Law Commons^™

The Aging Services Network: Serving A Vulnerable And Growing Elderly Population In Tough Economic Times, Carol O'Shaughnessy

National Health Policy Forum

In 1965, Congress enacted the Older Americans Act, establishing a federal agency and state agencies to address the social services needs of the aging population. The mission of the Older Americans Act is broad: to help older people maintain maximum independence in their homes and communities and to promote a continuum of care for the vulnerable elderly. In successive amendments, the Act created area agencies on aging and a host of social support programs. The "aging services network," broadly described, refers to the agencies, programs, and activities that are sponsored by the Older Americans Act. The Act’s funding for services …

The Anti-Injunction Act And The Individual Mandate, Steve R. Johnson

Scholarly Publications

The Supreme Court will soon consider challenges to constitutionality of the so-called individual mandate portion of the Patient Protection and Affordable Care Act of 2010 (PPACA). It is important for the nation that the Court render a decision on the merits. This could be derailed, however, were the Court to dispose of the case by holding that the Anti-Injunction Act (AIA) and the Declaratory Judgment Act (DJA) preclude pre-enforcement review. Disposition on those grounds would subject the federal government, states, businesses, and individuals to years of additional uncertainty, inconvenience, and expense.

Fortunately, that threat to resolution on the merits can …

Federalizing Medicaid, Nicole Huberfeld

Law Faculty Scholarly Articles

This Article is one of only a small number of proposals over the past forty-six years for federalizing Medicaid. None of these proposals has grappled directly with the reasons that Medicaid does not satisfy federalism goals, and thus a key reason for modernizing Medicaid’s structure has been ignored. Despite being an area of “traditional state concern,” healthcare should no longer be left to the economic and political whims of the states, as Medicaid is not an effective Brandeisian “laboratory of the states.” Admittedly, some would oppose centralization on the ideological grounds that more federal government power is bad, and more …

Securing Sovereign State Standing, Katherine Mims Crocker

Faculty Publications

No abstract provided.

Hipaa Compliance Resources, Paul M. Birch

Law Faculty Publications

As health care consumers, attorneys may need no introduction to the Health Insurance Portability and Accountability Act of 1996 (HIPAA). It may have introduced itself to you already in the form of a refused request for your spouse’s pharmacy receipts without signed authorization, or lengthier patient information forms to fill out before seeing a new doctor. On the other hand, the legislation may have facilitated your own access to your personal health records that otherwise would have been denied, or shielded those records from public disclosure by deterring a mass data spill. Along with establishing portability requirements for employee health …

The Triumph And Tragedy Of Tobacco Control: A Tale Of Nine Nations, Eric A. Feldman, Ronald Bayer

All Faculty Scholarship

The use of law and policy to limit tobacco consumption illustrates one of the greatest triumphs of public health in the late twentieth and early twenty-first centuries, as well as one of its most fundamental failures. Overall decreases in tobacco consumption throughout the developed world represent millions of saved lives and unquantifiable suffering averted. Yet those benefits have not been equally distributed. The poor and the undereducated have enjoyed fewer of the gains. In this review, we build on existing tobacco control scholarship and expand it both conceptually and comparatively. Our focus is the social gradient of smoking both within …

Federalizing Medicaid, Nicole Huberfeld

Faculty Scholarship

Medicaid fosters constant tension between the federal government and the states, and that friction has been exacerbated by its expansion in the Patient Protection and Affordable Care Act of 2010 (PPACA). Medicaid was an under-theorized and underfunded continuation of existing programs that retained two key aspects of welfare medicine as it developed: bias toward limiting government assistance to the “deserving poor,” and delivery of care through the states that resulted in a strong sense of states’ rights. These ideas regarding the deserving poor and federalism have remained constants in the program over the last forty-six years, but PPACA changes one …

Sex, Privacy And Public Health In A Casual Encounters Culture, Mary D. Fan

Articles

The regulation of sex and disease is a cultural and political flashpoint and recurring challenge that law's antiquated arsenal has been hard- pressed to effectively address. Compelling data demonstrate the need for attention—for example, one in four women aged fourteen to nineteen is infected with at least one sexually transmitted disease ("STD"); managing STDs costs an estimated $15.9 billion annually; and syphilis, once near eradication, is on the rise again, as are the rates of HIV diagnosis among people aged fifteen to twenty-four. Public health officials on the front lines have called for paradigm changes to tackle the enormous challenge. …

End-Of-Life Decision-Making In Canada: The Report By The Royalsociety Of Canada Expert Panel On End-Of-Life Decision-Making, Udo Schüklenk, Johannes J. M. Van Delden, Jocelyn Downie, Sheila A. M. Mclean, Ross Upshur, Daniel Weinstock

Reports & Public Policy Documents

This report on end-of-life decision-making in Canada was produced by an international expert panel and commissioned by the Royal Society of Canada. It consists of five chapters.

