Law Commons^™

The Threat Of Smallpox: Eradicated But Not Erased: A Review Of The Fiscal, Logistical And Legal Obstacles Impacting The Phase I Vaccination Program, Holly L. Myers, Elin Gursky, Georges C. Benjamin, Christopher Gozdor, Michael Greenberger

Faculty Scholarship

Fears that terrorists may have the capabilities and intent to disseminate a variety of biologic agents has once again brought smallpox into the American consciousness. On December 13, 2002, recognizing that the global discontinuation of routine smallpox vaccination over two decades ago had left most Americans unprotected and vulnerable to the ravaging effects of the virus, the President announced a precautionary measure to begin vaccinating teams of emergency responders. The program commenced January 24, 2003. In the ensuing months, public health departments scrambled to meet the goal of vaccinating approximately 500,000 first responders, a protected phalanx that could quickly and …

Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum

ExpressO

The Eleventh Amendment of the United States Constitution provides that non-consenting states are not subject to suit in federal court. Congress may, however, abrogate the states’ sovereign immunity by enacting legislation to enforce the provisions of the Fourteenth Amendment. In Nevada Department of Human Resources v. Hibbs, the Supreme Court of the United States considered whether Congress acted within its constitutional authority by abrogating sovereign immunity under the Family and Medical Leave Act (FMLA), which allows private causes of action against state employers to enforce the FMLA’s family-leave provision. The Court held abrogation was proper under the FMLA and state …

Quality Improvement In Maryland: Partnerships And Progress, Judith D. Moore, Lisa Sprague

National Health Policy Forum

This one-and-a-half-day site visit to Easton, Maryland, explored the activities of the Delmarva Foundation, the Quality Improvement Organization (QIO) for Maryland and the District of Columbia. The program reviewed Delmarva’s responsibilities under their Medicare contract and the initiatives they have undertaken with hospitals and other providers to improve health care outcomes and to define, collect, and report quality data. Local hospital officials added their perspective on quality programs and working with Delmarva. Topics of particular interest were health information technology, patient safety, and quality reporting both to government agencies and to consumers.

On Kamisar, Killing, And The Future Of Physician-Assisted Death, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

In a famous 1958 article, Yale Kamisar brilliantly examined the hazards of abuse and of slippery slope extensions that subsequently, for 46 years, served to thwart legalization of physician-assisted death (PAD). This paper shows that during the same period law and culture have effectively accepted a variety of ways for stricken people to hasten death, with physicians involved in diverse roles. Those ways include rejection of nutrition and hydration, terminal sedation, administration of risky analgesics, and withholding or withdrawal of medical life support.

If these existing lawful modes of hastening death were widely acknowledged, the pressure to legalize voluntary active …

The New Neurobiology Of Severe Psychiatric Disorders And Its Implications For Laws Governing Involuntary Commitment And Treatment, E Fuller Torrey, Kenneth Kress

ExpressO

Medical advances have led to statutory changes and common law overrulings. This paper argues that such changes are now needed for laws governing the involuntary commitment and treatment of individuals with severe psychiatric disorders. Recent advances in the understanding of the neurobiology of these disorders have rendered obsolete many assumptions underlying past statutes and legal decisions. This is illustrated by using schizophrenia as an example and examining two influential cases: California’s Lanterman-Petris-Short Act (1969) and Wisconsin’s Lessard decision (1972). It is concluded that laws governing involuntary commitment and treatment need to be updated to incorporate the current neurobiological understanding of …

The Effects Of Copayments On The Use Of Medical Services And Prescription Drugs In Utah's Medicaid Program, Leighton Ku, Elaine Deschamps, Judi Hilman

Health Policy and Management Faculty Publications

In recent years, a number of states have increased cost-sharing for low-income Medicaid beneficiaries as one approach to Medicaid cost-containment. While copayments have been most commonly applied to prescription drugs, they also have been assessed for other services, such as physician visits, hospital admission, or outpatient clinic use.

Prior research has found that when low-income patients are required to pay more for health care services or for prescription drugs, they use fewer services or medications.[2] In some cases, their health could deteriorate, with the result that they may subsequently require more expensive emergency room or inpatient hospital care. While …

Table Of Contents

University of Richmond Law Review

No abstract provided.

Discoverability Of Healthcare Provider Policies And Incident Reports, Michael L. Goodman, Kathleen M. Mccauley, Suzanne S. Duvall

University of Richmond Law Review

No abstract provided.

