on staggered terms
  • President can veto law
  • Presidential veto can be overridden with 2/3 Congressional vote each house

Checks and Balances (con’d)

  • Senate approves Presidential cabinet and judicial appointments
  • Both houses of Congress have to approve bill to be a law
  • Constitution can be modified with 2/3 each Senate and House and 2/3 states ratify
  • Presidential treaties need 2/3 Senate approval

Checks and Balances

  • Federal judges appointed for life terms, removable only by impeachment
  • Supreme Court determines constitutionality of Congressional laws
  • No appeal of Supreme Court decisions: The Supreme Court’s interpretation of law is the ‘Law of the Land’

Court cases interpreting Constitution

  • McCulloch v Maryland (1819)
  • Interpretation of Tenth Amendment: Federal powers are not limited to those expressly provided for in the Constitution
  • Marbury v Madison: (1803)
  • Supreme Court rules it has Constitutional right to review of acts of Congress

Gibbons v Ogden (1824) Interstate Commerce Clause grants interstate regulation to federal government

Legal System

  • How is law made by judicial opinions?
  • Congress enacts law, signed by Executive
  • That law challenged in court may result in an opinion that declares the law, or portions unconstitutional
  • That law may be interpreted or clarified in language

Issue: Can President Enact Laws?

  • President can make limited law by Executive Orders and overseeing administrative agency rules and regulations
  • Executive Orders cannot authorize funding
  • Executive Orders only last until next President who may remove them (Why Lincoln wanted Thirteenth Amendment, not just Emancipation Proclamation.)

Function of law and legal rights

  • Purpose of legal system

-establish, define, enforce legal rights

  • Legal right
  • specific relationships among individual people or institutions that are recognized in the law and enforced through the legal system
  • relationships that establish various privileges and responsibilities among those governed by the legal system

Legal rights and constitutions

  • All rights set out in federal and state constitutions establish relationships only between citizens and the government, not among citizens in private capacity.
  • E.g. Defenders of fired conservative talk show host who used offensive word on air for effect, claimed 1st amendment free speech violated. Why not a 1st amendment violation?
  • Common law of tort liability or civil rights statutes establish legal relationships that do protect speech and constitutional freedoms from interference by private parties.

Rights (con’d)

  • Right to legislated entitlements or responsibilities to other people order those rights in terms of
  • Who is protected from whom
  • What relationships established by which law
  • What they protect or require
  • Rights are only what are defined and enforced by legal system--no more, no less

Reality of rights

  • Free speech has meaning at practical level only because courts willing to apply it to real situations
  • Legal right to be real, must be enforced

e.g. Separate but equal determined unconstitutional in 1954 due to Brown v Board of Education, but not actually enforced until 60’s

  • Ethics not in law are not rights. Those ethics enforced on lawyers and doctors can have economic consequences for them, but are not enforceable as ethics, must be made law to be enforced.

Perspectives of law

  • Enforcement is inherently discriminatory
  • Not intentional discrimination or profiling, but lacking resources to enforce laws 100% means setting priorities. Practical application limits enforcement. What is illegal becomes “what can I get away with” or “don’t tell me what I can’t do, tell me how to do what I want to do.”
  • The one motorist, pulled over when others were not but also speeding, asks, “why me?”
  • Officer responds, “Ever go fishing? Catch them all?”

Perspectives (con’d)

  • Outcomes may be due more to
  • Relative resources available to the parties
  • Preparation and competence of counsel
  • Ability to tolerate status quo pending a final decision
  • Factors responsible for the outcome of a case may not be the correctness of the interpretation or justness of the result

People do not understand this, nor do lawyers always inform people of this. If not perfectly enforced, law boils down to “what you can get away with.”

Credits

  • These slides developed in part in conjunction with readings from The Law and the Public’s Health, 7th edition (2007) by Kenneth Wing and Teitelbaum and Wilensky’s Health Policy and Law (2017).