Ohio law considers people who are 18 years of age or older to be capable of giving valid, legally enforceable consent to receive medical treatment. Generally, people under age 18 (minors) must have the consent of a parent or guardian before receiving medical care. However, there are several exceptions to this general rule. For example, emancipated minors and “mature minors” can give consent, and there are also certain statutory exceptions.

Q:       What are “mature minors” and “emancipated minors”?

A:        A “mature minor” is someone over age 15 who can show a health care provider that he or she has enough maturity and understanding to make medical care and treatment decisions without parental consent. On a case-by-case basis, the health care provider uses the same criteria that would be used to determine if an adult is capable of making medical decisions. If the minor is found capable of consenting, the health care provider must give the minor the same informed consent an adult would receive.

            Ohio law does not specifically define “emancipated minor.” However, according to the “common” law that comes from cases decided by judges, a minor who is no longer under the protection and control of parents or guardian is considered emancipated. An emancipated minor would generally include someone under age 18 who is married, is in the armed forces, is self-supporting and is living away from the parent’s home. An emancipated minor usually is considered capable of making medical treatment decisions.

Q:       What are the “statutory exceptions” that allow a minor to give consent for medical treatment?

A:        Without regard to decision-making capacity, a minor may consent:

·       to an examination for the purpose of gathering physical evidence of an alleged sexual offense such as rape;

·       for the diagnosis or treatment, by a licensed physician, of any venereal disease;

·       for the diagnosis or treatment, by a licensed physician, of any condition reasonably believed to be caused by drug abuse, beer or intoxicating liquor;

·       to be given an HIV test for the diagnosis of AIDS or an AIDS-related condition;

·       to donate blood to a nonprofit voluntary program (if at least 17 years old);

·       to receive mental health treatment (if at least 14 years old) for a limited number of sessions or outpatient services, except for the use of medication;

·       to receive an abortion if the minor has applied to the local juvenile court and the court finds “good cause” to bypass parental notification.

Q:       What if I cannot be reached when my child needs medical help? 

A:        Healthcare providers generally must provide emergency medical treatment to preserve life and to prevent serious impairment to the health of any individual, including a minor. If the health care provider cannot reach you within the time available to preserve your child’s life or prevent serious impairment, the emergency takes precedence over the requirement to get your consent. If the situation is not life-threatening, however, and your child does not fit one of the exceptions listed above, the health care provider cannot legally treat your child until you, the child’s other parent or a legal guardian has given consent. 

Q:       Can I authorize medical treatment for my child if I know I will be away for a while? 

A:        Yes. If you know you are to be away, you can give permission, in writing, to another adult (such as a friend or relative) to authorize your child’s medical treatment in your absence.

Q:       Must both parents give consent for our minor child to be treated?

A:        No. Either you or your child’s other parent may give consent, assuming you are not divorced. If you are separated, but not yet divorced, then either parent may provide consent. If you are divorced, but both parents have legal custody (shared parenting), then either parent can sign. If you are divorced, and one parent has legal custody or is the child’s custodial or residential parent, then that parent should give consent. However, if a delay in medical care would be dangerous for your child and all reasonable attempts to reach the custodial or residential parent have failed, then the non-custodial parent can give consent.

This “Law You Can Use” legal information column was provided by the Ohio State Bar Association. It was prepared by attorney Phillip T. Glyptis of Steptoe & Johnson PLLC. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       What is a health care power of attorney?
A:        A health care power of attorney (HCPOA) is a legal document authorizing a person you trust (your “agent”) to make health care decisions with or for you in any health care situation (involving, for example, hospitals, nursing homes, dentists, doctors, pharmacists and EMTs).

Q:       When can my agent make health care decisions?
A:        Depending on the option you choose, your agent can make health care decisions with or for you:

·       with you, beginning immediately and at any time for as long as the HCPOA is in effect;

·       for you, beginning immediately, but ending on a specific date (following surgery, for example, or continuing if, on the end date, you cannot make health care decisions for yourself);

·       for you, but only when you cannot make health care decisions for yourself.

Q:       What if I want to name a different agent?
A:        You can execute a new HCPOA, which automatically revokes the earlier document.

Q:       Will my agent make choices I would want?
A:        Your agent must make decisions consistent with your HCPOA instructions, but it is wise to discuss your wishes with your agent.

