Law Commons^™

Special Topics In Preventing And Responding To Prison Rape: Medical And Mental Healthcare, Community Corrections Settings And Oversight, Brenda V. Smith, Theodis Beck, Michele Deitch

Presentations

Hearing transcripts regarding medical and mental health care, community corrections, and oversight related to the prevention of and response to inmate sexual assault. Points of entry are: full transcript; opening remarks; personal accounts; response and treatment—caring for sexual assault victims in correctional and detention facilities; confidentiality and reporting—medical ethics, victim safety, and facility security; sexual violence and community corrections—the special considerations of community-based settings; and best practices and emerging trends—the community corrections field’s response to the Prison Rape Elimination Act. This article contains testimony specifically about the State of North Carolina.

Do Citizens Care About Federalism? An Experimental Test, Robert Mikos, Cindy D. Kam

Vanderbilt Law School Faculty Publications

The ongoing debate over the political safeguards of federalism has essentially ignored the role that citizens might play in restraining federal power. Scholars have assumed that citizens care only about policy outcomes and will invariably support congressional legislation that satisfies their substantive policy preferences, no matter the cost to state powers. Scholars thus typically turn to institutions-the courts or institutional features of the political process-to cabin congressional authority. We argue that ignoring citizens is a mistake. We propose a new theory of the political safeguards of federalism in which citizens help to safeguard state authority. We also test our theory …

Face To Face With “It”: And Other Neglected Contexts Of Health Privacy, Anita L. Allen

All Faculty Scholarship

“Illness has recently emerged from the obscurity of medical treatises and private diaries to acquire something like celebrity status,” Professor David Morris astutely observes. Great plagues and epidemics throughout history have won notoriety as collective disasters; and the Western world has made curiosities of an occasional “Elephant Man,” “Wild Boy,” or pair of enterprising “Siamese Twins.” People now reveal their illnesses and medical procedures in conversation, at work and on the internet. This paper explores the reasons why, despite the celebrity of disease and a new openness about health problems, privacy and confidentiality are still values in medicine.

Mid-Atlantic Ethics Committee Newsletter, Fall 2007

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.

Medical Judgment In Court And In Congress - Abortion, Refusing Treatment, And Drug Regulation, George J. Annas

Faculty Scholarship

Over the past four decades, the courts and Congress have consistently granted almost unqualified deference to physicians (and medical ethics), at least for treatment decisions made in the context of a consensual physician-patient relationship. The primary exception to this harmonious deference is the 2007 abortion decision of Gonzales v. Carhart, 127 S. Ct. 1610 (2007), and it is reasonable to review our continuing and seemingly intractable legal debate over abortion and the physician's role in it to determine if it could erode judicial and congressional deference to medical judgment in other areas of medical practice and medical ethics.

Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg

Faculty Scholarship

The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …

Who Is To Shame? Narratives Of Neonaticide, Susan Ayres

Faculty Scholarship

In seventeenth-century England, single women who killed their newborns were believed to have acted to hide their shame. They were prosecuted under the 1624 Concealment Law and punished by death. This harsh response eventually evolved into a more humane and sympathetic one, as shown by the increasing number of acquittals in the late eighteenth century and by the sharp drop of prosecutions in the late nineteenth century. Then, in 1922, England passed the Infanticide Act, amended in 1938, which provided that a mother who killed her child would be prosecuted for manslaughter, not murder. Today, the great majority of women …

The New Massachusetts Health Law: Preemption And Experimentation, Edward A. Zelinsky

Articles

The Employee Retirement Income Security Act of 1974 (ERISA) preempts major features of the new Massachusetts health law. Although regrettable, this conclusion is mandated by ERISA's statutory terminology and the controlling case law. Other states, in fashioning their health care policies, are looking at elements of the new Massachusetts law. Just as ERISA preempts the individual and business contribution mandates of the Massachusetts statute, ERISA will preempt any similar provisions adopted by other states.

