Legal and Ethical Aspects of Health Information Management Chapter 1

Law

a system of principles and processes devised by organized society to deal with disputes and problems without resorting to the use of force

statutes

laws written by state and federal governments

Law establishes

certain standards for human behavior

primary source of private law

Decisions of the courts in conflicts between private parties, which may be subsequently modified by statute or regulation

primary source of public law

-written constitutions

- Statutes

- Regulations and Rules

- Decisions from Judicial and Administrative bodies

Private Law (Civil Law)

conflicts between private parties

-doesn't include criminal law

-consists of contract and tort law

Civil Law (Private Law)

part of the law that does not include criminal law

public law

conflicts between the government and private parties. It consists of the body of rules and principles that goven the rights and duties between private parties.

-consists of substantive law and criminal law

Contract law

law concerning an agreement between two or more parties that creates some type of obligation to act (do something) or refrain from acting (not do something) in exchange for some type of consideration

Tort law

encompasses the duties and rights that exist between parties that are independent of a contract

intellectual property

involves the question of legal rights to processes and products of technology, the concrete application of a principle or idea

EHR

The legal rights to the software used in electronic health records arise from intellectual property law.

Substantive Law

Law that defines the specific offenses, the general principles of liability, and the specific punishments.

Criminal Law

A law that defines crimes against the public order. Is a segment of public law. Can be divided into substantive law and procedural law.

felonies - serious crimes that require prision sentences longer than one year

misdemeanors- less serious crimes that have prison sentences shorter than 1 year

Felonies

A serious criminal offense punishable by a prison sentence of more than one year

Procedural Law

Law that establishes the methods or steps of enforcing the rights established by substantive law.

Misdemeanors

a criminal offense, less serious than a felony, punishable by a prison sentence of one year or less

Constitution

The fundamental law of a nation or state that defines how a government will legitimately operate. May be written or unwritten.

breach of contract

the nonperformance of a contractual duty

Legistlative Branch

branch that makes and enacts the laws

-determines the need for new laws and for changes to existing laws

-it is bicameral (consisting of two houses)

-upper house = Senate

-lower house = House of Representative or Assembly

Executive Branch

Branch of government that enforces and administers the laws

-organized on a departmental basis with each department assigned a particular responsibility

Judicial Branch

the branch of government that interprets laws (courts)

Statues

written laws enacted by legislatures

Conflict of laws

an inconsistency between the laws of different states arising from a legal action that involves the territory of more than one jurisdiction

ordiances

laws passed at the local level

Words of authority

Verbs found in statutes, ordinances, rules, and regulations that set forth duties, rights, prohibitions, and responsibilities under law. Examples: shall, must, must not, will, may, may not, should and is entitled to

HHS

Department of Health and Human Services

Federal Register

An official document, published every weekday, that lists the new and proposed regulations of executive departments and regulatory agencies.

Health Care Financing Administration

HCFA previous name of CMS

Common Law

formed when a court, attempting to resolve a dispute, renders a decision

stare decisis

let the decision stand. Applies to all courts within the same geographic area and within the same jurisdiction.

res judicata

Latin phrase meaning "the thing has been decided."

-deals with same people and same situation

pleadings

Statements made by the plaintiff and the defendant in a lawsuit that detail the facts, charges, and defenses involved in the litigation. The complaint and answer are part of the pleadings.

Separation of Powers

Constitutional division of powers among the legislative, executive, and judicial branches, with the legislative branch making law, the executive applying and enforcing the law, and the judiciary interpreting the law

ARRA

American Recovery and Reinvestment Act of 2009. Require the executive branch to report to congress on compliance with the act.

Elements of a Contract

meeting of the mind, offer, acceptance, consideration

deeming authority

Compliance with the requirements and standards of either or both accrediting organizations may substitute for compliance with the Medicare Conditions of Participation for Hospitals published by the CMS.

government health care regulations

-plays a big part in health care

-one of the most heavily regulated industries

health care field is impacted by

-government regulation

-lawsuits affecting health care providers

Ligation holds on E-Discovery

Once a party anticipates litigation, it must suspend document destruction policy and put place a litigation hold to preserve relevant documents.

Arises whether or not requested by other party.

Negative inference if records destroyed (jury can assume the worst)

HIPAA (Health Insurance Portability and Accountability Act)

law enacted by Congress that gave authority to DHHS to work out its implementation

Laws

sets society's

1. standards for behavior

2. Mechanisms to resolve conflict and enforce behavior

Two general categories

Public law

private law

Public law

law dealing with the relationship between government and individuals or relationship between society and individuals

private law

-law that involves suits between private individuals or groups

-Does not include criminal law

-made up of contract law and tort law

elements of a contract

1. offer

2. acceptance

3. consideration

Types of contracts

written and oral

breach

a failure to perform some promised act or obligation or fulfill the contract terms

tort law

-Law that deals with disputes about rights and duties. Claim is that harm was caused

-civil law not involving contracts

-example: medical malpractice lawsuits, defamation and invasion of privacy

types of private law

tort and contract law

types public law

constitutional, administrative, criminal

procedural law

procedural steps to be followed to proLaw that establishes the methods of enforcing the rights established by substantive law.

laws originate from

1. Constitution

2. Courts (common laws)

3. Administrative decisions and regulations

4. Statute (written law)

US Constitution

-Principles: life, liberty, pursuit of happiness

-Three branches of government

-Bill of Rights (individual rights)

Executive branch

-enforces the laws

-creates regulations

Bill of Rights

provides for individual rights, freedoms and protections

-religion, speech, the press, and to assemble

-from unreasonable search and seizure

Judicial branch

Interprets the laws

quasi-judicial powers

granted by legislatures

-Authority to

--make decisions about the agency related matter

--provide hearings for parties who disputes decisions

--establish appeals processes

dissatisified party may seek judicial review

lower courts are bound

to decisions of higher courts

Congress

Senate and House of Representatives

Legislative branch is

bicameral - consists of two houses

-Upper house - senate

-Lower house - house of represenatives

Chief executive roles

-issues orders

-approve or veto bills from legistature

constitional provisions, statues and regulations

these laws govern society by requiring the government and private parties to follow certain courses of action

legistative proposals

are called bills which move through legislature by means of a committee system

Chief Executive

The role of the president as head of the executive branch of the government.

-signs bills into law or vetos bills

-can also issue executive orders

judical branch

the branch of government, including the fedral court system, that interprets the nation's laws