No CrossRef data available.
Article contents
Recent Developments in Health Law
Published online by Cambridge University Press: 01 January 2021
Extract
In American Dental Association v. Martin, the United States Court of Appeals for the Seventh Circuit reviewed a challenge to a rule of the Occupational Safety and Health Administration (OSHA). In December, 1991, OSHA passed a standard to protect health care workers from viruses transmitted by blood—bloodborne pathogens—including the hepatitis B virus (HBV) and the human immunodeficiency virus, the virus known to cause AIDS. Three health care organizations, whose members are dentists, medical personnel firms, and home health employers, petitioned the court to review OSHA's rule.
The Occupational Safety and Health Act was passed to assure employees that they would have as safe and healthy a working environment as feasible. Congress sought to ensure this by vesting the Secretary of Labor for Occupational Safety and Health with the authority to promulgate mandatory safety and health standards. In promulgating standards concerning toxic materials or harmful physical agents, the secretary sets rules that most adequately assure that an employee will not suffer a material impairment of health or functional capacity while performing work-related duties.
- Type
- Recent Developments in Health Law
- Information
- Copyright
- Copyright © American Society of Law, Medicine and Ethics 1994
References
References
984 F.2d 823 (7th Cir. 1993).Google Scholar
29 U.S.C. § 3(8).Google Scholar
29 U.S.C. § 6(b)(5).Google Scholar
Centers for Disease Control, “Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures,” Morbidity & Mortality Wkly. Rep., 1 (1991).Google Scholar
29 U.S.C. § 5(a)(1).Google Scholar
Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317, 321 (5th Cir. 1984).Google Scholar
National Realty & Construction Co. v. OSHRC, 489 F.2d 1252 (D.C. Cir. 1973).Google Scholar
56 Fed. Reg. 64007 (1991).Google Scholar
448 U.S. 607 (1980).Google Scholar
Id. at 644.Google Scholar
56 Fed. Reg. 64034 (1991).Google Scholar
56 Fed. Reg. 64036 (1991).Google Scholar
American Dental Association v. Martin, 984 F.2d at 829.Google Scholar
Id. at 826.Google Scholar
Id. at 827.Google Scholar
Id. at 828.Google Scholar
Id. at 829.Google Scholar
Id. at 825.Google Scholar
Id. at 826.Google Scholar
References
U.S. Department of Justice & the Federal Trade Commission, Statements of Antitrust Enforcement Policy in the Health Care Area (1993) [hereinafter, Antitrust Enforcement Policy].Google Scholar
Roberts, Alicia W., “FTC and DOJ Release Antitrust Guide in Tandem with Reform,” Managed Care Outlook, Sept. 24, 1993.Google Scholar
Antitrust Enforcement Policy, supra note 1, at 1.Google Scholar
American Health Security Act of 1993, H.R. 1200, 103d Cong., 2d Sess. (1993); see also Pear, Robert, “Clinton's Health Plan: The Overview,” The New York Times, Oct. 28, 1993, at A1.Google Scholar
See Bloch, Robert E., “The Clinton Health Plan,” National Law Journal, Oct. 11, 1993, at S2; see also Jacobs, Michael S., “Recent Developments in Antitrust Law and Their Implications for the Clinton Health Care Plan,” J. Law, Med. & Ethics, 21 (1993): 163.Google Scholar
See, generally, Bloch, , supra note 5, discussing in detail the antitrust issues created by the structure of the Clinton plan.Google Scholar
Brodley, Joseph F., “Joint Ventures and Antitrust Policy,” Harv. L. Rev., 95 (1982): 1521, 1530–34 (describing anticompetitive risks—collusion, loss of potential competition, and market exclusion—of joint ventures). See, generally, Roble, Daniel T., Mason, John H., “The Legal Aspects of Health Care Joint Ventures,” Duq. L. Rev., 24 (1986): 455.CrossRefGoogle Scholar
Cf. American Health Security Act of 1993, supra note 4, calling for repeal of McCarren-Ferguson Act exemption from antitrust laws for health insurers.Google Scholar
Antitrust Enforcement Policy, supra note 1, at 1.Google Scholar
Id. at 4–5.Google Scholar
Id. at 8.Google Scholar
Id. at 9, note 3; see also id. (defining “costs”); id. at 10 (describing what information should be considered to determine whether costs may be recovered during this time).Google Scholar
See id. at 11–14 (outlining rule of reason analysis); see also id. at 14–17 (giving examples of joint ventures that are unlikely to evoke antitrust concerns).Google Scholar
Id. at 18.Google Scholar
Id. at 22.Google Scholar
Id. at 26.Google Scholar
Id. at 33. Both exclusive and nonexclusive networks can qualify for safety zone treatment. “An ‘exclusive’ venture significantly restricts the ability of its members to affiliate with other physician network joint ventures and to contract individually with health insurance plans.” Id. at 35. “A ‘non-exclusive’ venture…does not impose any significant explicit or implicit restriction on the ability of its members to affiliate or contract with such other organizations.” Id. at 35–36.Google Scholar
See id. at 35 (giving examples of joint ventures in which members share substantial financial risk).Google Scholar
See id. at 37–39 (outlining rule of reason analysis); see also id. at 39–45 (giving examples of physician joint venture networks that would avoid antitrust scrutiny).Google Scholar
Roberts, , supra note 2.Google Scholar
But see National Health Lawyers Association, American Health Security Act of 1993: Summary Outline and Selected Analysis, 10 (1993) (noting the first zone, regarding hospital mergers, represents a significant departure from traditional hospital merger analysis).Google Scholar
Id. at 9.Google Scholar
Bloch, , supra note 5.Google Scholar
Burda, David, “AMA Slams Antitrust Guidelines,” Modern Healthcare, Oct. 25, 1993, at 4.Google Scholar
Knox, Richard A., “Health Plan Sweetened for Doctors: Late Change Offers Antitrust Exemption,” The Boston Globe, Oct. 30, 1993, at 1.Google Scholar
See Goldfarb v. Virginia State Bar, 421 U.S. 784, 787 (1975) (holding that members of the learned professions, such as physicians, are not exempt from antitrust law).Google Scholar
Antitrust Enforcement Policy, supra note 1, at 3.Google Scholar
Bloch, supra note 5.Google Scholar