Q:       Can my agent make any and all decisions about my health care treatment?
A:        No. For example, your agent cannot:

• order the withdrawal of life-sustaining treatment unless two physicians confirm you are in a terminal condition or permanently unconscious state with no reasonable possibility of making decisions;
• order the withdrawal of artificially or technologically supplied nutrition or hydration unless you are terminally ill or permanently unconscious and two physicians agree that nutrition and hydration will no longer provide comfort or relieve pain;
• order the withdrawal of health care treatment you have previously consented to, unless the treatment is no longer helpful;
• order the withdrawal of treatment given for comfort care or to relieve pain; or
• (if you are pregnant) refuse or withdraw informed consent to health care, if either would end your pregnancy, unless the pregnancy or health care would create a substantial risk to your life or two physicians determine that the fetus would not be born alive.
  
  

Q:       Can my health care power of attorney agent make end-of-life decisions for me?

A:        Yes. Many people use a living will to directly dictate their end-of-life instructions, which removes the burden of end-of-life decisions from your health care power of attorney agent. If, however, you choose to have only a health care power of attorney, you are authorizing your agent to make all health care decisions, including the use or termination of life-support and artificial nutrition and hydration, subject to the restrictions noted above.

Q:       Must I choose a family member to be my health care power of attorney agent?
A:        No. You may appoint any adult you wish, except for your doctor or the administrator of a health care facility in which you are being treated, or any employee of your doctor or a health facility in which you are being treated.
 
Q:       Can I use a health care power of attorney to take care of my mother’s finances?

A:        No. You must use a different (“financial”) power of attorney document to address your mother’s business affairs.

Q:       Can I use a health care power of attorney to nominate a guardian for me, my minor children, or my adult disabled children?

A:        Yes. With a health care power of attorney, you can usually avoid the need for a guardian, but you can nominate a guardian through this document. Your guardian should be someone you trust to handle your person, your estate, or both (and those of your minor or adult disabled children). You may also allow the guardian you name to nominate a successor guardian. 

Q:       Where can I find a health care power of attorney form? Can I draw up my own?
A:        The Ohio State Bar Association has developed standard health care power of attorney and living will forms with Midwest Care Alliance, the Ohio State Medical Association, the Ohio Hospital Association and the Ohio Osteopathic Association. For a copy of these forms, visit www.midwestcarealliance.org or ask your physician or attorney. You do not have to use the standard form, but the standard form is widely recognized, and includes the necessary specific language required by Ohio law.

  

Q:       What do I do after I complete my health care power of attorney?
A:        Make several copies. Keep copies with your personal papers and in your car, and give copies to your agent, family members, your physician and your lawyer.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Lima attorney Michelle Baumeister.  Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       If I have health insurance coverage, what changes can I expect?

A:        The changes made by the Affordable Care Act to health insurance differ depending on the type of insurance coverage you have. If you have individual or small employer group coverage, you will likely see more significant changes than if you have health insurance coverage through a large employer (one with more than 50 workers). 

Q:       I have coverage from a large employer. What changes can I expect?   
A:        In 2014, large group coverage must comply with these rules: (1) plans may not exclude coverage for pre-existing health conditions; (2) out-of-pocket spending by enrollees cannot exceed $6,350 for individual coverage and $12,700 for family coverage; and (3) plans may not impose annual or lifetime limits on the total amount a health plan is required to pay. Most large employers currently provide comprehensive coverage, so you may not see many changes.  

Q:       When do employers have to offer coverage to full-time workers?   
A:        In 2015 (not 2014), employers with more than 50 full time workers must offer coverage to full-time workers. Most large employers already satisfy this requirement, but large employers that don’t currently offer employee health insurance must begin providing coverage or face penalties. Some employers are considering dropping coverage and paying the resulting penalties or keeping employees at part-time status to avoid providing them with coverage. However, most employees are not likely to see significant changes in their health care coverage.   

Q:       If I have coverage from a small employer, what changes can I expect?
A:        Small employers (with 50 or fewer workers) may see significant changes to health benefits in 2014. Some requirements include: (1) no pre-existing condition exclusions; (2) coverage of essential health benefits that include coverage in 10 categories such as physician, hospital, prescription drug, mental health, maternity, preventive, wellness and pediatric services; (3) coverage with copays and deductibles that fall into “metal tiers” (bronze, silver, gold and platinum plans); and (4) no annual or lifetime limits. Also, the way insurers determine premium rates will change. Under the new law, insurers cannot consider the health condition of employees, and the age of employees will be only a limited factor. Therefore, small employers with healthy, younger workers are likely to pay more for insurance while small employers with older and less healthy workers likely will pay less. On average, the cost of small group coverage is expected to increase.

