Law Commons^™

Male Circumcision As An Hiv Prevention Strategy In Sub-Saharan Africa: Socio-Legal Barriers, Lawrence O. Gostin

O'Neill Institute Papers

UNAIDS and WHO recommend safe, voluntary male circumcision as an additional, important strategy for the prevention of heterosexually-acquired HIV in men in areas with high HIV prevalence and low levels of male circumcision. Comprehensive male circumcision services should include HIV testing and counseling, partner reduction, and male and female condom use. Yet, male circumcision can have deep symbolic meaning that could pose barriers to implementation. In some parts of the world, it is a traditional practice with religious or cultural significance, in others it is a common hygiene intervention, and in yet others it is unfamiliar or foreign. Consequently, the …

President’S Emergency Plan For Aids Relief: Health Development At The Crossroads, Lawrence O. Gostin

O'Neill Institute Papers

The President’s Emergency Plan for AIDS Relief (PEPFAR) was the largest commitment by any nation to combat a single disease in human history, authorizing up to $15 billion over 5 years. On July 30, 2008, President Bush signed into law the historic reauthorization of PEPFAR, dramatically increasing the financial commitment by authorizing up to $48 billion over 5 years, including $5 billion for Malaria and $4 billion for Tuberculosis. PEPFAR’s global targets are inspiring: treat 3 million people; prevent 12 million new HIV infections, and care for 12 million people, including 5 million orphans and vulnerable children. But, PEPFAR has …

Medicaid Financing: How The Fmap Formula Works And Why It Falls Short, Christie Provost Peters

National Health Policy Forum

Medicaid costs for health and long-term care services for low-income individuals are substantial. As a result, each state’s “match rate,” or federal medical assistance percentage (FMAP), which determines the share of Medicaid benefit costs the federal government pays, has enormous implications for state budgets and state economies, as well as for Medicaid beneficiaries and providers. Shifts in the FMAP from year to year, even minor ones, can mean the gain or loss of tens or hundreds of millions of federal matching dollars, depending on the size of the state’s Medicaid program. This paper explains the FMAP formula, examines the limitations …

Bizarre Love Triangle: The Spending Clause, Section 1983, And Medicaid Entitlements, Nicole Huberfeld

Law Faculty Scholarly Articles

The first two terms of the Roberts Court signal a willingness to revisit precedent, even decisions that have been considered long-settled, and the United States Supreme Court may be ready to reinterpret another area of jurisprudence: the private enforcement of conditions on federal spending against states through actions under 42 U.S.C. § 1983. The most recent pre-Roberts Court precedent is Gonzaga University v. Doe, a 2002 decision that made it more difficult for individuals harmed by violations of federal laws to enforce rights through § 1983 actions. Federal courts have inconsistently and confusingly applied the Gonzaga framework, but the …

Profile Of Alcohol And Drug Indicators For Hillsborough County, Florida, Kathleen A. Moore, M. Scott Young, Ellen Snelling, Sue Carrigan

Mental Health Law & Policy Faculty Publications

No abstract provided.

Primary Care Physician Supply, Physician Compensation, And Medicare Fees: What Is The Connection?, Laura A. Dummit

National Health Policy Forum

Primary care, a cornerstone of several health reform efforts, is believed by many to be in a crisis because of inadequate supply to meet future demand. This belief has focused attention on the adequacy of primary care physician supply and ways to boost access to primary care. One suggested approach is to raise Medicare fees for primary care services. Whether higher Medicare fees would increase physician interest in primary care specialties by reducing compensation disparities between primary care and other specialties has not been established. Further, many questions remain about the assumptions underlying these policy concerns. Is there really a …

Tending To Richmond's Children: Community Strategies To Bridge Service Gaps, Judith D. Moore, Jessamyn Taylor