Chapter 1 reviews what is known about end-of-life care and opinions about assisted dying in Canada.

Chapter 2 reviews the legal status quo in Canada with regard to various forms of assisted death.

Chapter 3 reviews ethical issues pertaining to assisted death. The analysis is grounded in core values central to Canada's constitutional order.

Chapter 4 reviews the experiences had in a number of jurisdictions that have decriminalized or recently reviewed assisted dying …

Seven-Sky V. Holder - Dc Circuit Opinion, United States Court Of Appeals For The District Of Columbia Circuit

Patient Protection and Affordable Care Act Litigation

No abstract provided.

The Benefits Of Opt-In Federalism, Brendan S. Maher

Faculty Scholarship

The Affordable Care Act (“ACA”) is a controversial and historic statute that mandates people make insurance bargains. Unacknowledged is an innovative mechanism ACA uses to select the law that governs those bargains: opt-in federalism.

Opt-in federalism – in which individuals choose between federal and state rules – is a promising theoretical means to make and choose law. This Article explains why, and concludes that the appeal of opt-in federalism is independent of ACA. Whatever the statute’s constitutional fate, future policymakers should consider opt-in federalist approaches to answer fundamental but exceedingly difficult questions of health and retirement law.

Combating Antibiotic Resistance Through The Health Impact Fund, Kevin Outterson, Thomas Pogge, Aidan Hollis

Faculty Scholarship

The Health Impact Fund (Hollis & Pogge 2008) is an innovative financing mechanism for global drug discovery and dissemination, separating the reward for successful R&D from the market price of the drug, also known as de-linkage. Aaron Kesselheim and Kevin Outterson have recently proposed a mechanism to reimburse companies for antibiotics according to their social value, but conditioned on achieving conservation goals to limit resistance (Kesselheim & Outterson 2010, 2011). This paper will explore whether this antibiotic resistance conservation proposal can be adapted to the framework of the Health Impact Fund. If these proposals can be meshed, then antibiotics might …

Guantánamo Bodies: Law, Media, And Biopower, Cary Federman, Dave Holmes

Department of Justice Studies Faculty Scholarship and Creative Works

The idea of the Guantánamo detainee as a Muselmann, the lowest order of concentration camp inmates, contains within it important implications for the new understanding of sovereignty in the era of Guantánamo, in an age of exception. The purpose of this article is to explain the status of those who are detained at Guantánamo Bay. Stated broadly, in assessing that status, we will emphasize the connection between the altered meaning of sovereignty that has accompanied the placing of prisoners in an American penal colony in Cuba and the biopolitical status of the prisoners who reside there. More particularly, we …

Health Law Outlook - Volume 5, Issue 1 (Fall 2011)

Health Law Outlook (archive)

Inside this issue:

• Donor Leaves Acts: Protecting Employees Who Choose to Give the Gift of Life, Lauren Glozzy
• Overcrowded U.S. Prisons and Mentally Ill Offenders: Moving to a Model of Rehabilitation, Jessical Huening
• A Prescription for Change: Holding Brand Manufacturers Liable for Deficient Warnings on Generic Drugs, Jonathan Keller
• Penalties for Federal Health Privacy Violations: Are They Sufficiently Enforced?, Anthony W. Liberatore
• Punishment, Prevention, Protection and the Challenge of Diagnosing Mental Disorders, Ben Smith
• Medical Legal Partnerships, Sarah Turk

Mid-Atlantic Ethics Committee Newsletter, Fall 2011-Winter 2012

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.

From 'Barbarity' To Regularity: A Case Study Of 'Unnecesarean' Malpractice Claims, Jamie Abrams

Articles in Law Reviews & Other Academic Journals

This paper is a case study from “barbarity” to “regularity” examining comparatively the first ever “unnecesarean” lawsuit arising out of an 1858 cesarean section malpractice case next to a modern forced cesarean section malpractice suit. It positions the modern “unnecessarean” epidemic, in which 30% of births today are by cesarean section, in a historical medical malpractice context. This case study primarily examines a controversial 1858 lawsuit arising out of the first documented cesarean section performed by the revered Dr. Elias Cooper in California. The surgery left Mary Hodges’s bladder, womb, and intestines permanently fused together and left her permanently disfigured. …

Newsletter Fall & Winter 2011

Newsletter

No abstract provided.

