Health Law Ticker : California Lawyers & Attorneys for Regulatory, Transactional & Litigation Representation for Healthcare Professionals in the US

Immediately after Congress passed the health care reform bill, the Patient Protection and Affordable Care Act (PPACA), Virginia enacted its own countermeasure, called the Virginia Health  Care Freedom Act; and its Republican Attorney General then brought suit to enjoin the Federal government's performance of section 1501 of the PPACA, which requires individuals to pay a "penalty" along with their taxes if they do not purchase health insurance.  Virginia claims that this provision is beyond the power of the Federal government to enforce and also contradicts Virginia's own newly enacted law. 

The Secretary of Health and Human Services moved to dismiss this complaint for a variety of reasons, many extremely technical and not notable from the general health reform perspective.  What is important here is that Congress based its law on extensive findings concerning the effect on interstate commerce of the manner in which individuals obtain health care.  The Commerce Clause of the Federal Constitution has served, certainly since the New Deal, as the linchpin for economic regulation and control over much of the country's overall activities.  Probably best known of the many cases which have upheld expansive Federal legislation under the Commerce Clause are the cases Wickard v. Filburn (1942), which upheld a fine on a farmer who raised food to feed his own geese,  finding this a violation of market controls during World War II, and Gonzales v. Raich (2005) which upheld  a  Federal prohibition against the growth of marijuana for the grower's home use despite  the express authorization  of that conduct by the  grower's home state.   In the Virginia case, the Federal government argued that everyone must at some point in their life receive health care, and that therefore the regulation of health care economics -- by requiring the purchase of health insurance and assessing a "penalty" on those who fail to do so -- lies well within its powers under the Commerce Clause as interpreted by Wickard, Raich and many other cases.

• Email This
• Print
• Comments
• Trackbacks

Doctors, lawyers, and other professional licensees beware, a recent court of appeal decision creates a low burden of proof for revoking the license of a professional on probation.

A licensed health care provider has a fundamental vested right to her license (Bixby v. Pierno (1971) 4 Cal. 3d 130). Therefore, efforts to deprive her of her license require the licensing authority to prove its case by clear and convincing evidence. (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal. App. 3d 853, 856.) The Ettinger court clearly explained why it was adopting this heightened standard of proof: “It seems only logical to require a higher standard of proof when dealing with revocation or discipline of a professional licensee as opposed to mere termination of state employment.”

But most disciplinary cases settle, and the standards for settlement are well understood and have even been published: so many years of probation depending on the offense; good behavior; law compliance; regular reports; payment of prosecution costs, etc. But the format of a probationary settlement is also cast in stone: the stipulation will recite that the license is revoked but that the revocation is stayed during the term of probation; and if the licensee successfully completes the probation, the charges will then be dismissed. In other words, the provider’s license – physician, dentist, nurse, whoever – is theoretically revoked, but the revocation is not in force.

It will not be surprising that some licensees will continue to have compliance problems while on probation: all persons may have such problems at one time or another; and most often, people will settle their cases by accepting probation because something in their conduct wasn’t quite right. And people who were in trouble once may have a proclivity for more trouble. So, if there is another charge against a licensee already on probation, more discipline can be expected.

But what will be the standard for proving that new violation? Will it be the same requirement of “clear and convincing evidence,” which the courts have held to be necessary because “a fundamental vested right” is in danger of being lost?

• Email This
• Print
• Comments (3)
• Trackbacks