Running head: HPHA 5310 FINAL PAPER 1

HPHA 5310 Health Law & Ethics Final Paper

My Ideal Healthcare System

August 1, 2018
HPHA 5310 FINAL PAPER 2

My Ideal Healthcare System

According to Kovner and Knickman (2015), people often perceive that the United States

has the best healthcare system in the world, and the total healthcare spending accounted for more

than 17% of the U.S. gross domestic product in 2012. However, if we look at the performance

from the health outcome’s perspective, the U.S. healthcare system lags behind its peers.

Compared to the Organization for Economic Co-operation and Development (OECD) peers, the

life expectancy in the United States is 1.5 years below the average (Kovner & Knickman, 2015).

People use the word “unsystematic” to describe the healthcare system in the United States

because our system is not organized. Nevertheless, healthcare policymakers and most other

interested observers agree on the importance of the three guiding principles that have shaped the

structure of our healthcare arrangements and have been behind many of the reform efforts:

access, quality, and cost (Budrys, 2012). These three principles are the goals of the healthcare

system. Even though there are so many different opinions on what our healthcare system should

look like and how to get there, almost all consumers agree that they want quality health care,

they need to have access to care and services when they need to and they don’t want to go

through medical bankruptcy. We might not have an organized “system”, but there is agreement

on what we want our health care system to accomplish. In this paper, I would like to build my

ideal healthcare system based on these three goals. Healthcare system involves various

stakeholders and is very complex. Not all areas of healthcare system will be addressed in this

paper, but the following areas are the key components that I would like my ideal healthcare

system to have:

Access:
HPHA 5310 FINAL PAPER 3

1. Adoption of HIPAA with some modifications to protect patient privacy and

security of protected health information.

2. A rule similar to EMTALA but applies to all healthcare facilities that ensures

that patient receives medical care under emergencies.

Quality:

3. Adoption of the Joint Commission’s Sentinel Event Policy to protect patient

safety.

4. Adoption of the current medical malpractice system.

Cost:

5. Adoption of the current Fraud, Waste and Abuse (FWA) system with

modifications and additions.

1. Patient Privacy Rule similar to HIPAA

Why do we need a rule to protect patient privacy? According to Koch (2017), in 2015,

about one-third of the United States population or approximately 112 million people have been

affected by breaches of protected health information (PHI). People often have misconceptions

about what PHI is. It is important to know that PHI does not only include health information,

such as HIV positive status, but also includes any information with an identifier that links a

specific patient to healthcare information, such as name, social security number, telephone

number, home address and etc. If your PHI is breached, that means not only your privacy related

to your health status will be compromised, your important personal information might also be

compromised, which might lead to fraudulent activities. So in my ideal healthcare system, the

federal rule is needed to ensure the privacy and the security of PHI.
HPHA 5310 FINAL PAPER 4

I think HIPAA hasbeen well designed and has evolved with the modern technology. First,

let us look at our current rule that protects patient health information-Health Insurance

Portability and Accountability Act (HIPAA) of 1996. HIPAA was signed into law in 1996 to

regulate the privacy of patient health information. A Privacy Rule and a Security Rule were later

published to address the concern for patient’s privacy, especially via electronic transmissions.

HIPAA has defined the patient’s rights with regards to PHI and has listed the safeguards, risk

assessment and other requirements that a covered entity (CE) has to meet. The basic goals of

HIPAA are to protect PHI using minimum necessary standards and to penalize CE that are not

compliant. In my opinion, I would like to have my healthcare system to adopt HIPAA, and I

think HIPAA has addressed many areas that important to protect PHI. However, some

modifications need to be made. The biggest change I would like to have is to increase the civil

monetary penalty levels. For example, if the HIPAA violation is due to willful neglect and was

not corrected, the CE may face a fine of $50,000. I think the penalties should be increased so that

CE will be more cautious when handling PHI.