Because state experimentation with health care is particularly desirable today, Congress should, at a minimum, amend ERISA to validate the new Massachusetts health law. More comprehensively, …

Children's Behavioral Health Services In Baltimore: Walking The Continuum, Jennifer Ryan

National Health Policy Forum

This site visit explored the range of behavioral health services available for children in the city of Baltimore and in the state more broadly. Like many states, the policy community in Maryland has been working hard to meet the challenges of providing an effective continuum of care in the context of complex financing incentives and an overburdened educational and public health care system. Several promising practices have emerged, including the Wraparound practice model that offers individualized, comprehensive services and natural supports to achieve a positive set of outcomes for the child and family. The wraparound model incorporates both traditional services …

Medicare Advantage Payment Policy, Mark Merlis

National Health Policy Forum

Medicare Advantage (MA) plans have become a source of supplemental benefits for many Medicare beneficiaries. In many cases, MA plans are able to finance these extra benefits only because Medicare is paying them more than it would have spent to cover the same beneficiaries on a fee-for-service basis. As Congress considers curbing MA plan payments, this background paper explains how MA plans are paid and reviews recent trends in plan participation and enrollment. It then considers key issues raised by proposals to change the payment system.

Climate Change, Human Health, And The Post-Cautionary Principle, Lisa Heinzerling

O'Neill Institute Papers

In this Article, I suggest two different but related ways of reframing the public discourse on climate change. First, I propose that we move further in the direction of characterizing climate change as a public health threat and not only as an environmental threat. Second, I argue that we should stop thinking of responses to climate change in terms of the precautionary principle, which counsels action even in the absence of scientific consensus about a threat. We should speak instead in terms of a ?post-cautionary? principle for a post-cautionary world, in which some very bad effects of climate change are …

Inadmissible, Eh?, Jocelyn Downie, Ronalda Murphy

Articles, Book Chapters, & Popular Press

In this commentary, we respond to Stacey Tovino's invitation to reflect further on specific legal issues she raises in relation to functional magnetic resonance imaging (fMRI) and the law (Tovino 2007). Specifically, we take up the issue of evidence law. We do this from a Canadian perspective because, unlike in the United States, this topic has not "been debated for almost 10 years" here (Tovino 2007, 44).

Physician Profiling: Can Medicare Paint An Accurate Picture?, Laura A. Dummit

National Health Policy Forum

Physician profiling, that is, the comparison of the health care services used by a physician’s patients to average service use or another benchmark, has been proposed as a way to improve Medicare. It has been used by private health plans and physician groups to identify both efficient practice patterns and the physicians who practice efficiently. The Medicare Payment Advisory Commission (MedPAC) and the Government Accountability Office (GAO) have recommended that Medicare adopt physician profiling to slow spending growth and improve efficiency. Recent legislation would mandate that Medicare employ profiling. This issue brief reviews MedPAC and GAO’s analyses of profiling, concerns …

The Difficult Case Of Direct-To-Consumer Drug Advertising, David C. Vladeck

O'Neill Institute Papers

This article will appear in a symposium to pay tribute to Professor Steven H. Shiffrin, one of the leading First Amendment theorists of our time. The author was asked to focus on Professor Shiffrin’s contribution to the development of the commercial speech doctrine. To reflect on the wisdom of Professor Shiffrin’s refusal to rely on general First Amendment theories, the article focuses on the difficult First Amendment problem of regulating direct-to-consumer (DTC) advertising of prescription drugs. In his famous dissent in Virginia Pharmacy Board, then-Justice Rehnquist forecast that, as a consequence of the Court’s ruling, drug companies would soon advertise …

A Critical Examination Of The Fda’S Efforts To Preempt Failure-To-Warn Claims, David A. Kessler, David C. Vladeck

O'Neill Institute Papers

This article explores the legality and wisdom of the FDA’s effort to persuade courts to find most failure-to-warn claims preempted. The article first analyzes the FDA’s justifications for reversing its long-held views to the contrary and explains why the FDA’s position cannot be reconciled with its governing statute. The article then examines why the FDA’s position, if ultimately adopted by the courts, would undermine the incentives drug manufacturers have to change labeling to respond to newly-discovered risks. The background possibility of failure-to-warn litigation provides important incentives for drug companies to ensure that drug labels reflect accurate and up-to-date safety information. …

Law & Health Care Newsletter, V. 15, No. 1, Fall 2007

Law & Health Care Newsletter

No abstract provided.

