Law Commons^™

Clearing The Path: Improving Implementation Of Georgia’S Pathways To Coverage Program, Nicholas Smith

Emory Law Journal Online

Georgia’s Medicaid program is in flux. The State recently launched Pathways to Coverage, a partial Medicaid expansion program for non-disabled adults in households under 100% of the Federal Poverty Line, with eligibility contingent on reporting 80 hours of work per month. Pathways’ rollout coincides with Medicaid “unwinding,” an ongoing post-COVID redetermination process in which thousands of Georgians have already lost coverage. As such, Pathways could play an important role in offsetting the unwinding’s disenrollment effects. But Pathways may also serve as a test case for conservative lawmakers hoping to institute (or reinstitute) work requirements to restrict Medicaid coverage in their …

Structural Sex Discrimination: Why Gynecology Patients Suffer Avoidable Injuries And What The Law Can Do About It, Christopher Robertson, Annabel Kupke, Louise P. King

Faculty Scholarship

The nearly four million Americans who undergo gynecological surgeries each year suffer avoidable lifelong, painful, and disabling injuries. This Article diagnoses the root cause in our legal framework for healthcare finance and identifies legal solutions.

America’s public-private system for reimbursing healthcare pays for procedures rather than outcomes, and it pays substantially more for work on male rather than female anatomies. This disparity is due to the federal government’s reliance on a secretive industry committee to set those rates, and the committee’s reliance on junk science surveys, allowing self-interested and gender-biased responses, contrary to objective measures.

As payors disvalue the bodies …

Ballad Health: Understanding Appalachia’S Regional Healthcare Monopoly, Meredith A. Bailey

Baker Scholar Projects

The Ballad Health merger of 2018, which combined the now 21 hospitals in the region under one organization, has impacted the healthcare landscape in Northeast Tennessee and Southwest Virginia. Historically, Appalachia has had to persevere through primary physician shortages, a lack of specialty care, geographic obstacles to accessing healthcare, challenges related to substance abuse, and much more. Since the merger of Mountain States Health Alliance and Wellmont Health System, little research has been done to assess the perceived impact the aggregation of providers has had on the population it serves. This study utilizes an online survey to better understand the …

Un-Erasing Race In A Medical-Legal Partnership: Antiracist Health Justice Advocacy By Design, Danielle Pelfrey Duryea, Peggy Maisel, Kelley Saia

Faculty Scholarship

This Article covers a potential response to a Massachusetts state law which has been interpreted to require health care providers and birthing hospitals to report to state authorities any infant born to a person taking medication of opioid use disorder. While the statute mandates reports where a professional has "reasonable cause to believe that a child is suffering physical or emotional injury" as a result of substance dependence at birth, the Article highlights that many institutions report all infants born to persons with substance abuse disorders, regardless of risk of harm, for fear of penalty for failure to report. As …

What The Harm Principle Says About Vaccination And Healthcare Rationing, Christopher Robertson

Faculty Scholarship

Clinical ethicists hold near consensus on the view that healthcare should be provided regardless of patients’ past behaviors. In classic cases, the consensus can be explained by two key rationales—a lack of acute scarcity and the intractability of the facts around those behaviors, which make discrimination on past behavior gratuitous and infeasible to do fairly. Healthcare providers have a duty to help those who can be helped. In contrast, the COVID-19 pandemic suggests the possible recurrence of a very different situation, where a foreseeable acute shortage of healthcare resources means that some cannot be helped. And that shortage is exacerbated …

From Healthcare To Hiring: Impacts Of Social And Public Policy On Disabled Veterans In The United States, Benjamin Michael Stoflet

Student Scholarship

The United States Government is struggling to fulfill commitments it has made to service members suffering from disabilities incurred during honorable service to the country. The Department of Veterans Affairs (VA) disability compensation structure, job training programs, and methods of alternative dispute resolution is a patchwork resulting from decades of legislation creating a system where veterans often become locked in a complicated and often combative process to obtain benefits they have earned. Employers, advocacy groups, academics, and federal officials agree that there are systematic issues within the VA negatively impacting disabled veterans. These include a lack of patient-centered care, divergent …

Clinical Interactions In Electronic Medical Records Towards The Development Of A Token-Economy Model, Nicole Allison S. Co, Jason Limcaco, Hans Calvin L. Tan, Ma. Regina Justina E. Estuar, Christian E. Pulmano, Dennis Andrew Villamor, Quirino Sugon Jr, Maria Cristina G. Bautista, Paulyn Jean Acacio-Claro