The Provider System For Children's Mental Health: Workforce Capacity And Effective Treatment, Jane Koppelman

National Health Policy Forum

This issue brief examines two issues that are key to meeting children’s unmet needs for mental health care: ensuring that the provider supply is adequate and that the care delivered is effective. It describes the shortage of qualified providers to address children’s mental disorders, as well its possible causes; it describes how managed care, to a certain extent, drives practice patterns; and it discusses the gray areas in deciding which providers are most qualified to deliver what care. In addition, this paper introduces what is known about evidence-based care in children’s mental health, the extent to which it is being …

Obesity And Advertising Policy, Todd J. Zywicki, Debra Holt, Maureen Ohlhausen

George Mason University School of Law Working Papers Series

It is clear that Americans are getting fatter, both adults and children. This development has led some to call for a ban on food advertising directed at children. There are numerous practical and constitutional difficulties with such a policy. This article poses a more fundamental question - even if feasible, would restricting food advertising do anything to reduce obesity or even slow its trends? The article also considers whether the social costs of banning advertising could outweigh the social benefits of such an action.

This article provides a review of the literature on the fundamental causes of the American obesity …

Soft Negligence And Cause In Fact: A Comment On Ganuza And Gomez, Giuseppe Dari-Mattiacci

George Mason University School of Law Working Papers Series

Lowering the standard of negligence below the first-best socially optimal level has been shown by Ganuza and Gomez (2004) to increase the level of care taken by judgment proof injurers. In this paper, I consider a more complex model of negligence in which cause in fact is taken into account, and I show that this conclusion holds when the injurer’s care reduces the magnitude of the accidental harm but not when the injurer’s care reduces the probability of the accident. Thus, such soft negligence strategies aimed at tackling the adverse effects of judgment proofness need to be conditioned to the …

Providing Access To Generic Antiretroviral Drugs To People Living With Hiv/Aids In Developing Countries: An Examination Of Legal Obligations, Cheluchi Onyemelukwe

LLM Theses

The HIV/AIDS epidemic is a devastating medical, social and economic problem in many developing countries. Presently, the only therapeutic remedies for the disease are antiretroviral drugs, which do not cure HIV/AIDS but are effective in restoring the health of people living with HIV/AIDS. Unfortunately, these drugs are unavailable to many people living with the disease in developing countries. This has been attributed to the exorbitant prices resulting from the patent rights of multinational pharmaceutical companies over the drugs. Legal literature has therefore focused principally on intellectual property rights as obstacles to access to antiretroviral drugs in developing countries. This thesis, …

Tobacco Regulation Review, V. 3, No. 2, Oct. 2004

Tobacco Regulation Review

No abstract provided.

Internet Pharmacies: Why State Regulatory Solutions Are Not Enough, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

Internet pharmacies are an economic and communications miracle--and a regulatory nightmare. It is estimated that Americans spent some $3.2 billion in 2003 on medications from the Internet, but Internet pharmacies permit consumers to evade long-standing regulatory protections, particularly those that rely on the oversight of drug prescribing and dispensing by licensed physicians and pharmacists.

The Medicare Prescription Drug, Improvement, & Modernization Act Of 2003: Are We Playing The Lottery With Healthcare Reform?, Melissa Ganz

Duke Law & Technology Review

With millions of Americans unable to cope with the rising costs of prescription drugs, and many even forced to go without health insurance, the mounting pressure on Congress to enact major healthcare reform culminated in the Medicare Prescription Drug, Improvement, & Modernization Act of 2003. This iBrief examines this legislation, and concludes that it provides elusive benefits for seniors and merely creates a windfall for the pharmaceutical and insurance industries.

Electronic Health Records: How Close? How Far To Go?, Lisa Sprague

National Health Policy Forum

This paper looks at the central role of the electronic health record (EHR) in health information technology. It considers the extent to which EHRs are in use and initiatives designed to increase their prevalence, as well as barriers to the widespread adoption of EHRs and efforts to surmount them. Particular attention is given to such obstacles as cost, the professional culture of physicians, standardization, and legal questions.

Ancillary Joint Ventures And The Unanswered Questions After Revenue Ruling 2004-51, Gabriel O. Aitsebaomo

ExpressO

Ever since the Internal Revenue Service (the "Service") issued Revenue Ruling 98-15… in which it emphasized "control" as a critical factor in determining whether a tax-exempt hospital that enters into a whole-hospital joint venture with a for-profit entity would continue to maintain its tax-exemption, practitioners and scholars alike have sought guidance from the Service regarding whether such "control" would also be required of an exempt organization that enters into an "ancillary joint venture" with a for-profit entity. In response, the Service issued Revenue Ruling 2004-51 on May 6, 2004.