National Health Policy Forum

The National Health Policy Forum sponsored a site visit to Richmond, Virginia, in October 2008 to explore social and environmental determinants of children’s health, including the impacts that poverty and exposure to lead-based paint have on birth outcomes, child development, and school readiness; and the community's efforts to address them. Though not large in population terms, Richmond faces many of the social and economic problems often common in larger urban areas—concentrated poverty, migration of wealth and services to the surrounding counties, a high infant mortality rate, and troubled schools. The site visit explored community strategies to improve birth outcomes and …

Medicaid And Mental Health Services, Cynthia Shirk

National Health Policy Forum

Medicaid is the largest payer of mental health services in the United States, contributing more than any other private or public source of funding. This background paper highlights the variety of services and supports needed by individuals with mental illness and Medicaid’s increasing role in mental health coverage. It provides an overview of Medicaid coverage of mental health services and identifies some of the key challenges in providing that coverage.

Torts And Innovation, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

This Essay exposes and analyzes a hitherto overlooked cost of the current design of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts’ reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, the recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.

The Professional Ethics Of Billing And Collections, Mark A. Hall, Carl E. Schneider

Articles

Medicine is a Profession on which physicians rely for their livelihood and patients for their lives. If physicians do not charge for services, they cannot survive. If patients cannot afford those services, they cannot survive. No wonder many physicians have long agreed that fees are “one of the most difficult problems . . . between patient and physician.” For years comprehensive insurance subdued this problem, but currently widespread underinsurance and consumer-directed health care are reviving it. Even as the ranks of the uninsured continue to increase,the latest hope for controlling medical costs requires insured patients to pay for much more …

Mid-Atlantic Ethics Committee Newsletter, Fall 2008

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.

Health Law Outlook - Volume 2, Issue 1 (Fall 2008)

Health Law Outlook (archive)

Inside this issue:

• New Jersey Hospitals in Need of Help: Recent Legislation to Remedy Problems, Matthew Colford
• New Jersey's Health Care Reform Law S-1557: What The Law Aims to Do and Who It Will Affect, Kaitlin Semler
• Seeing is Believing: The Need for Transparency in the Creation of Pandemic Preparedness Plans, Maansi Raswant
• Gardasil: Medical Miracle or Merck's Myth?: Should Schools Mandate the Vaccination of School Girls?, Nicole McErlean
• Riegel v. Medtronic: Supreme Court Changes Medical Device Liability, Katherine Freed
• Group vs. Solo Practice: An Analysis of Advantages and Disadvantages of "Going Group", Christina Hage
• Health Savings …

Newsletter, Fall 2008

Newsletter

No abstract provided.

The Patent Lottery: Exploiting Behavioral Economics For The Common Good, Dennis D. Crouch

Faculty Publications

Lotteries are immensely popular. Players are willing to give the organizer a large monetary cut of every ticket purchase in return for a chance at a jackpot. In some ways, our current patent system operates as a lottery as well. Most patents are relatively worthless, while a few are highly valuable. Reaching the major payout of a highly valuable patent takes perseverance in the face of tremendous uncertainty. Like lottery players, small entrepreneurial companies and individuals have shows signs of bounded rationality. In particular, what I call the patent lottery effect is associated with the phenomena of potential innovators overweighting …

What Is Urban Health Policy And What's Law Got To Do With It?, Larry I. Palmer

Faculty Publications

No abstract provided.

The Changing Face Of Family Law: Global Consequences Of Embedding Physicians And Biotechnology In The Parent-Child Relationship, George J. Annas

Faculty Scholarship

Sexual reproduction, also known as making babies the old-fashioned way, has always brought with it significant challenges for family law, especially regarding protecting the best interests of children, and the identification of parents with the right and responsibility to rear them. But these challenges often seem mundane in the face of what has evolved since physicians have been injected into baby making and thus into novel parent-child relationships. The addition of physicians and their "new" medical technologies, sometimes called Assisted Reproductive Technology (ART), have forced the law to reconsider the very definition of motherhood and have radically altered society's view …

Patient-Tailored Medicine, Part One: The Impact Of Race And Genetics On Medicine, Corrine Parver