Graduate School of Business Publications

The use of electronic medical records (EMRs) plays a crucial role in the successful implementation of the Universal Healthcare Law which promises quality and affordable healthcare to all Filipinos. Consequently, the current adoption of EMRs should be studied from the perspective of the healthcare provider. As most studies look into use of EMRs by doctors or patients, there are very few that extend studies to look at possible interaction of doctor and patient in the same EMR environment. Understanding this interaction paves the way for possible incentives that will increase the use and adoption of the EMR. This study uses …

Liability For Use Of Artificial Intelligence In Medicine, W. Nicholson Price, Sara Gerke, I. Glenn Cohen

Law & Economics Working Papers

While artificial intelligence has substantial potential to improve medical practice, errors will certainly occur, sometimes resulting in injury. Who will be liable? Questions of liability for AI-related injury raise not only immediate concerns for potentially liable parties, but also broader systemic questions about how AI will be developed and adopted. The landscape of liability is complex, involving health-care providers and institutions and the developers of AI systems. In this chapter, we consider these three principal loci of liability: individual health-care providers, focused on physicians; institutions, focused on hospitals; and developers.

Reconnecting The Patient: Why Telehealth Policy Solutions Must Consider The Deepening Digital Divide, Laura C. Hoffman

Law Faculty Articles and Essays

This Article will attempt to untangle the complicated web of providing telehealth to those populations it is potentially capable of further alienating from access to healthcare including: 1) race/minority populations, 2) aging adults, 3) individuals with disabilities, 4) non-English speakers, 5) individuals living in rural areas, 6) socioeconomic class, and 7) children, in order to advance the argument that telehealth can be successful in providing healthcare access to these populations. Rather than suggesting that telehealth simply "cannot work" for these populations, instead consideration can and must meet these individuals through technology, access, and policy developments.

First, this Article will explain …

Regulation Of Health-Related Artificial Intelligence In Medical Devices: The Canadian Story, Michael Da Silva, Colleen M. M. Flood, Matthew Herder

Articles, Book Chapters, & Popular Press

Artificial Intelligence (AI) may transform Canadian healthcare. The hope is that AI will enable more accurate and efficient care, thereby solving many access, quality, and safety problems. Yet, despite this tantalizing prospect, there are risks of unsafe AI harming patients, algorithmic bias, and threats to privacy. This work begins analysis of whether applicable Canadian laws are up to the task of ensuring Canadians can benefit from effective health-related AI while minimizing AI-related risks. It focuses on Health Canada’s regulation of medical devices, a ‘first line of defence’ that decides which devices are safe, effective, and thus permitted for trade in …

A Modest Proposal: Leveraging Private Enforcement Mechanisms And The Bayh-Dole Act To Reduce Drug Prices In The U.S. Healthcare Industry, Brittany Day

Duke Journal of Constitutional Law & Public Policy Sidebar

The United States healthcare system is one of the most expensive in the world. Unlike other products, when drug prices skyrocket, people may die. While advocating for various solutions, both the Biden and Trump administrations have recognized the importance of halting the rise of prescription drug prices. Most of the solutions advanced are focused on government-side initiatives, such as allowing Medicare to directly negotiate with pharmaceutical companies. Yet, the "march-in rights" built into the Bayh-Dole Act create an opportunity to set up a mechanism that would invite private actors to sue pharmaceutical companies for unconscionable drug pricing. The Bayh-Dole Act …

A Unified Theory Of Data, William Magnuson

Faculty Scholarship

How does the proliferation of data in our modern economy affect our legal system? Scholars that have addressed the question have nearly universally agreed that the dramatic increases in the amount of data available to companies, as well as the new uses to which that data is being put, raise fundamental problems for our regulatory structures. But just what those problems might be remains an area of deep disagreement. Some argue that the problem with data is that current uses lead to discriminatory results that harm minority groups. Some argue that the problem with data is that it impinges on …

Privacy In Pandemic: Law, Technology, And Public Health In The Covid-19 Crisis, Tiffany C. Li

Law Faculty Scholarship

The COVID-19 pandemic has caused millions of deaths and disastrous consequences around the world, with lasting repercussions for every field of law, including privacy and technology. The unique characteristics of this pandemic have precipitated an increase in use of new technologies, including remote communications platforms, healthcare robots, and medical Al. Public and private actors alike are using new technologies, like heat sensing, and technologically influenced programs, like contact tracing, leading to a rise in government and corporate surveillance in sectors like healthcare, employment, education, and commerce. Advocates have raised the alarm for privacy and civil liberties violations, but the emergency …

Should The U.S. Government Actively Assert Its Own Patents?, Christopher J. Morten, Barry Datlof, Amy Kapczynski, Donna Meuth, Zain Rizvi

Faculty Scholarship

On March 10, 2021, our journal partnered with the Engelberg Center on Innovation Law and Policy to host a symposium addressing the role and impact of U.S. innovation policy on access to medicine. Our 2021 Symposium Issue — Volume 11, Issue 1 — captures that event.