… In Revenue Ruling 2004-51, the Service enunciated that a tax-exempt …

Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris

University of San Diego Public Law and Legal Theory Research Paper Series

This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …

Competency To Stand Trial On Trial, Grant H. Morris, Ansar M. Haroun, David Naimark

University of San Diego Public Law and Legal Theory Research Paper Series

This Article considers the legal standards for the determination of competency to stand trial, and whether those standards are understood and applied by psychiatrists and psychologists in the forensic evaluations they perform and in the judgments they make–judgments that are routinely accepted by trial courts as their own judgments. The Article traces the historical development of the competency construct and the development of two competency standards. One standard, used today in eight states that contain 25% of the population of the United States, requires that the defendant be able to assist counsel in the conduct of a defense “in a …

Medicaid's Disproportionate Share Hospital Program: Complex Structure, Critical Payments, Robert E. Mechanic

National Health Policy Forum

This background paper describes the history and political evolution of Medicaid’s disproportionate share hospital (DSH) program and examines DSH as it exists today. It highlights the importance of DSH payments for the viability of safety net hospitals and considers the consequences of states’ creative financing strategies for maximizing federal Medicaid matching funds. Finally, this paper reviews several options for improving the structure and effectiveness of the DSH program.

Article 81 Enactment And Its Impact On The Aging Women Population, Jennifer G. Flannery

Buffalo Women's Law Journal

No abstract provided.

Murder In A Petri Dish? The Wrath Of Illinois' Miller V. American Infertility Group: A Push For Legislative Action, Maria Pellegrino

Buffalo Women's Law Journal

No abstract provided.

Law & Health Care Newsletter, V. 12, No. 1, Fall 2004

Law & Health Care Newsletter

No abstract provided.

Childhood Vaccinations And Autism: Does The National Childhood Vaccine Injury Act Leave Parents Of Children With Autism Out In The Cold With Nowhere To Go?, Katherine Marie Bulfer

Campbell Law Review

No abstract provided.

The Supreme Court's Limitation Of Managed-Care Liability, Wendy K. Mariner

Faculty Scholarship

This article summarizes and critiques the U.S. Supreme Court's decision in Aetna Health Inc. v. Davila, which limited managed care organizations' liability for negligent decisions about the care of patients in private employer-sponsored health plans governed by ERISA. It contrasts the Court's dichotomous view of health benefit plans, in which insurers administer contracts and treating physicians make medical judgments, with the more complicated relationships that affect decisions about both coverage and treatment.

The New Neurobiology Of Severe Psychiatric Disorders And Its Implications For Laws Governing Involuntary Commitment And Treatment, E Fuller Torrey, Ken Kress

ExpressO

Medical advances have led to statutory changes and common law overrulings. This paper argues that such changes are now needed for laws governing the involuntary commitment and treatment of individuals with severe psychiatric disorders. Recent advances in the understanding of the neurobiology of these disorders have rendered obsolete many assumptions underlying past statutes and legal decisions. This is illustrated by using schizophrenia as an example and examining two influential cases: California’s Lanterman-Petris-Short Act (1969) and Wisconsin’s Lessard decision (1972). It is concluded that laws governing involuntary commitment and treatment need to be updated to incorporate the current neurobiological understanding of …

Fundamentals Of Community Health Centers, Jessamyn Taylor

National Health Policy Forum

This background paper examines the dominant model of federal grant funding for primary care in the health care safety net: the community health center. It describes the history of the health center program and highlights key policy issues influencing health centers, such as Medicaid payment policies and medically underserved area designations. The paper also examines the recent presidential initiative to expand health centers, including a review of the process used to identify new grantees, an assessment of remaining gaps in capacity, an exploration of continuing challenges, and a discussion of unresolved policy questions.

A Report From The Forum Session "Implementing The New Medicare Drug Benefit: Challenges And Opportunities For States", Judith D. Moore

National Health Policy Forum

The National Health Policy Forum convened a meeting on July 22, 2004 to discuss state-based challenges associated with implementing the Medicare Prescription Drug, Improvement, and Modernization Act (MMA). The meeting brought together an extremely insightful and experienced group of current and former state officials and other experts to discuss key issues. In keeping with its tradition of promoting a frank, off-the-record exchange on health policy issues, NHPF does not normally prepare written summaries or reports of meetings. However, because this meeting provided vivid illustrations of the importance of state-federal collaboration for the successful implementation of the new Medicare drug benefit, …

Tick-Tock: Preparing For The Next Influenza Pandemic, Eileen Salinsky

National Health Policy Forum

This paper describes the nature of pandemic influenza and highlights key challenges for responding to this disease threat. It explains how an influenza pandemic would differ from annual influenza outbreaks and examines how a pandemic virus could emerge. It also explores important issues involved in pandemic preparedness capabilities, including disease surveillance, vaccine production and distribution, antiviral stockpiling, health care system readiness, and public health containment measures. The national pandemic preparedness plan is briefly reviewed, and unresolved policy issues related to the plan’s implementation are identified.

Fundamentals Of The Prescription Drug Market, Christie Provost Peters

National Health Policy Forum

This background paper is a primer on the prescription drug market. It provides information on the fundamentals of the pharmaceutical industry and various marketplace stakeholders, including manufacturers, retailers, consumers, regulators, researchers, and purchasers. This paper also examines the various ways the federal government interacts with the pharmaceutical market. Due to the breadth of material addressed, some complex issues and relationships are presented in broad conceptual terms without extensive technical detail.