Tobacco Regulation Review, V. 6, No. 2, Sept. 2007

Tobacco Regulation Review

No abstract provided.

Medicare's Use Of Risk Adjustment, Gerald F. Kominski

National Health Policy Forum

Medicare accounts for expected differences in resource needs of patients or health plan enrollees by risk-adjusting the payments it makes to health care facilities, such as hospitals, skilled nursing facilities, and home health agencies, and the premiums it pays to health plans. Risk adjustment is intended to ensure that payments or premiums are adequate for patients or plan enrollees who require more resources than average in order to protect beneficiary access as well as the financial condition of the provider or plan. At the same time, risk adjustment lowers payments or premiums for beneficiaries who are expected to use fewer …

Medicaid And State Budgets: Clearing Storm, Foggy Forecast, Courtney Burke

National Health Policy Forum

This issue brief examines the recent history and trends in state budgets and considers how those trends have influenced the role of the Medicaid program. The paper offers several indicators for predicting the future of states’ fiscal standing, cautioning that, although the “stormy” period from 2001 to 2003 is over, states face many challenges in the near future. This issue brief also poses several questions regarding the appropriate roles of state and federal governments in administering the Medicaid program. These questions become particularly important as the population ages and states increasingly take the lead in developing solutions for covering the …

Fast-Food Government And Physician-Assisted Death: The Role Of Direct Democracy In Federalism, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

Modern patients often enter a twilight zone of suspended animation between living and dying that did not exist a generation ago. The majority of Americans believe these terminal patients should have the right to refuse life support and to receive pain relief, even to the point of hastening death. Yet laws addressing the situation are unclear, and physician advocates, like Dr. Kevorkian of Michigan, have faced sanctions and jail time when they responded to patient requests for help to die peacefully. In its 2006 Gonzales v. Oregon decision, the U.S. Supreme Court shifted the physician-assisted death dilemma to the state-side …

Community-Based Long-Term Care: Wisconsin Stays Ahead, Judith D. Moore, Carol O'Shaughnessy, Lisa Sprague

National Health Policy Forum

This report describes a site visit to Wisconsin in August 2007 that focused on the use of home and community-based services, both public and private, to delay or avoid the need for institutional care. Wisconsin was chosen because it has long been a leader among states in developing such services for the elderly and persons with disabilities. At the time of the visit, a managed long-term care program, Family Care, was operating on a pilot basis in five counties. The Partnership Program, a four-site demonstration integrating acute and long-term care for the dual eligible population (both frail elderly and younger …

Shrinking Inpatient Psychiatric Capacity: Cause For Celebration Or Concern?, Eileen Salinsky, Christopher Loftis

National Health Policy Forum

This issue brief examines reported capacity constraints in inpatient psychiatric services and describes how these services fit within the continuum of care for mental health treatment. The paper summarizes the type and range of acute care services used to intervene in mental health crises, including both traditional hospital-based services and alternative crisis interventions, such as mobile response teams. It reviews historical trends in the supply of inpatient psychiatric beds and explores the anticipated influence of prospective payment for inpatient psychiatric services under Medicare. The paper also considers other forces that may affect the need for and supply of acute mental …

Diabetes Treatments And Moral Hazard, Jonathan Klick, Thomas Stratmann

All Faculty Scholarship

In the face of rising rates of diabetes, many states have passed laws requiring health insurance plans to cover medical treatments for the disease. Although supporters of the mandates expect them to improve the health of diabetics, the mandates have the potential to generate a moral hazard to the extent that medical treatments might displace individual behavioral improvements. Another possibility is that the mandates do little to improve insurance coverage for most individuals, as previous research on benefit mandates has suggested that mandates often duplicate what plans already cover. To examine the effects of these mandates, we employ a triple-differences …