The following article represents the second of four panels. This panel asked, “Should the U.S. government actively assert its own patents?” The panel was moderated by Christopher Morten, Deputy Director of NYU Law’s Technology Law & Policy Clinic. The panelists included Barry Datlof, Chief of Business Development and Commercialization in the Office of Medical …

Striving For The Mountaintop: The Elimination Of Health Disparities In A Time Of Retrenchment (1968-2018), Gwendolyn R. Majette

Law Faculty Articles and Essays

Health disparities in the United States are real. People of color are the adverse beneficiaries of these facts-lower life expectancy, higher rates of morbidity and mortality, and poorer health outcomes in general. This Article analyzes the laws and policies that improve and create barriers to improving people of color's health since the death of Reverend Martin Luther King, Jr. in 1968. The Article builds upon my earlier scholarship and considers the effectiveness of the "PPACA Framework to Eliminate Health Disparities" since the Patient Protection and Affordable Care Act (PPACA) was enacted in 2010.

The Article also explores the impact of …

Keeping The Patient At The Center Of Machine Learning In Healthcare, Jessica Findley, Andrew Woods, Christopher Robertson, Marvin J. Slepian

Faculty Scholarship

Char et al. (2020) aspire to provide "a systematic approach to identifying ... ethical concerns" around machine learning healthcare applications (ML-HCAs), which includes artificial intelligence and big data. Their approach, styled around the development "pipeline" for new technologies, has valuable insights, but we think it over-emphasizes technical design questions and under-emphasizes core ethical questions. There is little ethical debate about whether to maximize accuracy, evaluation, and oversight, at reasonable cost. Of course those goals should be pursued, but these are design challenges about feasibility more than ethical concerns.

Telehealth For An Aging Population: How Can Law Influence Adoption Among Providers, Payors, And Patients?, Tara Sklar, Christopher Robertson

Faculty Scholarship

Telehealth continues to experience substantial investment, innovation, and unprecedented growth. However, telehealth has been slow to transform healthcare. Recent developments in telehealth technologies suggest great potential for chronic care management, mental health services, and care delivery in the home—all of which should be particularly impactful for an aging population with physical and cognitive limitations. While this alignment of technological capacity and market demand is promising, legal barriers remain for telehealth operators to scale up across large geographic areas. To better understand how federal and state law can be reformed to enable greater telehealth utilization, we review and extract lessons from …

Distinguishing Moral Hazard From Access For High-Cost Healthcare Under Insurance, Christopher Robertson, Andy Yuan, Wendan Zhang, Keith Joiner

Faculty Scholarship

Health policy has long been preoccupied with the problem that health insurance stimulates spending (“moral hazard”). However, much health spending is costly healthcare that uninsured individuals could not otherwise access. Field studies comparing those with more or less insurance cannot disaggregate moral hazard versus access. Moreover, studies of patients consuming routine low-dollar healthcare are not informative for the high-dollar healthcare that drives most of aggregate healthcare spending in the United States.

We test indemnities as an alternative theory-driven counterfactual. Such conditional cash transfers would maintain an opportunity cost for patients, unlike standard insurance, but also guarantee access to the care. …

Returning Results In The Genomic Era: Initial Experiences Of The Emerge Network, Ellen W. Clayton, Georgia L. Wiesner, Alanna K. Rahm, Et Al.

Vanderbilt Law School Faculty Publications

A goal of the 3rd phase of the Electronic Medical Records and Genomics (eMERGE3) Network was to examine the return of results (RoR) of actionable variants in more than 100 genes to consenting participants and their healthcare providers. Each of the 10 eMERGE sites developed plans for three essential elements of the RoR process: Disclosure to the participant, notification of the health care provider, and integration of results into the electronic health record (EHR). Procedures and protocols around these three elements were adapted as appropriate to individual site requirements and limitations. Detailed information about the RoR procedures at each site …

The Healthcare Privacy-Artificial Intelligence Impasse, Charlotte A. Tschider

Faculty Publications & Other Works

With the advent of the Internet, wireless technologies, advanced computing, and, ultimately, the integration of mobile devices into patient care, medical device technologies have revolutionized the healthcare sector. What once was a highly personal, one-to-one relationship between physician and patient has now been expanded, including medical device manufacturers, third party healthcare system providers, even physician-as-a-service for interpreting the data complex systems churn out. The introduction of technology to the healthcare field has, at an ever-increasing rate, transformed human health management.