2. EMTALA with Modifications

As one of the three goals of healthcare, access is very important and needs to be

addressed in my ideal healthcare system. People need access to quality healthcare and I think this

is a basic right for all citizens, especially in emergency situations. This has somewhat been

addressed in the Emergency Medical Treatment and Labor Act (EMTALA). As a condition of

Medicare participation, EMTALA requires hospitals with an emergency department to provide

all patients who come to the emergency room with an appropriate medical exam to detect an

emergency medical condition, and patients with the emergency medical condition need to be

stabilized (Hsuan et al., 2017). Hospitals cannot turn away a patient who comes to the emergency
HPHA 5310 FINAL PAPER 5

room because of his uninsured status or his inability to pay. However, one big flaw is that

EMTALA only applies to Medicare-participating hospitals. People may argue that in the United

States, most hospitals would survive without accepting Medicare and Medicaid patients.

Therefore, it is likely that most hospitals need to comply with EMTALA.

Is it right for those freestanding ERs that do not accept Medicare and Medicaid to turn

away patients? Let us look at this scenario first before we answer the question. You don’t have

insurance and you walk to your job every day because you cannot afford a car. On your way to

work one day, a car hits you and your nose and ears are bleeding. You then go to the nearest ER

to get help. The ER has a sign that says “we do not accept Medicare or Medicaid”. You ask if

you could see a doctor, but the front desk refuses your request because you don’t have any

insurance. A few hours later, you die because of head injuries. Is it right to refuse emergency

patients? No. Is it ethical turn away patients? No. We should not allow this to happen. Healthcare

facilities should provide care to all emergency patients, and they cannot just dump a patient

because they do not accept Medicare. In fact, with the rapid growth of freestanding ERs, 18

states have established specific policies that are comparable to EMTALA, and require facilities

to accept all patients for treatment and stabilization regardless of insurance status (Meyer, 2016).

In my ideal healthcare system, EMTALA will be enforced in all healthcare facilities

nationwide that have an emergency department, regardless of the types of insurance they take. I

understand that it might become a financial burden to some freestanding ERs. Some level of

reimbursement from the federal and state government may be needed. But the goal is to make

sure emergency patients get necessary care first regardless of their ability to pay and no

emergency patients should be turned away by ERs.

HPHA 5310 FINAL PAPER 6

3. Patient Safety

Patient safety should always be the priority in any healthcare system. Healthcare facilities

need to make sure that their facilities are safe for the patient to receive medical treatment. In my

ideal healthcare system, patient safety events need to be reported and monitored, and a policy

like the Joint Commission’s Sentinel Event Policy needs to be in place to keep patients safe. The

Sentinel Event Policy was implemented in 1996 by the Joint Commission to help hospitals that

experience serious adverse events improve safety and learn from those sentinel events (The Joint

Commission, 2017). The Joint Commission has its own definition of “sentinel event” and also

provides a list of events that are sentinel events. When there is a sentinel event, the hospital

should have an appropriate response, in which a comprehensive systematic analysis and a

corrective action plan are the two most important components. The comprehensive systematic

analysis must be thorough and credible, and the corrective action plan must be acceptable. All

data will be collected, de-identified and entered into the Sentinel Event Database. The Sentinel

Event policy implemented by the Joint Commission helps hospitals prevent, detect, and respond

appropriately in case of a sentinel event and ensures that patient safety is a priority in all

hospitals.

Some people argue that it is not always right to disclose safety events, especially when

the affected patients cannot be determined or the outcomes have not been determined. However,

I believe an ideal healthcare system should be built upon trust, transparency, and honesty.

Healthcare organizations have the ethical obligations to inform the patient, and the patient has

the right to know what happened, why it happened, and what will be done to correct it.

Disclosure of serious safety event might have significant negative effects on healthcare

organization’s finance and reputation, but it protects the integrity of the medical profession and it
HPHA 5310 FINAL PAPER 7

demonstrates the organization’s commitment to honesty and transparency to build public trust

(Dudzinski, Hebert, Foglia, & Gallagher, 2010). In addition, I believe disclosure of serious safety

event and proactively taking actions set up a good example to organizations employees

internally. Proper disclosures and follow up actions demonstrate an organization’s culture and

values, and send a message to its employees educating and reminding them that patient safety is

always a priority.

4. Medical Malpractice System

Another important component of patient safety is the medical malpractice system.

Nothing is perfect and we all make mistakes. Some mistakes can be fixed and cause no harm to

the patient. Some mistakes or so-called “malpractice” may cause injuries, loss or damage to the

patient. When an apology and a disclosure are not sufficient, and litigation might be the only way

to solve the problem. Thus, a proper medical malpractice litigation system like what we currently

have in the United States is necessary for my ideal healthcare system.

