Hostname: page-component-586b7cd67f-t8hqh Total loading time: 0 Render date: 2024-11-25T08:59:38.907Z Has data issue: false hasContentIssue false
  • English
  • Français

The Ethical Health Lawyer: Loopholes: Opportunity, Responsibility, or Liability?

Published online by Cambridge University Press:  01 January 2021

Elizabeth A. Weeks
Get access Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
JLME Column
Information
Journal of Law, Medicine & Ethics , Volume 35 , Issue 2 , Summer 2007 , pp. 320 - 324
Copyright
Copyright © American Society of Law, Medicine and Ethics 2007

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

The Ethical Health Lawyer is edited by Joan H. Krause and Richard S. Saver. Joan H. Krause is the George Butler Research Professor at the University of Houston Law Center and Co-Director of the University of Houston Health Law & Policy Institute. Richard S. Saver is Associate Professor of Law at the University of Houston Health Law & Policy Institute. ([email protected])

References

Smith, A., The Wealth of Nations, Cannan, E., ed. (New York: The Modern Library, 2000): Book IV, chapter II, at 484–85.Google Scholar
Manne, H. G., “Milton Friedman Was Right,” Wall Street Journal, November 24, 2006, at A12.Google Scholar
See Langevoort, D. C., “Resetting the Corporate Thermostat: Lessons from the Recent Financial Scandals about Self-Deception, Deceiving Others and the Design of Internal Controls,” Georgetown Law Journal 93, no. 1 (2004): 285–317, at 288. (“[I]nvoking psychological traits makes the orthodox corporate scholars queasy for a variety of well-mooted reasons, including their contingent, soft, hard-to-model properties and the economists' natural suspicion that cognitive weaknesses are weeded out in the crucible of corporate competition and thus trivial.”)Google Scholar
See Calabresi, G. and Bobbitt, P., Tragic Choices (New York: W.W. Norton & Co. Inc., 1978): at 33 (describing pure market as presenting “the wrenching spectacle of a rich man and a poor man bidding against each other for life”).Google Scholar
Sarbanes-Oxley Act of 2002, Pub. L. No. 107–204, 116 Stat. 745 (codified in scattered sections of 11, 15, 18, 28, and 29 U.S.C.); see generally Ribstein, L. E., “Market vs. Regulatory Responses to Corporate Fraud: A Critique of the Sarbanes-Oxley Act of 2002,” Journal of Corporation Law 28, no. 1 (2002): 1–67; Note, “The Good, the Bad, and Their Corporate Codes of Ethics: Enron, Sarbanes-Oxley, and the Problems with Legislating Good Behavior,” Harvard Law Review 116, no. 7 (2003): 2123-2141.Google Scholar
See Manne, , supra note 2.Google Scholar
See Rosenblatt, R. E. et al., Law and the American Health Care System (New York: Foundation Press, 1997): at 486–87 (quoting excerpt from Anders, G., “A Plan to Cut Back on Medicare Expenses Goes Awry; Costs Soar: Hospitals Rush to Remodel to Offer Subacute Care – And Get Paid Twice,” Wall Street Journal, October 3, 1996, at A1).Google Scholar
Stephenson v. Shalala, 87 F.3d 350 (9th Cir. 1996) (included in Rosenblatt, supra note 7, at 487–94); see 42 U.S.C. § 1395cc(a)(2)(A)(ii) (1995) (beneficiary payment); 42 U.S.C. § 1395l(a)(2)(B)(i) (1995) (government payment).Google Scholar
See Langevoort, supra note 3, at 303 (suggesting that Machiavellian leaders are “adept at rationalization: Convincing himself as well as others that what is self-serving is also right” and that “[t]his sort of ethical plasticity…makes it much easier to win successive rounds over both the ethically stout and the ethically void”).Google Scholar
Weeks, E. A., “Gauging the Cost of Loopholes: Health Care Pricing and Medicare Regulation in the Post-Enron Era,” Wake Forest Law Review 40, no. 4 (2005): 1215–86.Google Scholar
See id., at notes 174–84 and accompanying text (citing Federal Register and other agency statements, acknowledging but declining to close outlier loophole).Google Scholar
Id., at 1253–55 (describing outlier initiative).Google Scholar
42 U.S.C. § 1395ww(d)(5)(A) (2000); 42 C.F.R. § 412.84 (2000).Google Scholar
Rundle, R. L., “Tenet to Pay $725 Million to Settle Medicare Case,” Wall Street Journal, June 29, 2006, at A3; Kocieniewski, D., “Hospitals Grew with Medicare Paying the Way,” New York Times, August 20, 2006, at 1, 23 (describing $265 settlement by non-profit Saint Barnabas Health Care System for “systematically inflating their bills”).Google Scholar
Vogt, K., “Suit Claims Unnecessary Surgeries at Tenet,” American Medical News, May 19, 2003 (quoting opposing counsel's comment), available at <http://www.ama-assn.org/amednews/2003/05/19/bisc0519.htm> (last visited March 15, 2007). (last visited March 15, 2007).' href=https://scholar.google.com/scholar?q=Vogt,+K.,+“Suit+Claims+Unnecessary+Surgeries+at+Tenet,”+American+Medical+News,+May+19,+2003+(quoting+opposing+counsel's+comment),+available+at++(last+visited+March+15,+2007).>Google Scholar
42 U.S.C. § 1395 (Supp. IV 2000) (prohibiting government from “exercis[ing] any supervision or control over the administration or operation of any institution,” which arguably includes billing practices).Google Scholar
Armstrong, D., “How Some Doctors Turn a $90 Profit from a $17 Test; Physician Groups Add Markup to Work Done by Others Despite Ethical Concerns; Administrative Costs Cited,” Wall Street Journal, September 30, 2005, at A1.Google Scholar
42 C.F.R. § 424.80(b)(2) & (d) (2007) (setting forth contractual arrangement exception to Medicare ban on reassignment of supplier claims).Google Scholar
See Medicare Program, Revisions to Payment Policies, 71 Fed. Reg. 69624 (December 1, 2006) (declining to make changes to rule, but stating that issue would be studied and changes would be made “in the near future”).Google Scholar
See 42 U.S.C. § 1395nn (Supp. IV. 2000).Google Scholar
See 42 U.S.C. § 1320a – 7b(b) (Supp. IV. 2000).Google Scholar
See 31 U.S.C. § 3729(a)(1) (Supp. IV. 2000).Google Scholar
See Armstrong, supra note 17, at A8.Google Scholar
Weil, J., “Nine Are Charged in KPMG Case on Tax Shelters,” Wall Street Journal, August 30, 2005, at C1.Google Scholar
Id., at C4.Google Scholar
The Massachusetts Plan and the Future of Universal Coverage, papers presented at the Kansas Law Review Annual Symposium, Lawrence, Kansas, November 10, 2006 (papers to be published in Kansas Law Review, no. 4 [2007]).Google Scholar
An Act Providing Access to Affordable, Quality, Accountable Health Care, 2006 Massachusetts Acts, Chapter 58, Section 47.Google Scholar
See Governor's Health Care Proposal <http://gov.ca.gov/pdf/press/Governors_HC_Proposal.pdf> (last visited March 21, 2007); see also Arthurs, S. W., “Health Plan Brings Praise, Concerns,” Eureka Times-Standard (Eureka, CA), January 10, 2007, available at <http://times-standard.com/local/ci_4983976> (last visited March 15, 2007); “Arnold's Health Plan to Stir Debate,” Washington Times, January 10, 2007, available at <http://washingtontimes.com/national/20070109-115721-9479r.htm> (last visited March 15, 2007).Google Scholar