Improving The Population’S Health: The Affordable Care Act And The Importance Of Integration, Lorian E. Hardcastle, Katherine L. Record, Peter D. Jacobson, Lawrence O. Gostin

O'Neill Institute Papers

Heath care and public health are typically conceptualized as separate, albeit overlapping, systems. Health care’s goal is the improvement of individual patient outcomes through the provision of medical services. In contrast, public health is devoted to improving health outcomes in the population as a whole through health promotion and disease prevention. Health care services receive the bulk of funding and political support, while public health is chronically starved of resources. In order to reduce morbidity and mortality, policymakers must shift their attention to public health services and to the improved integration of health care and public health. In other words, …

The Fda, Preemption, And Public Safety: Antiregulatory Effects And Maddening Inconsistency, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Most people think of preemption as a technical constitutional doctrine, but it is pivotally important to health and safety, while also opening the door to broad judicial discretion. The Rehnquist and Roberts Courts’ pro-business/pro-preemption jurisprudence is distinctly antiregulatory, invalidating major state public health rules, such as in occupational safety, tobacco control, and motor vehicle safety. Apart from the antiregulatory effects, there is maddening inconsistency. Consider three relatively recent Supreme Court cases. In Riegel v. Medtronic, Inc. (2008), the Court held that federal law bars injured consumers from challenging the safety or effectiveness of FDA-approved medical devices. A year later, …

The Path Between Sebastian's Hospitals: Fostering Reconciliation After A Tragedy, Jonathan R. Cohen

UF Law Faculty Publications

On October 8, 2007, Horst and Luisa Ferrero brought their healthy but short, three-year-old son Sebastian to a university hospital for a “routine” test to determine whether he lacked human growth hormone. Two days later, following a tragic string of errors, Sebastian was pronounced brain dead. Approximately two weeks later, the hospital offered a detailed public apology to the parents for Sebastian’s death. Several months after the apology, the parents began working collaboratively with the hospital to improve patient safety at the hospital and to advocate for a new children’s hospital in their community. This paper is a case study …

Mandatory Hpv Vaccination And Political Debate, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Vaccinations are among the most cost-effective and widely used public health interventions, but have provoked popular resistance, with compulsion framed as an unwarranted state interference. When the FDA approved a human papillomavirus (HPV) vaccine in 2006, conservative religious groups strongly opposed a mandate, arguing it would condone pre-marital sex, undermine parental rights, and violate bodily integrity. Yet, Governor Rick Perry signed an executive order in 2007 making Texas the first state to enact a mandate — later revoked by the legislature.

Mandatory HPV vaccination reached the heights of presidential politics in a recent Republican debate. Calling the vaccine a "very …

Individual And Small-Group Market Health Insurance Rate Review And Disclosure: State And Federal Roles After Ppaca, Kathryn Linehan

National Health Policy Forum

Oversight of private insurance, including health insurance, is primarily a state responsibility. Each state establishes its own laws and regulations regarding insurer activities, including premium increases for the insurance products within its purview. The authority that state regulators have to review and deny requests for premium changes varies from state to state, as do the amount of resources available to state insurance departments for reviewing premium changes. In some markets where insurers have proposed or implemented steep increases, such changes have received considerable attention from the press, state regulators, and policymakers. The Patient Protection and Affordable Care Act (PPACA) requires …

Aligning Graduate Medical Education With Public Policy, Rob Cunningham

National Health Policy Forum

In late May–early June 2011, the Forum sponsored a site visit to Denver, Colorado, to observe innovative efforts to improve the health of Coloradans and reduce the cost of health care. The three-day agenda was designed to convey the breadth and interconnectedness of the efforts underway in Denver and to highlight both successes and challenges. The exploration concentrated on how three themes of national interest are unfolding in Denver: building and sustaining a robust and effective safety net in an evolving health care market; improving the health of people and their communities to prevent and reduce the need for health …

Kinder V. Geithner - American Association Of People With Disabilities Amicus Brief, American Association Of People With Disabilities

Patient Protection and Affordable Care Act Litigation

No abstract provided.

Kinder V. Geithner - Commonwealth Of Massachusetts Amicus Brief, Martha Coakley

Patient Protection and Affordable Care Act Litigation

No abstract provided.

Kinder V. Geithner - American Nurses Association Amicus Brief, American Nurses Association

Patient Protection and Affordable Care Act Litigation

No abstract provided.

Kinder V. Geithner - Constitutional Law Professors Amicus Brief, Jack M. Balkin, Gillian E. Metzger, Trevor W. Morrison

Patient Protection and Affordable Care Act Litigation

No abstract provided.

Kinder V. Geithner - Law Professors Amicus Brief, Barry Friedman, Matthew Adler

Patient Protection and Affordable Care Act Litigation

No abstract provided.

Kinder V. Geithner - Seiu And Change To Win Amicus Brief, Service Employees International Union, Change To Win

Patient Protection and Affordable Care Act Litigation

No abstract provided.

Kinder V. Geithner - Economic Scholars Amicus Brief, David Cutler

Patient Protection and Affordable Care Act Litigation

No abstract provided.