According to Studdert et al. (2004), three social goals of malpractice litigation are to

deter unsafe practices, to compensate persons injured through negligence, and to exact corrective

justice. Because of the existence of the malpractice litigation system, physicians are reminded

constantly of what should happen if he/she has a misconduct and how much it would cost. The

malpractice litigation system encourages all healthcare professionals associations to have

standards with regard to patient safety and their professional conduct. In addition, the

malpractice litigation system allows the patients or their family to seek justice and to get

financial compensation if the patients are injured. Therefore, I think our current malpractice

litigation system serves its purposes well, and should be in place in my ideal healthcare system.
HPHA 5310 FINAL PAPER 8

I am aware that there are some problems with the current malpractice litigation system.

The most obvious problems are overutilization of malpractice lawsuits and physicians practicing

defensive medicine. First, lots of patients are not suing their physicians because they are harmed

or they get improper treatment, they are suing them because they do not like them. Since a lot of

physicians and hospitals are trying to settle instead of going to court, this gives these patients an

opportunity to abuse the malpractice system. The direct result of this is that more and more

physicians are trying to practice defensive medicine. Physicians order more, sometimes

unnecessary and expensive, tests and procedures to avoid lawsuits. They also try to avoid risky

but effective approach, which leads to the bad outcome for the patient. Financially this also

contributes to the sky-rocking healthcare spending in the United States because more specialists

are referred to. However, I do not think that the changing the malpractice litigation system will

change the trend of overutilization of malpractice lawsuits and physicians practicing defensive

medicine. If we do a root cause analysis, we will see that the source of the problem is not the

malpractice system. A better regulatory system to protect patient safety and to ensure the quality

of care is the solution.

5. Fraud, Waste and Abuse Regulations

Healthcare in the United States is expensive. According to the Cox and Sawyer (2018),

the U.S. spends more per person on health than comparable countries. In 2016, health spending

per person in the U.S. was $10,348. On average, other wealthy countries spent about $5169 on

health per person, which was only half as much as what we spent (Cox & Sawyer, 2018). Why is

the healthcare so expensive in the United States? According to a report published by the National

Conference of State Legislatures in 2010, fraud and abuse are widespread in both the public and

private healthcare sectors, and account for 3 percent to 10 percent of Medicaid payments
HPHA 5310 FINAL PAPER 9

nationwide. Medicaid expenditures for fraudulent claims cost states billions of dollars each year.

Therefore, regulations are needed to combat fraud, waste, and abuse (FWA) in my ideal

healthcare system.

FWA can be committed by medical providers (health professionals, hospitals, drug

suppliers and etc.), patients and insurers. However, according to the National Conference of

State Legislatures (2010), over 70% of the health care fraud is committed by medical providers.

Thus, I would like to emphasize some regulations that are closely related to healthcare providers.

In our current legislation system, federal laws governing fraud and abuse include all of the

following: False Claims Act (FCA), Anti-Kickback Statute (AKS), Physician Self-Referral Law

(Stark Law), Social Security Act and the United States Criminal Code. However, FCA, AKS and

the Stark Law only impose penalties to entities who defraud governmental programs such as

Medicare and Medicaid. For example, if a private practice does not bill Medicare or Medicaid, it

is not subject to these FWA regulations. This could be a huge problem in my opinion and poses

risks to patient safety. FWA occurs in all healthcare sectors and it should be regulated no matter

who the payor is. In addition, FWA has negative effects on patients physically and financially,

because patients might get referred to a not so good physician that is offering a kickback to their

family doctors for referrals, and paying a lot more money for a drug that is not needed because

that physician also receives luxurious gifts from the drug company. This is obviously not

acceptable, but the AKS and the Stark Law do not apply simply because that physician does not

bill Medicare or Medicaid. Thus, in my ideal healthcare system, the FWA regulations should

apply to all providers, regardless of the type of insurances they bill. Kickbacks should always be

prohibited. Billing for services that are provided should always be considered as fraud regardless

of who the payor is.