Q:       What if I bought my own individual health insurance policy?

A:        Ohio citizens with individual policies can expect to see many of the same changes as those covered by a small group employer, including: (1) no preexisting condition exclusions; (2) coverage of essential health benefits; (3) copay and deductibles that fall into metal tiers; and (4) no lifetime or annual limits. Your insurer will no longer consider your health status in setting your premium rate and your age will be a limited factor. Also, if you earn less than 400 percent of the federal poverty level ($45,960 for an individual; $94,200 for a family of four), you may get low-income subsidies to buy coverage through the federal government’s Health Insurance Marketplace (HealthCare.gov).  Generally, premium rates for people who are young, healthy and not eligible for subsidies may go up, while premium rates for older individuals, people with serious health conditions and lower-income families may go down. Whether premiums will go up on down for you will depend on the circumstances. 

Q:       If I don’t have coverage now, how will I be affected?

A:        Ohio recently announced it will expand Medicaid eligibility beginning on January 1, 2014 for Ohio citizens with incomes at or below 138 percent of the federal poverty level ($15,856 for an individual and $31,119 for a family of four). If your income level qualifies you, you can get Medicaid coverage without having to pay a premium. If your income is low, but not low enough to qualify you for Medicaid coverage, insurance companies can no longer deny you coverage, and the federal government will provide you with subsidies to buy affordable coverage if your income is at least 100 percent,  (and no higher than 400 percent, of the federal poverty level.

            If, however, you can afford health insurance, but decide not to buy it, you likely will have to pay a penalty on your tax return. For 2014, the penalty is $95 per adult, or 1percent of income, whichever is higher. The penalty for failure to insure children is $47.50 per child (up to $285 per family) or 1 percent of the family income, whichever is greater.

            Penalty amounts go up in 2015 to $325 per adult and $162.50 per child (up to $975 per family or 2 percent of family income, whichever is greater). In 2016 and beyond, the penalty is $695 per adult and $347 per child (up to 2.5 percent of family income, whichever is greater).

 

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Douglas L. Anderson, an attorney in the Columbus office of Bailey Cavalieri LLC. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) generally provides that certain qualified beneficiaries who lose coverage under an employer-sponsored health plan may elect to continue coverage under the plan in certain situations. COBRA applies only to employers with 20 or more employees. If an employer has fewer than 20 employees, those employees may have continuation coverage rights under state continuation coverage law (sometimes referred to as “mini-COBRA”) rather than COBRA. This article provides an overview of Ohio law on health plan continuation coverage under Ohio’s mini-COBRA provisions.

Q:       My employer has fewer than 20 employees and my employment has just been terminated. Am I eligible for health coverage under the Ohio continuation law?

A:                    To be eligible under the Ohio continuation law, you must have been:

1)    continuously insured under a group policy during the three-month period before your employment was terminated;

2)    involuntarily terminated for reasons other than gross misconduct; and

3)    not covered or eligible for coverage under Medicare, or under other group coverage.                    

You should check the terms of your former employer’s group insurance coverage to determine what continuation benefits you may be entitled to receive.

Q:       How long might my coverage last under the state continuation law?

A:        Your coverage may continue for up to 12 months.

Q:       What benefits may be continued under the state continuation law?  

A:        The continuation coverage requirement covers hospital, surgical and major medical benefits. In addition, continuation coverage must include prescription drugs if this coverage is included in the group coverage. Continuation need not cover dental or vision care.

Q:       How do I go about electing continuation coverage?

A:        You must apply within the earlier of:

1)    31 days of losing coverage;

2)    10 days from the day your coverage would otherwise end if you received notice of continuation rights before you lost your coverage; or

3)    10 days from the date you received notice about continuation coverage, if you received such notice after you lost your coverage.

Q:       Must employers in Ohio with fewer than 20 employees notify employees of the right to continue coverage at the time they are involuntarily terminated?

A:        Yes. Ohio law requires small employers to notify an employee of the right to state continuation coverage when the employee is notified of the employment termination. This notice must include details of the required monthly payment amount for continuation coverage (including the manner of payment). 

Q:       What if my former employer does not agree that I am eligible for group continuation coverage?

A:        You may contact the Ohio Department of Insurance (ODI) at (800) 686-1526 if you believe the insurance company is not complying with state group continuation coverage rules, or to get more information about state continuation law. Information is also available through www.insurance.ohio.gov (type “COBRA” in the search box).

