Law Commons^™

Response To: A Telehealth Explosion: Using Lessons From The Pandemic To Shape The Future Of Telehealth Regulation, Joanna K. Sax

Faculty Scholarship

In A Telehealth Explosion: Using Lessons from the Pandemic to Shape the Future of Telehealth Regulation, published in the Texas A&M Law Review, Professor Deborah Farringer tackles the critical issue of the efficacy and implementation of telehealth, using our experience(s) of telehealth during the COVID–19 pandemic as the guide. This is important, as Professor Farringer acknowledges, because while telehealth advocates pre-date the pandemic, barriers prevented the implementation of telehealth in a widespread manner. These barriers included a concern about fraud and a question as to whether telehealth visits could provide effective outcomes compared to in-person visits. Professor Farringer …

Reducing Mass Incarceration: Lessons From The Deinstitutionalization Of Mental Hospitals In The 1960s, Bernard Harcourt

Faculty Scholarship

In a message to Congress in 1963, President John F. Kennedy outlined a federal program designed to reduce by half the number of persons in custody. The institutions at issue were state hospitals and asylums for the mentally ill, and the number of such persons in custody was staggeringly large, in fact comparable to contemporary levels of mass incarceration in prisons and jails. President Kennedy's message to Congress – the first and perhaps only presidential message to Congress that dealt exclusively with the issue of institutionalization in this country – proposed replacing state mental hospitals with community mental health centers, …

La Caja De Pandora: Improving Access To Hospice Care Among Hispanic And African-American Patients, Kathy L. Cerminara, Alina M. Perez

Faculty Scholarship

Many patients clinging to hope in the form of potentially curative treatment could benefit from hospice services, but, for the most part, it is not until the patient accepts the finality of his or her condition that the physical, psychological and social benefits of hospice care become accessible to the patient and his or her family. Under current Medicare regulations and other health care payers’ policies, patients must abandon the hope of curative treatment before opting for hospice services. As a result, many terminally ill patients access the services late, sometimes a few hours before death. Scholars have proposed that …

Clear Notice For Conditions On Spending, Unclear Implications For States In Federal Healthcare Programs, Nicole Huberfeld

Faculty Scholarship

This article explores an important case from the 2005-06 Supreme Court term, Arlington Central School District Board of Education v. Murphy. Murphy is a benchmark for Spending Clause jurisprudence, as the new Roberts Court adopted what was the dissenting view for years, but its significance has gone largely unnoticed. Additionally, Murphy may have critical implications for the federalism revolution and for the country's largest healthcare programs. These broad observations are focused in this article by the example of the Clawback Provision, a new Medicaid requirement that has been challenged by New Jersey, Texas, Maine, Missouri, and Kentucky. The Supreme Court …

The Three Faces Of Retainer Care: Crafting A Tailored Regulatory Response, Frank Pasquale

Faculty Scholarship

Retainer care arrangements allow patients to pay a fee directly to a physician's office in order to obtain special access to care. Practices usually convert to retainer status by concentrating their attention on a small panel and dropping the majority of their patients. Proponents call retainer care a triumph of consumer-directed health care; opponents deride it as boutique medicine. Both sides are deploying a variety of legal tactics in order to attain their goals.

After surveying these conflicts, this article clarifies what is at stake by analyzing the three key features of retainer care: preventive care, queue-jumping, and amenity-bundling. Most …

The Economics And Politics Of Emergency Health Care For The Poor: The Patient Dumping Dilemma, Maria O'Brien

Faculty Scholarship

As the numbers of uninsured mount⁴ because of job dislocations, exhaustion of benefits, and unaffordably high premiums, the incidence of "dumping" by private hospitals is, predictably, on the rise. Dumping occurs when a hospital, in violation of federal or state law, transfers an emergency patient to another (usually public) hospital or simply refuses any treatment based on the patient's inability to pay.5 In addition to the completely uninsured, favorite dumping targets include Medicare and Medicaid patients, AIDS patients, and cancer patients whose therapy may cost more than the maximum reimbursement under private insurance.

Dumping is merely a part of …

When Can The Government Issue A Retroactive Medicare Reimbursement Rule? A Preview Of Bowen V. Georgetown University Hospital, Robert L. Schwartz

Faculty Scholarship

The only issue before the Court is whether the Secretary of Health and Human Services can issue a regulation with entirely retroactive effect governing Medicare reimbursement for healthcare providers. The Court must decide whether such a retroactive rule is permitted by the Administrative Procedures Act (the "APA"), which defines a rule as "an agency statement of either general or particular applicability and future effect," or by the Medicare statute, which authorizes the Secretary to issue regulations to provide for the reimbursement of the "reasonable costs" of hospitals providing Medicare services.

When Must A Hospital Challenge The Medicare Reimbursement Policy?, Robert L. Schwartz

Faculty Scholarship

The Issue for the Court is whether the Medicare statute permits hospitals that do not formally request Medicare reimbursement for particular items in the cost reports filed with their fiscal intermediaries (who audit the reports) to seek reimbursement for those items when they appeal the fiscal intermediary's decision to the appropriate administrative board or court.