Law Commons^™

From Precedent To Policy: The Effects Of Dobbs On Detained Immigrant Youth, Ciera Phung-Marion

Washington Law Review

In June 2022, the United States Supreme Court released the historic decision Dobbs v. Jackson Women’s Health Organization, holding that the U.S. Constitution does not protect an individual’s right to an abortion. Dobbs overturned many cases, including J.D. v. Azar, which previously protected abortion rights for unaccompanied migrant youth in federal detention facilities. Post-Dobbs, the Office of Refugee Resettlement (ORR)—the agency responsible for caring for detained immigrant children—still protects abortion rights as part of its own internal policy. Without judicial precedent, however, this policy lacks the stability to truly protect the rights of the children in its …

Committed To Commitment: The Problem With Washington State’S Involuntary Treatment Act, Hannah Garland

Washington Law Review

Washington State utilizes the Involuntary Treatment Act (ITA) to civilly commit individuals experiencing behavioral health crises. Although civil commitment involves stripping away fundamental rights, it receives less attention than criminal incarceration. The ITA is meant to protect not just the general community, but also the rights of people with behavioral health disorders who utilize the ITA system. Yet, its implementation tells a different story. Individuals in King County are detained and committed repeatedly, without receiving consistent care. Furthermore, the ITA disproportionately impacts unhoused individuals and Black individuals. As the ITA continues to grow both in utilization and expense, other community-based …

Reimagining Exceptional Events: Regulating Wildfires Through The Clean Air Act, Emily Williams

Washington Law Review

Wildfires are increasing in both frequency and severity due to climate change. Smoke from these fires causes serious health problems. Land managers agree that prescribed burns help mitigate these negative consequences. Prescribed burns are lower-intensity fires that are intentionally ignited and managed for an ecological benefit. They reduce the amount of smoke produced and limit wildfire damage to natural systems and human property.

The Clean Air Act (CAA) is designed to regulate air pollution to protect public health, yet it exempts wildfire smoke through the exceptional events designation while imposing strict regulations on prescribed burns. Congress and the Environmental Protection …

Health Care Fraud Means Never Having To Say You're Sorry, Jacob T. Elberg

Washington Law Review

For decades, the Department of Justice (DOJ) has issued a steady flood of press releases announcing False Claims Act (FCA) settlements against health care entities and extolling the purportedly sharp message sent to the industry through these settlements about the consequences of engaging in wrongdoing. The FCA is the primary mechanism for government enforcement against health care entities engaged in wrongdoing, and it is expected to be DOJ’s key tool for addressing fraud arising out of government programs in response to the COVID-19 pandemic. DOJ has pointed to three key goals of its enforcement efforts (deterrence, incentivizing cooperation, and building …

Applying The Health Justice Framework To Address Health And Health Care Inequities Experienced By People With Disabilities During And After Covid-19, Robyn M. Powell

Washington Law Review

The COVID-19 pandemic has been especially devastating for people with disabilities, as well as other socially marginalized communities. Indeed, an emerging body of scholarship has revealed that people with disabilities are experiencing striking disparities. In particular, scholars have shined a light on state and hospital triage policies that allow hospitals to ration critical health care and resources, such as ventilators, for people with disabilities if resources become limited and they cannot treat all patients during the pandemic. These injustices deserve extensive consideration from policymakers, legal professionals, and scholars.