     

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Jason Rothman and Charles Billington, attorneys in the Cleveland office of the international labor and employment law firm of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

The U.S. Department of Health and Human Services has embarked on an ambitious mandate to require all health care providers receiving federal funds, including Medicare payments, to adopt electronic medical record systems.  This mandate has raised questions for healthcare providers and their patients.

Q:       What is the electronic medical record?

A:        Your electronic medical record (ERM) is the data related to your health care treatment, medications, x-rays, hospitalizations, operations, office visits, prescriptions, insurance payments and all other matters related to the health care delivered by health care providers anywhere in the United States.  This data is stored in a centralized electronic “folder,” and provides you and all your health care providers with information about who treated you, what treatment protocols were used and the results of your treatment, etc.

Q:       How is my EMR created?

A:          Your EMR is composed of one or more electronic files created by computers, electronic devices and software. Your healthcare provider enters your healthcare information and answers questions on a computer screen so the computer software can create and maintain your EMR.  All EMR software is certified to be “interoperable” so it can be read by all the computer systems of all U.S. healthcare providers. 

Q:       What are some advantages of having an EMR?

A:        The EMR allows you and all of your healthcare providers to have access to all of your healthcare information in one place. The goal of this increased availability is to improve diagnoses and patient care, and to provide a more standardized, empirically based treatment plan for your particular health conditions. 

The EMR keeps track of all medications patients take. EMR software can record the effects of prescriptions medications taken with over-the-counter herbal supplements, and can be updated as new drug interactions become known. For these reasons, the EMR should help healthcare providers to avoid prescribing medications that might cause serious complications for their patients.

Also, the EMR includes “follow-up” protocols that should help patients stick to their treatment plans. For example, if a doctor orders an MRI, the EMR system will route the MRI order to support personnel, who will then contact the patient to schedule the MRI.

Q:       What are some challenges associated with EMRs?

A:        Patient privacy and security measures have been built into the EMR software, but because so many people can access your EMR, security is a challenge. 

Accuracy is also a concern. Because the EMR is created, in part, by making selections from drop down menus, etc., some information appearing in the EMR may not have been written by the doctor, but by the software program in response to a checked box or clicked button. This “auto-population” can result in errors, such as the recording of procedures that were never actually done. Removing erroneous data from the EMR can also be difficult. Accuracy of EMR data also affects billing and insurance. The U.S. Department of Health and Human Services is trying to determine whether an increase in charges by health care providers using EMR is the result of fraud or improved accuracy and accountability.

The government is now studying the impact of EMR record accuracy on patient safety. It has been suggested that a new EMR patient safety agency similar to the National Safety Transportation Board that tracks the automobile safety.

Because “interoperability” has not yet been achieved, the various systems may not be able to “talk” to each other. This means that all your information may not be available in a single location to all health care providers.  

Standardization of care is also an issue. The EMR is created, in part, when your doctor chooses from a drop down menu of “best practices” based upon empirical data. The “best practices” are designed to help doctors choose treatment protocols that surveys have shown work best for the largest number of patients, but they also may reduce treatment options for patients who fall outside survey parameters.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Donald A. Wochna, chief legal officer for Vestige Digital Investigations. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       What, exactly, is Medicaid fraud?

A:        Medicaid fraud involves making false or misleading statements, or causing such statements to be made, in order to get Medicaid reimbursement. Medicaid fraud may include such acts as billing for, but not providing, services or goods, and providing medically unnecessary services. Medicaid fraud schemes also may involve billing for a more expensive product or service than was actually delivered, billing separately for services that should be billed together, and billing twice for the same product or service. It is also illegal to: dispense generic medications while billing for more expensive brand-name drugs; submit false information on Medicaid cost reports; charge co-pays; and provide kickbacks or rebates for goods or services for which Medicaid reimbursement will be sought. Managed care organizations cannot deny service to eligible Medicaid recipients or fail to provide the level of service medically necessary or required.

Q:       What are the penalties for Medicaid fraud?

A:        Medicaid fraud is a crime. If the fraud involves sums greater than $150,000, it is a third-degree felony. Fraud involving sums of more than $7,500 but less than $150,000 is a fourth-degree felony. Fraud involving sums of more than $1,000 but less than $7,500 is a fifth-degree felony. Penalties may include fines, community control sanctions and, in some cases, prison. Individuals and entities convicted of Medicaid fraud and related crimes are required to be excluded from participation in all federal health care programs.

Q:       What does the Ohio Attorney General’s Office do about Medicaid fraud?