Reworking privacy commitments in an AI world is an important endeavor. It may mean that we reconceptualize what these rights …

Covid-19 Vaccines As Global Public Goods, Jason W. Nickerson, Matthew Herder

Articles, Book Chapters, & Popular Press

Vulnerable: The Law, Policy and Ethics of COVID-19 confronts the vulnerabilities that have been revealed by the pandemic and its consequences. It examines vulnerabilities for people who have been harmed or will be harmed by the virus directly and those harmed by measures taken to slow its relentless march; vulnerabilities exposed in our institutions, governance, and legal structures; and vulnerabilities in other countries and at the global level where persistent injustices affect us all. COVID-19 has forced us to not only reflect on how we govern and how we set policy priorities, but also to ensure that pandemic preparedness, precautions, …

Elevating Physician-Patient Relationships In The Shadow Of Metric Mania, Benjamin Sundholm

Faculty Publications

Today, medical and health institutions devote significant time and resources to documenting, measuring, and reporting various metrics. These metrics are used to improve various aspects of care, from efficiency and quality to safety and access. Unfortunately, too often, medical and health institutions overemphasize metrics that are easily captured but too simplistic. As a result, insufficient attention is devoted to crucial, albeit complex and difficult to measure, facets of care. Physician-patient relationships are among the primary casualties resulting from the widespread penchant for overly simplistic metrics. This Article develops a strategy for improving such relationships. I suggest that enhancing physicians' interpersonal …

Healthcare Blockchain Infrastructure: A Comparative Approach, Ana Santos Rutschman

All Faculty Scholarship

Blockchain has been hailed as the most disruptive technology of the next decade. One of the areas of immediate application is healthcare, where different types of blockchain applications could help streamline data sharing, protect patient privacy, and assist in the monitoring of drug shipments. This Article explores the first steps taken by healthcare companies in the United States to incorporate blockchain solutions into their business models. It then contrasts them to ongoing experiments in the European Union, with a focus on Sweden’s adoption of CareChain (a national, interoperable blockchain health data platform) and Estonia’s digitization of 95% of the country’s …

Healthcare And Its Impact On Nurses: The United States Vs. The United Kingdom, Alexandria Colovos

Mahurin Honors College Capstone Experience/Thesis Projects

Currently, in the United States, the topic of healthcare reform is in the back of everyone’s mind. What will come of our healthcare system? Will the cost of healthcare decrease? Will patients have better access to care? With this Capstone Experience/Thesis, I wanted to explore the differences between the current healthcare system that we have in the United States, to the nearly seventy-year-old National Health Service (NHS) in the United Kingdom, which provides healthcare to all. The NHS is free at the point of care and is funded by taxation. To understand if such a system would work in the …

Key New Hampshire And Federal Statutes Regulating Health Care Delivery And Payment, Lucy Hodder

Law Faculty Scholarship

A summary of New Hampshire and federal regulations by subject matter, chart of New Hampshire state agency responsibilities, federal laws and regulation: An index

Trending @ Rwu Law: Dean Yelnosky's Post: The Path To Commencement: Maria Viveiros '17 05-08-2017, Michael Yelnosky

Law School Blogs

No abstract provided.

Reflections On The Report Of The Un Secretary General’S High Level Panel On Access To Medicines, Frederick M. Abbott

Scholarly Publications

No abstract provided.

The American Health Care Act Would Toss The States A Hot Potato, David Gamage, Darien Shanske

Articles by Maurer Faculty

This essay explains how the American Health Care Act (AHCA) – the House Republicans’ proposed replacement for Obamacare – would toss a hot potato to state governments. Were the AHCA to be enacted into law, state governments would need to act promptly if they are to save individual insurance markets within their states. This essay explains measures that state governments might take to respond to this threat.

Redefining Medical Care, Lauren R. Roth

Scholarly Works

President Donald J. Trump has said he will replace the Affordable Care Act (ACA) with health savings accounts (HSAs). Conservatives have long preferred individual accounts to meet social welfare needs instead of more traditional entitlement programs. The types of “medical care” that can be reimbursed through an HSA are listed in § 213(d) of the Internal Revenue Code (Code) and include expenses “for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.”

In spite of the broad language, regulations and court interpretations have narrowed this definition substantially. …

Remedying Stigma-Driven Health Disparities In Sexual Minorities, Valarie K. Blake

Law Faculty Scholarship

No abstract provided.