Articles in Law Reviews & Other Academic Journals

One of the more controversial elements of advancing technology is the use of race and genetics to help create more specific types of medicines that will help combat diseases and conditions that appear to be more prevalent within certain races or ethnic groups than in others. Considering the history of discrimination and inadequate treatment of individuals on the bases of race and gender in the United States, there is justifiable concern that race or gender-based treatment could be used to legitimate discrimination. On the other hand, there is substantial proof that the current method of creating medicines for the general …

Defense Costs And Insurer Reserves In Medical Malpractice And Other Personal Injury Cases: Evidence From Texas, 1988-2004, Bernard Black, David A. Hyman, Charles Silver, William M. Sage

Faculty Scholarship

We study defense costs for commercially insured personal injury tort claims in Texas over 1988–2004, and insurer reserves for those costs. We rely on detailed case-level data on defense legal fees and expenses, and Texas state bar data on lawyers’ hourly rates. We study medical malpractice (“med mal”) cases in detail, and other types of cases in less detail. Controlling for payouts, real defense costs in med mal cases rise by 4.6 percent per year, roughly doubling over this period. The rate of increase is similar for legal fees and for other expenses. Real hourly rates for personal injury defense …

Dances With Elephants: Administrative Resolution Of Medical Injury Claims By Medicare Beneficiaries, Eleanor D. Kinney, William M. Sage

Faculty Scholarship

In our judgment, Hoffmann and Rowthorn's research clearly demonstrates that the QIO-based complaint review process does not provide genuine relief to beneficiaries. People who complain typically want an explanation of their bad experience, compensation for harm they may have suffered, and assurance that future experiences will be better for themselves and for others. Medicare beneficiaries, however, receive minimal information about the resolution of their complaints and no substantive relief whatsoever.

As Hoffmann and Rowthorn point out, several reform proposals are now before Congress, including moving the beneficiary complaint function from QIOs to new "Medicare Provider Review Organizations." It is not …

The Case Against Tax Incentives For Organ Transfers, Lisa Milot

Scholarly Works

Each year some 6,700 Americans die while awaiting an organ transplant. On its face, this fact seems almost inconsequential, representing less than 3% of American deaths annually. However, for the nearly 100,000 patients on the transplant wait list (and their families), nothing could be more consequential. What is more, the demand for transplantable organs is sure to rise as (1) more diseases become subject to prevention or cure, making organ failure the first sign of medical problems; (2) the success rate for transplants increases, leading to wider use; and (3) barriers to inclusion on the wait list are removed.

In …

Covering All Kids: States Setting The Pace, Jennifer Ryan, Safiya Mojerie

National Health Policy Forum

Providing health insurance coverage for the uninsured is a challenge that has remained unresolved for decades. In the absence of a national solution, states have initiated their own efforts to expand access to health insurance coverage, particularly for children. This issue brief provides a history and status of state universal children’s coverage initiatives and features several states that appear to be setting the pace by developing successful strategies for expansion and cultivating the political will and leadership needed to institute them. In highlighting some of the key lessons that can be learned from states’ experiences, this paper may inform the …

The Likely Impact Of Mandated Paid Sick And Family-Care Leave On The Economy And Economic Development Prospects Of The State Of Ohio, Edward W. Hill, Spence Christopher, Daila Shimek, Ziona Austrian

All Maxine Goodman Levin School of Urban Affairs Publications

This report analyzes the potential impact of a proposed paid sick and family care leave legislation on the economy of the state of Ohio, the economic development prospects of the state and on the management of production processes that depend on highly integrate teams. The report also reviews the literature on the effect of mandated paid sick and family care leave on the industrial relations system—workplace performance and worker retention. Our analysis concludes that there would have been a net cost associated with the paid sick leave and family-care initiative proposed in Ohio with a lower bound estimate of $63.84 …

Global Health Law: A Definition And Grand Challenges, Lawrence O. Gostin, Allyn L. Taylor