A:        Federal law authorizes Medicaid Fraud Control Units across the country to investigate allegations of fraud and abuse involving the Medicaid program. Forty-nine states and the District of Columbia have such units, and each is subject to annual recertification by the U.S. Department of Health and Human Services. In 1978, the Ohio General Assembly authorized the Attorney General to create and oversee the Ohio Medicaid Fraud Control Unit, and Ohio law grants this unit original criminal jurisdiction to investigate and prosecute Medicaid fraud statewide. The unit’s staff of more than 60 includes special agents, ana­lysts, nurses and attorneys.  

Q:       What can I do if I suspect a health care provider of Medicaid fraud?

A:        If you know about any instances of Medicaid fraud, you can contact the Ohio Attorney General’s Office at 614/466-0722 or 800-282-0515, send a fax to 614-644-9973, or visit www.OhioAttorneyGeneral.gov/ReportMedicaidFraud.

This “Law You Can Use” column was provided by the Ohio Attorney General’s Office and prepared by the Ohio State Bar Association. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Used appropriately and in professional contexts, social media such as Facebook and Twitter can provide useful vehicles for communicating general healthcare information to the public, promoting new hospital/provider facilities and programs, building professional connections and providing an outlet to share experiences. Personal uses of social media, however, can have serious legal consequences, especially if patient-specific information is shared.

Q:        What are some improper uses of social media by healthcare providers?

A:        A physician, on his blog, referring to a patient by name and describing details of her care; a medical student filming a surgery with the patient’s face clearly visible and posting the video on YouTube; a nurse posting on her Facebook page that she had treated a “cop killer” the day following many news accounts naming the accused shooter and the hospital where he was treated; and a hospital admissions clerk, using her personal Smartphone, and after work hours, posting on her Facebook page the name of a celebrity that came to the hospital where she worked – and the reason for his admission.

Q:        Do such “posts” break any laws?

A:        The federal Health Insurance Portability and Accountability Act (“HIPAA”) privacy regulations forbid healthcare facilities (and their employees) from using or disclosing patient information without authorization, unless the use is for a legitimate purpose, such as patient treatment. Under HIPAA, patient information in all forms—electronic, “paper,” and verbal—is protected. Healthcare workers cannot talk about their patients outside of work, so, unless a patient gives written permission to disclose her patient information, a posting on Facebook, Twitter, YouTube or other form of social media likely is a HIPAA violation. It could also give rise to a host of claims under Ohio common law (e.g. invasion of privacy, intentional infliction of emotional distress, etc.)

Q:        What makes social media sharing a particular HIPAA risk?

A:        Because social media is informal, fast-paced, and conversational in nature, the risk of a HIPAA violation may not be appreciated. Healthcare workers who would never dream of handing out a paper document or even an e-mail with patient information may, without thinking, reveal too much in a Facebook post.

Q:        Might a hospital be responsible for a social media HIPAA violation, even if unaware of the post? 

A:        Potentially, yes.  HIPAA rules require hospitals and other “covered entities” to implement detailed policies and procedures and train their workforce members about HIPAA, including employees’ personal obligations to protect the privacy of patient information.  For HIPAA violations, fines can be imposed: ranging from $100 for a single, unintentional disclosure of one patient’s information up to $1.5 million for “willfully negligent” violations of HIPAA involving multiple disclosures or multiple patients. For an intentional HIPAA violation, the government can bring a criminal prosecution of up to 10 years in prison. Not every HIPAA violation leads to government penalties, but if the Government believes that employees’ improper social media posts reflect a facility’s general laxity about HIPAA compliance, the facility is more likely to be required to undertake extensive corrective action and pay hefty fines. 

Q:        Can an individual be penalized for a HIPAA violation for sharing patient information with Facebook “friends”?

A:        Yes. Individuals, as well as facilities, can be prosecuted criminally for HIPAA violations. Also, HIPAA specifically requires the employing healthcare facility to impose disciplinary measures—up to and including termination—for HIPAA violations.  An individual who is a physician, nurse, social worker or other licensed professional could also face discipline from the state’s licensing board for breach of patient confidentiality or unprofessional conduct. 

Q:        What steps can healthcare providers take to minimize HIPAA liability risks associated with social media?

A:        Providers should have comprehensive HIPAA privacy policies and procedures that are regularly reviewed.  Given the special risks associated with social media, providers should consider including a specific policy (and workforce education) on the subject. 

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Cincinnati attorney Sara Simrall Rorer, a partner in the Health and Life Sciences Practice Group of Taft Stettinius & Hollister, LLP. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.