Elucidating how the inequities that people with disabilities experience during the COVID-19 …

Sonograms And Speech: Informed Consent, Professional Speech, And Physicians' First Amendment Rights, Oliana Luke

Washington Law Review

Abortion is an extremely divisive topic that has caused waves of litigation. The right to access abortion has traditionally been challenged based on due process, equal protection, and privacy grounds. However, in a more recent string of cases, physicians have been challenging laws that require the physician to narrate an ultrasound before an abortion as an abridgment of their First Amendment rights. These cases require courts to balance the government’s ability to reasonably regulate a physician through professional licensing with the physician’s First Amendment protections against government-compelled speech. This Comment argues that, to balance these ideals and survive First Amendment …

The Dangers Of Disclosure: How Hiv Laws Harm Domestic Violence Survivors, Courtney K. Cross

Washington Law Review

People living with HIV or AIDS must decide whether, how, and when to disclose their positive status. State laws play an outsized role in this highly personal calculus. Partner notification laws require that current and former sexual partners of individuals newly diagnosed with HIV be informed of their potential exposure to the disease. Meanwhile, people who fail to disclose their positive status prior to engaging in sexual acts—even acts that carry low to no risk of infection—can be prosecuted and incarcerated for exposing their partners to HIV. Although both partner notification laws and criminal HIV exposure laws were ostensibly created …

Respecting The Right To Research: Proxy Consent And Subject Assent In Alzheimer's Disease Clinical Trials, Mikaela L.J. Louie

Washington Law Review

Alzheimer’s Disease is the sixth-leading cause of death in the United States and the only disease in the top ten causes of death with no prevention, treatment, or cure. To find any meaningful treatment or cure, researchers must conduct clinical trials on subjects with Alzheimer’s Disease. Subjects with Alzheimer’s Disease, however, generally lack legal capacity to consent to research due to diminished cognition. While informed consent standards for individuals who lack capacity are well settled in the medical treatment context, such standards are much less clear in the research context. A patchwork of legal and regulatory guidance addresses this issue, …

Does Small Group Health Insurance Deliver Group Benefits? An Argument In Favor Of Allowing The Small Group Market To Die, John Aloysius Cogan Jr.

Washington Law Review

The small group health insurance market is failing. Today, fewer than one-third of small firms now offer health insurance and the number of people covered by small group insurance continues to drop. These problems invite the obvious question: What should be done about the small group market? Past scholarship on the small group market has largely focused on documenting the market’s problems, evaluating the effectiveness of prior reform efforts, and proposing regulatory changes to stabilize the market. This Article takes a different approach to the small group problem by asking a previously unasked question: Does the small group market deliver …

Nudging Patient Decision-Making, Wendy Netter Epstein

Washington Law Review

Rational choice theory once pervaded the law. But we now know that individuals often make decisions that are not in their best interests. Many areas of the law have responded accordingly. The law of health care decision-making, however, has not. With limited exception, patients have the right to make their own medical decisions about their treatment, even if they make bad decisions. And there is ample evidence from the behavioral sciences that they do make bad decisions. Patients lack the stable preferences that the law assumes they will draw upon in making decisions, and they suffer from a number of …

"A Nuanced Approach": How Washington Courts Should Apply The Filed Rate Doctrine, Kaleigh Powell

Washington Law Review

As of 2015, the vast majority of the American public had some form of health insurance, mostly provided by private companies. While some customers might, at some point, contemplate suing their insurance provider—for breach of contract, consumer protection statute violation, or some other cause—these potential plaintiffs are not likely to get far in many cases. The reason is the little-known “filed rate doctrine,” a court-created rule that bars lawsuits against many agency-regulated entities. The filed rate doctrine is based on the fact that many states, including Washington, require health insurers to file their rates with a regulatory agency—and have those …

The Law, Economics, And Medicine Of Off-Label Prescribing, William S. Comanor, Jack Needleman

Washington Law Review

There is a major dissonance in the current structure of regulating new drugs that have more than one medical indication. Physicians are authorized to prescribe these drugs for all indications including those beyond their approved purposes. However, product manufacturers are expressly prohibited from marketing or promoting their drugs for any purpose other than those which have been specifically indicated. While prescribing physicians are encouraged to gain medical information on any additional indications, they cannot obtain it from one of its most likely sources: the drug’s supplier. The Second Circuit Court of Appeals’ recent opinion in United States v. Caronia has …