HPHA 5310 FINAL PAPER 10

Summary

In summary, access, quality and cost are the three crucial components of a healthcare

system and an ideal healthcare system should be built around these three components. In my

opinion, HIPAA is necessary to protect patient privacy. A patient safety system should be in

place and a medical malpractice system should also be clearly set up to ensure the quality of the

care. EMTALA and FWA regulations should be expanded to all healthcare providers so that

there is less disparity in healthcare. Additionally, I would like my ideal healthcare system to have

clear regulations regarding physicians’ interactions with healthcare vendors to avoid conflict of

interest and to build trust again. Currently, there is little or no federal regulations regarding

physician and vendor interactions. Detecting, preventing and managing conflict of interest totally

relies on individual institution. The CMS Open Payments database does provide some valuable

data regarding vendors’ activities. However, without a federal regulation, it is extremely difficult

for an institution to enforce stringent rules on physicians’ external activities with vendors. Free

drug samples have also caused problems in our healthcare system, and should be regulated

federally as well.
HPHA 5310 FINAL PAPER 11

Extra Credit:
It has been almost 10 weeks since the summer semester started and I really enjoyed this class.

There are many assignments in this course and some of them are not easy for a person who never

went to law school. However, after completing these assignments, I feel much more confident

and I appreciate that this course provides me with this kind of knowledge that is needed in my

career. The one thing that I like the most about this course is the live lecture. I have taken several

online courses and this is so far the first course that the instructor offers the live lecture. I

enjoyed participating in the live lectures and asking questions. The topics covered in the live

lectures are very informative and helpful. The Q&A is also very useful because I get to learn

from my classmates’ questions. The other thing that I really appreciate about this course is that

the instructor is very knowledgeable and experienced in what she is teaching. Her experience

working in healthcare cannot be replaced by a doctor’s degree. I like to hear about her

experience and cases that she has worked with.

Overall, I enjoyed this course. I think eight weeks is a short period of time to learn that many

topics related to healthcare law and ethics. Therefore, I wish we could have more time to digest

the knowledge.
HPHA 5310 FINAL PAPER 12

References

Kovner, A.R., & Knickman, J.R. (2015) Jonas and Kovner’s Health Care Delivery in the United

States. (11th ed.). New York, NY: Springer Publishing

Budrys, G. (2012) Our unsystematic health care system. Rowman & Littlefield: Lanham, MD.

Koch, D.D. (2017) Is the HIPAA Security Rule Enough to Protect Electronic Personal Health

Information (PHI) in the Cyber Age? Journal of Healthcare Finance, 43, 3. Retrieved

from: http://healthfinancejournal.com/~junland/index.php/johcf/article/view/67/69

Hsuan, C., Horwitz, J. R., Ponce, N.A., Hsia, R.Y. & Needleman, J. (2017) Complying with the

Emergency Medical Treatment and Labor Act (EMTALA): Challenges and solutions.

American Society for Healthcare Risk Management, 37(3): 31-41.

Meyer, H. (2016) Boom in free-standing emergency centers raises questions about regulation.

Modern Healthcare, October 4, 2016. Retrieved from:

http://www.modernhealthcare.com/article/20161004/NEWS/161009975

The Joint Commission. (2017). Sentinel Events. Comprehensive Accreditation Manual for

Hospitals: CAMH Update 1. Retrieved from:

https://www.jointcommission.org/assets/1/6/CAMH_2012_Update2_24_SE.pdf

Dudzinski, D. M., Hebert, P. C., Foglia, M. B., & Gallagher, T. H. (2010). The disclosure

dilemma – large-scale adverse events. The New England Journal of Medicine, 363(10),

978-986.

Studdert, D. M., Mello, M. M., & Brennan, T. A. (2004). Medical malpractice. The New England

Journal of Medicine, 350(3), 283-292.

Cox, C. & sawyer, B. (2018) How does health spending in the U.S. compare to other countries?

Peterson-Kaiser Health System Tracker, February 13, 2018. Retrieved from:

HPHA 5310 FINAL PAPER 13

https://www.healthsystemtracker.org/chart-collection/health-spending-u-s-compare-

countries/#item-start

National Conference of State Legislatures. (2010) Combating Health Care Fraud and Abuse.

Health Cost Containment and Efficiencies NCSL Briefs for State Legislators, September

2010, No. 11. Retrieved from: http://www.ncsl.org/portals/1/documents/health/Fraud-

2010.pdf