Health Information Technology Adoption Among Health Centers: A Digital Divide In The Making?, Adil Moiduddin, Daniel S. Gaylin

National Health Policy Forum

This background paper describes the current status of efforts to implement health information technology in community health centers. It summarizes the benefits experienced by health centers that have pioneered the use of information technology and examines the challenges that have hindered wider adoption. The paper identifies a range of policy options that have been considered to promote broader use of information technology by health centers.

Newsletter, Summer 2007

Newsletter

No abstract provided.

What Do Nonprofits Maximize? Hospital Service Provision And Market Ownership Mix, Jill R. Horwitz, Austin Nichols

Law & Economics Working Papers Archive: 2003-2009

Conflicting theories of the nonprofit firm have existed for several decades yet empirical research has not resolved these debates, partly because the theories are not easily testable but also because empirical research generally considers organizations in isolation rather than in markets. Here we examine three types of hospitals – nonprofit, for-profit, and government – and their spillover effects. We look at the effect of for-profit ownership share within markets in two ways, on the provision of medical services and on operating margins at the three types of hospitals. We find that nonprofit hospitals’ medical service provision systematically varies by market …

The Cash Nexus, Carl E. Schneider

Articles

Courts and legislatures have labored for decades to protect patients' choice of medical treatments, even though patients seize that gift less eagerly than lawmakers expect. Yet while courts have rushed to build the whited sepulchre of informed consent, they have fled from a related problem that patients actually yearn to solve and that actually can be ameliorated the plight of patients who perforce agree to a treatment before they know its costs and who receive a bill both unrelated to the treatment's value and several times what an insured patient would pay. Increasingly, patients must be consumers in the medical …

Imaging The Mind, Minding The Image: An Historical Introduction To Brain Imaging And The Law, Laura Stephens, Shahram Khoshbin

Faculty Scholarship

Since ancient times, people have yearned to attribute human behaviors to a physical source within the head. Recently, neuroimaging technologies have given us the technical ability to look at the living brain, its structures, and some of its functions without the need for invasive procedures. However, the science has a long way to go before these technologies can allow us fully to appreciate the anatomical and physiologic underpinnings of human thoughts, states of mind, motives, will, or behaviors.

In this Article, we use an historical overview to introduce the various new technologies for imaging the brain. Today, the goal of …

Failure To Connect: The Massachusetts Plan For Individual Health Insurance, Elizabeth Weeks Leonard

Scholarly Works

This Article briefly describes the key features of the Massachusetts Health Care Reform Act, focusing particularly on the Connector. It then offers preliminary thoughts on the expected effect of that mechanism for creating quality, affordable health insurance products for individuals. Observers anticipate that commercial insurers will offer scant coverage and high-premium, high-deductible plans through the Connector, which coverage ultimately may be neither more affordable than products currently or more helpful to covering the cost of health care than no coverage at all. If the Connector fails to facilitate the individual insurance mandate, Massachusetts's promise of universal coverage may begin to …

Might The Fact That 90% Of Americans Live Within 15 Miles Of A Wal-Mart Help Achieve Universal Health Care?, William M. Sage

Faculty Scholarship

The subject of this Essay is the retail medical clinic movement. Retail medical clinics-a few hundred exist at the time of this publication-are typically located in national or regional chains of discount stores, pharmacies, and supermarkets. 1 News articles describing this new phenomenon in American health care tend to examine its viability as a business. The symposium for which this Essay was prepared is devoted to the "Massachusetts Health Plan," that state's pioneering effort (in the current political cycle) to achieve near-universal health insurance for its residents. Accordingly, this Essay situates the retail medical clinic movement in overall "health policy," …