Navigating Through The Fog Of Vertical Merger Law: A Guide To Counselling Hospital-Physician Consolidation Under The Clayton Act, Thomas L. Greaney, Douglas Ross

Washington Law Review

Lawyers assessing legality under the antitrust laws of hospital acquisitions of physician practices face a quandary. The case law is sparse, federal enforcement guidance outdated, and academic input conflicting. Applying these muddled standards in the rapidlyevolving health care sector only magnifies the uncertainty. While most transactions will be competitively neutral or beneficial, rapidly evolving market conditions causing integration between hospitals and physicians present opportunities for consolidations that may harm consumer interests. Indeed, given the highly concentrated structure of many hospital markets in the nation, preemptive acquisitions of physician practices may be a tempting strategy for some to undermine competition. This …

Buyer Power And Healthcare Prices, John B. Kirkwood

Washington Law Review

One major reason why healthcare spending is much higher in America than in other countries is that our prices are exceptionally high. This Article addresses whether we ought to rely more heavily on buyer power to reduce those prices, as other nations do. It focuses on two sectors where greater buyer power could easily be exercised: prescription drugs covered by Medicare and hospital and physician services covered by private insurance. The Article concludes that the biggest buyer of all, the federal government, should be allowed to negotiate Medicare prescription drug prices. This would likely reduce the prices of many branded …

Hospital Mergers And Economic Efficiency, Roger D. Blair, Christine Piette Durrance, D. Daniel Sokol

Washington Law Review

Consolidation via merger both from hospital-to-hospital mergers and from hospital acquisitions of physician groups is changing the competitive landscape of the provision of health care delivery in the United States. This Article undertakes a legal and economic examination of a recent Ninth Circuit case examining the hospital acquisition of a physician group. This Article explores the Saint Alphonsus Medical Center-Nampa Inc. v. St. Luke’s Health System, Ltd. (St. Luke’s) decision—proposing a type of analysis that the district court and Ninth Circuit should have undertaken and that we hope future courts undertake when analyzing mergers in the health care …

Buyers In The Baby Market: Toward A Transparent Consumerism, June Carbone, Jody Lyneé Madeira

Washington Law Review

This Article assesses the forces on the horizon remaking the fertility industry, including greater consolidation in the health care industry, the prospects for expanding (or contracting) insurance coverage, the likely sources of funding for future innovation in the industry, and the impact of globalization and fertility tourism. It concludes that concentration in the American market, in contrast with other medical services, may not necessarily raise prices, and price differentiation may proceed more from fertility tourism than from competition within a single geographic region. The largest challenge may be linking those who would fund innovation, whether innovation that produces new high …

Hospital Mergers And Economic Efficiency, Roger D. Blair, Christine Piette Durrance, D. Daniel Sokol

Washington Law Review

Consolidation via merger both from hospital-to-hospital mergers and from hospital acquisitions of physician groups is changing the competitive landscape of the provision of health care delivery in the United States. This Article undertakes a legal and economic examination of a recent Ninth Circuit case examining the hospital acquisition of a physician group. This Article explores the Saint Alphonsus Medical Center-Nampa Inc. v. St. Luke’s Health System, Ltd. (St. Luke’s) decision—proposing a type of analysis that the district court and Ninth Circuit should have undertaken and that we hope future courts undertake when analyzing mergers in the health care …

Buyers In The Baby Market: Toward A Transparent Consumerism, June Carbone, Jody Lyneé Madeira

Washington Law Review

This Article assesses the forces on the horizon remaking the fertility industry, including greater consolidation in the health care industry, the prospects for expanding (or contracting) insurance coverage, the likely sources of funding for future innovation in the industry, and the impact of globalization and fertility tourism. It concludes that concentration in the American market, in contrast with other medical services, may not necessarily raise prices, and price differentiation may proceed more from fertility tourism than from competition within a single geographic region. The largest challenge may be linking those who would fund innovation, whether innovation that produces new high …

