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The law regulates human relationships, both prospectively and retrospectively, in a wide variety of ways. To a large extent, the legal implications of medical practice are generic, in the sense that these apply to patients of all ages. Rules developed to deal with the care of younger adults apply with full force to older persons, whose rights do not diminish just because of advanced chronological age. However, a patient's advanced years may sometimes raise issues demanding particular attention by the involved participants in the professional/patient relationship. This chapter concentrates on several selected aspects in which the law influences the delivery of geriatric services through its impact on the recognition and enforcement of the respective rights and responsibilities of the parties, within the specific dynamics of an older patient/health care provider relationship.

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The U.S. Constitution establishes a federal system of government, under which health care delivery and other matters are regulated at the national (federal), state, and local levels. Under separation of powers principles, such regulation takes the form of constitutional (federal, state, and local) provisions, statutes enacted by elected legislatures, rules or regulations promulgated by executive branch administrative agencies like health or social service departments on the basis of authority conferred on the agency by the legislature via a statute, and common law doctrines created by the courts as a matter of public policy and prior case precedent. These various forms of regulation may impose specific or general duties on parties, may authorize but not require parties to act in specific ways, or may prohibit parties from engaging in particular conduct. Health care regulation may be directed at individual health professionals or at health care facilities, agencies, institutions, and other organizations.

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Regulation of Health Professionals

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One primary mechanism for regulating individual health professionals to assure adequate qualifications and acceptable conduct is licensure, which entails the requirement that an individual satisfy—on both an initial and a continuing basis—certain enumerated standards to be permitted to practice a particular profession. Professional licensure ordinarily occurs at the state level through statutes (such as state Medical Practice Acts or Nursing Practice Acts) and regulations promulgated by a state's licensing body (such as the Medical Board or Nursing Board) to implement the Practice Act. Licensure statutes and regulations limit certain activities to licensed professionals; engaging in those activities without prior state approval (in other words, practicing medicine or nursing without a valid license) subjects the wrongdoer to potential civil fines and even criminal sanctions.

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Many statutory and regulatory requirements or prohibitions imposed on health professionals occur as conditions attached to payment for professional services under government insurance programs, especially Medicare and Medicaid. Professionals who treat patients covered by these government programs must satisfy the positive (e.g., “Thou shalt” maintain adequate patient records) or negative (e.g., “Thou shalt not” engage in self-referral) “strings” placed on the payment of public dollars to receive compensation for services rendered.

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Another significant ...

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