O'Neill Institute Papers

It has been only recently that scholars have engaged in a serious discussion of "public health law." This academic discourse examines the role of the state and civil society in health promotion and disease prevention within the country. There is an important emerging literature on the international dimensions of health, but no similar systematic definition and exposition of a field we call "global health law." In this article we aim to fill this gap by defining global health law and characterizing the grand challenges. Given the rapid and expanding globalization that is a defining feature of today's world, the need …

Global Health Law: Health In A Global Community, Lawrence O. Gostin

O'Neill Institute Papers

The examination of public health law traditionally focuses on constitutions, statutes, regulations, and common law at the national and sub-national level. However, the determinants of health (e.g., pathogens, air, food, water, even lifestyle choices) do not originate solely within national borders. Health threats inexorably spread to neighboring countries, regions, and even continents. Peoples’ lives are profoundly affected by commerce, politics, science, and technology from all over the world. Global integration and interdependence occur “as capital, traded goods, persons, concepts, images, ideas, and values diffuse across state boundaries.” It is for this reason that law and policy need to be transnational, …

Global Health Law Governance, Lawrence O. Gostin

O'Neill Institute Papers

The field of public health law traditionally focuses on law at the national and sub-national level. National legal systems, however, are inadequate to deal with major threats to humans. Despite the inadequacies of national governance, there are fundamental questions that need resolution in the field of global health law: Why should governments care about the health of people far away? Are profound health disparities just and, if not, is there a corresponding obligation to redress the injustice? Can international law effectively bind governments, foundations, and corporations to act for the global good? This article, based on a lecture at Emory …

The Deregulatory State, Lawrence O. Gostin

O'Neill Institute Papers

Public health can be achieved only through collective action, not through individual endeavor. Collective goods are essential conditions for health, but can be secured only through a well-regulated society. Yet, successive governments have eroded health and safety protections, with serious consequences. Think about the death of miners, lead in children’s toys, industrial solvents in toothpaste, salmonella in peanut butter, e-coli in spinach, and unsafe or ineffective pharmaceuticals such as COX-2 inhibitors or non-statin cholesterol medications.

Conservatives have waged a campaign against the administrative state that has created and reinforced deep-seated concerns about over-bearing government, particularly at the national level. The …

A Theory And Definition Of Public Health Law, Lawrence O. Gostin

O'Neill Institute Papers

The literature, both academic and judicial, on the intersection of law and health is pervasive. The subject of law and health is widely taught, practiced, and analyzed. The fields that characterize these branches of study are called health law, health care law, law and medicine, forensic medicine, and public health law. Do these names imply different disciplines, each with a coherent theory, structure, and method that sets it apart? Notably absent from the extant literature is a theory of the discipline of public health law, an exploration of its doctrinal boundaries, and an assessment of its analytical methodology.

Public health …

The International Migration And Recruitment Of Nurses: Human Rights And Global Justice, Lawrence O. Gostin

O'Neill Institute Papers

The international migration of health workers – physicians, nurses, midwives, and pharmacists – leaves the world’s poorest countries with severe human resource shortages, seriously jeopardizing the achievement of the U.N. health Millennium Development Goals (MDGs). Advocates for global health call active recruitment in low-income countries a crime. Despite the pronounced international concern, there is little research and few solutions. This commentary focuses on the international recruitment of internationally educated nurses (IENs) from the perspective of human rights and global justice. It explains the complex reasons for nurse shortages in rich and poor countries; the duties of source and host countries; …

Ensuring Effective Pain Treatment: A National And Global Perspective, Allyn L. Taylor, Lawrence O. Gostin, Katrina A. Pagonis

O'Neill Institute Papers

Medical availability of effective pain medication is vitally important domestically and globally. Medical advances have substantially improved the technical capacity to control pain and diminish its consequences. Worldwide, millions of persons with chronic, acute, and terminal conditions have found relief from excruciating pain through medical intervention. However, richer countries have disproportionately benefited from improvements in access to and use of pain medication. The tragedy is that for most of the world's population, particularly persons in poorer countries, effective pain control is entirely unavailable.

Tobacco Regulation Review, V. 7, No. 2, Sept. 2008

Tobacco Regulation Review

No abstract provided.