The Law, Economics, And Medicine Of Off-Label Prescribing, William S. Comanor, Jack Needleman

Washington Law Review

There is a major dissonance in the current structure of regulating new drugs that have more than one medical indication. Physicians are authorized to prescribe these drugs for all indications including those beyond their approved purposes. However, product manufacturers are expressly prohibited from marketing or promoting their drugs for any purpose other than those which have been specifically indicated. While prescribing physicians are encouraged to gain medical information on any additional indications, they cannot obtain it from one of its most likely sources: the drug’s supplier. The Second Circuit Court of Appeals’ recent opinion in United States v. Caronia has …

A Flexible Health Care Workforce Requires A Flexible Regulatory Environment: Promoting Health Care Competition Through Regulatory Reform, Andrew I. Gavil, Tara Isa Koslov

Washington Law Review

Effective competition policy is critical to the success of U.S. health care reform, including efforts to reduce health care costs, increase quality of care, and expand access to health care services. While promoting competition is necessary at every level of the rapidly evolving health care system, it is particularly important with respect to licensed professionals who provide health care services. This Article argues that the current system of health care professional regulation, born of the last century, is in numerous respects an impediment to the kinds of changes needed to fully unleash the benefits of competition among different types of …

Dr. Jekyll's Waiver Of Mr. Hyde's Right To Refuse Medical Treatment: Washington's New Law Authorizing Mental Health Care Advance Directives Needs Additional Protections, Nick Anderson

Washington Law Review

Mental health care advance directives are gaining popularity nationwide. Following a growing trend, the Washington State Legislature has recently passed a law allowing patients to draft mental health care advance directives that could be irrevocable. Patients who sign an irrevocable directive essentially waive their fundamental right to refuse treatment in the future. The United States Supreme Court has held that waivers of fundamental rights must be made knowingly, voluntarily, and intelligently. However, as passed, Washington's new law contains insufficient safeguards to guarantee such a waiver. This Comment proposes that the Washington State Legislature amend this law to require two additional …

Conundrums With Penumbras: The Right To Privacy Encompasses Non-Gamete Providers Who Create Preembryos With The Intent To Become Parents, Lainie M.C. Dillon

Washington Law Review

To date, five state high courts have resolved disputes over frozen preembryos. These disputes arose during divorce proceedings between couples who had previously used assisted reproduction and cryopreserved excess preembryos. In each case, one spouse wished to have the preembryos destroyed, while the other wanted to be able to use or donate them in the future. The parties in these cases invoked the constitutional right to privacy to argue for dispositional control over the preembryos; two of the five cases were resolved by relying on this right. The constitutional right to privacy protects intimate decisions involving procreation, marriage, and family …

No "Dilettante Affair": Rethinking The Experimental Use Exception To Patent Infringement For Biomedical Research Tools, Janice M. Mueller

Washington Law Review

Scientists who require multiple "research tools" (i.e., laboratory resources such as transgenic animals and biological receptors) to develop new drugs and medical diagnostic products are frequently finding that these tools are patented or subject to other proprietary constraints. Stacking royalty obligations and heightened transaction costs resulting from the proliferation of patents on research tools threaten to slow or stop the development of new drugs and devices critical to public health. Because U.S. courts have very narrowly interpreted the common law "experimental use" defense of patent law as limited to "dilettante" uses of inventions for mere "amusement" or "philosophical" inquiry, scientists …

Doctoring Prescriptions: Federal Barriers To Combating Prescription Drug Fraud Against On-Line Pharmacies In Washington, Eric M. Peterson

Washington Law Review

Prescription drug abuse represents a significant portion of drg abuse in the United States. Drug-seeking individuals alter, steal, or forge prescriptions to sustain their own dependence on prescription medications or to divert the drugs to sell to others at inflated rates. On-line pharmacies are a relatively new source for prescription medications and a potential target for prescription drug fraud. The federal government recently enacted the Electronic Signatures in Global and National Commerce Act (E-SIGN), which governs electronic signatures and preempts inconsistent provisions of state laws, such as the Washington Electronic Authentication Act (WEAA). WEAA is a legal framework that could …

Sex Discrimination And Insurance For Contraception, Sylvia A. Law

Washington Law Review

Unintended pregnancy is a serious problem in the United States. Most private insurance plans do not pay for contraception even though they pay for other prescription drugs and devices. This Article argues that this pattern constitutes sex discrimination and is prohibited by Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. It discusses the reasons this issue has been neglected and suggests ways federal and state officials might remedy this common form of gender discrimination.

Preventing Insider Misappropriation Of Not-For-Profit Health Care Provider Assets: A Federal Tax Law Prescription, John F. Coverdale

Washington Law Review

Not-for-profit health care providers are converting to for-profit status on an unprecedented scale. Directors and officers have too frequently taken advantage of the conversions to misappropriate the organizations' assets. Common law remedies have proven inadequate, and many states have no specific statutory remedies. The state statutory remedies that have been enacted range from fairly comprehensive to quite inadequate. Not-for-profit health providers are generally also subject to the federal tax rules governing tax-exempt organizations. Until recently, however, the only sanction available to the Internal Revenue Service (IRS) was to revoke the organization's tax-exempt status. The IRS rarely invoked this remedy both …

Emergency Care And Managed Care—A Dangerous Combination, Diane E. Hoffman

Washington Law Review

Managed care plan subscribers in need of emergency medical treatment often face unduly restrictive plan practices. These practices may result in life-threatening injury or significant financial obligations on the part of plan subscribers. They are the result of a managed health care system that is inadequately regulated and overly concerned with cost control. Economic incentives lead plans to deny approval for emergency medical treatment or to deny retroactively coverage for such treatment. Emergency medical providers also are harmed by these practices, often forced to treat patients under federal law but denied payment for their services. This Article describes this problem …

Immigrants, Immigration Law, And Tuberculosis, Sana Loue

Washington Law Review

Current U.S. immigration law provides for the exclusion of all aliens who are "determined ... to have a communicable disease of public health significance. In addition to numerous sexually transmitted diseases such as infectious syphilis and gonorrhea, "communicable diseases of public health significance" include infectious tuberculosis and human immunodeficiency virus (HIV). The first portion of this Article provides a brief overview of the history and epidemiology of tuberculosis, as well as the diagnosis and management of the disease. The Article next reviews current information on tuberculosis in immigrant populations and proceeds to a discussion of U.S. immigration processes relating to …

When Antitrust Fails: Public Health, Public Hospitals, And Public Values, Michael S. Jacobs

Washington Law Review

In the past few years, large operating deficits have led governmental authorities in several major cities to close, sell, or substantially reduce the services of their public hospitals.' These decisions portend the arrival of what the New York Times has called a "looming crisis" in health care for the urban poor and uninsured. Should this crisis unfold, many public health programs are likely to be casualties, including those designed to treat and prevent the spread of communicable disease. Among others, programs aimed at the so-called "new" (multidrug resistant) tuberculosis are especially vulnerable to these compelling budgetary constraints. Poor urban populations …

Legislative Reform Of Washington's Tuberculosis Law: The Tension Between Due Process And Protecting Public Health, Lisa A. Vincler, Deborah L. Gordon

Washington Law Review

This Article examines the tension between protecting public health in light of personal liberty interests in the context of these :recent reforms. Legislative reform was initiated based on changes in the nature of TB itself. Part II of the Article briefly examines the nature of TB and its new, multidrug resistant strains as well as its local and global incidence. The transmissibility of TB from a clinical (medical) perspective is discussed because the modes of transmission are critical to determining the nature of the public health risk. The clinical relationship between TB and the human immunodeficiency virus (HIV) is noted, …