Law Commons^™

Patient Decision Aids Improve Patient Safety And Reduce Medical Liability Risk, Thaddeus Pope

Faculty Scholarship

Tort-based doctrines of informed consent have utterly failed to assure that patients understand the risks, benefits, and alternatives to the healthcare they receive. Fifty years of experience with the doctrine of informed consent have shown it to be an abject catastrophe. Most patients lack an even minimal understanding of their treatment options. But there is hope. Substantial evidence shows that patient decision aids (PDAs) and shared decision making can bridge the gap between the theory and practice of informed consent. These evidence-based educational tools empower patients to make decisions with significantly more knowledge and less decisional conflict than clinician-patient discussions …

The Means And Ends Of Wellness Programs, Laura D. Hermer

Faculty Scholarship

How far should we go in assigning individuals causal responsibility for their own health status and what should the implications of any such assignment be?

Few would deny that most adults have a major role in achieving and maintaining their own health. However, it is not at all clear where one should draw the line between what is freely chosen and what is determined by forces outside a person’s control. Medical care plays only a small role in most people’s overall health, and often social, environmental, and personal factors are far more important. Incentivizing an individual to take better care …

Skirting The Law: Medicaid Block Grants And Per-Capita Caps In A Pandemic, Laura D. Hermer

Faculty Scholarship

To what extent can an administration abridge Medicaid’s entitlement status by administrative fiat? In the final year of the Trump administration, just before the COVID-19 pandemic, the Centers for Medicare and Medicaid Services (CMS) sought to push the outer bounds of this question by announcing the Healthy Adult Opportunity (HAO) initiative. It invited states to submit § 1115 demonstration applications to cover individuals not eligible for Medicaid benefits under the state’ s Medicaid plan—meaning, in many cases, the Affordable Care Act’s (ACA’s) Medicaid expansion population. Spending on those populations would be capped, not by purporting to waive federal law regarding …

Independence Is The New Health, Laura D. Hermer

Faculty Scholarship

Medicaid plays key roles in supporting our nation’s health. Under the Affordable Care Act, Medicaid took an even more central position in public health endeavors by extending coverage in all interested states to millions of adults who typically fell through the health care cracks. Nevertheless, the Trump administration is now undoing these gains by actively encouraging states to curtail access to Medicaid in key respects while using the rhetoric of health.

This article examines Trump administration efforts in two contexts: (1) state § 1115 waiver applications seeking to better align their Medicaid programs with cash welfare and food stamp programs, …

What To Expect When You’Re Expecting…Tanf-Style Medicaid Waivers, Laura D. Hermer

Faculty Scholarship

Many health policy scholars believe that Medicaid, the federal-state coverage program for lower-income Americans, should remain free from welfare reform trappings such as work requirements that are extraneous to the program. It would seem such requirements would be both inappropriate and counterproductive to the goals of Medicaid. Given the high probability that such requirements will, at least at some level, go into effect during the Trump administration, it bears considering what to expect. What evidence, if any, suggests that imposing welfare reform-style requirements on certain Medicaid beneficiaries will yield harmful results to those beneficiaries, or harmful to Medicaid’s programmatic goal …

Unbefriended And Unrepresented: Better Medical Decision Making For Incapacitated Patients Without Healthcare Surrogates, Thaddeus Pope

Faculty Scholarship

How should we make medical decisions for incapacitated patients who have no available legally-authorized surrogate decision maker? Because these patients lack decision making capacity, they cannot authorize treatment themselves. Because they lack a surrogate, nobody else can authorize treatment either. Clinicians and researchers have referred to these individuals as “adult orphans” or as “unbefriended,” “isolated,” or “unrepresented” patients. Clinicians and researchers have also described them as “unimaginably helpless,” “highly vulnerable,” and as the “most vulnerable,” because “no one cares deeply if they live or die.”

The persistent challenges involved in obtaining consent for medical treatment on behalf of these individuals …

On The Expansion Of “Health” And “Welfare” Under Medicaid, Laura Hermer

Faculty Scholarship

Medicaid was intended from its inception to provide financial access to health care for certain categories of impoverished Americans. While rooted in historical welfare programs, it was meant to afford the "deserving" poor access to the same sort of health care that other, wealthier Americans received. Yet despite this seemingly innocuous and laudable purpose, it has become a front in the political and social battles waged over the last several decades on the issues of welfare and the safety net. The latest battleground pits competing visions of Medicaid. One vision seeks to transform Medicaid from a health care program into …

What To Expect At The Intersection Of Law And Social Work, Jada Fehn

Faculty Scholarship

Hamline University School of Law recently launched a medical-legal partnership (MLP) with United Family Medicine (UFM), a community clinic on West Seventh Street. UFM is a nonprofit provider of primary health care that strives to meet the needs of the medically uninsured, underinsured, and underserved residents of Saint Paul. One of the main components of the partnership is a law school clinic that will provide legal assistance and educate student attorneys as part of a holistic approach to medical care.

On The Uneasy Relationship Between Medicaid And Charity Care, Laura D. Hermer, Merle Lenihan

Faculty Scholarship

Medicaid and charity care have a lengthy relationship fraught with complications. These complications will remain and in some respects become even more acute following the implementation of the Patient Protection and Affordable Care Act.

This article focuses on the uneasy relationship between Medicaid and charity care, one that becomes particularly acute in the context of Medicaid reimbursement. It traces the lineage of Medicaid in charity, and uses Medicaid reimbursement and supplemental payments as lenses through which to examine the relationship between Medicaid and charity care. The tension that we uncover will need to be resolved if Medicaid is to come …

Rationalizing Home And Community-Based Services Under Medicaid, Laura Hermer

Faculty Scholarship

This article examines efforts states are making to expand access to community-based services for elderly and disabled Medicaid beneficiaries and suggests several options that might improve such access nationally. Like much of Medicaid, Medicaid long term services and supports (LTSS) have developed through a complex process of accretion. Policymakers appear only rarely to have considered an overarching view of such services and the needs of those who require them. Rationalizing Medicaid LTSS will accordingly require not only additions but also substantial pruning, and may even warrant a reconsideration of who should have ultimate authority to develop and direct such services. …

Standards For Health Care Decision-Making: Legal And Practical Considerations, A. Kimberley Dayton

Faculty Scholarship

This Article explores the guardian’s role in making, or assisting the ward to make, health care decisions, and provides an overview of existing standards and tools that offer guidance in this area. Part II outlines briefly the legal decisions and statutory developments assuring patient autonomy in medical treatment, and shows how these legal texts apply to and structure the guardian’s role as health care decision-maker. Part III examines the range of legal and practical approaches to such matters as decision-making standards, determining the ward’s likely treatment preferences, and resolving conflicts between guardians and health care agents appointed by the ward. …

The Assault On Bad Food: Tobacco-Style Litigation As An Element Of The Comprehensive Scheme To Fight Obesity, Jada Fehn

Faculty Scholarship

This article provides a summary of the obesity epidemic - the economic costs and importantly, some causes. The need for a comprehensive scheme will be explained by examining the shortfalls of current regulatory mechanisms. Next, this article will explain the three waves of tobacco litigation, the strategy involved in each, and why the third wave left an impact. Then, the current status of food litigation will be explained. Next, applying the tobacco model to big food, this article will make it clear that discovery is crucial in several respects. Lastly, an explicit call to action and a battle plan will …

Beyond Bidil: The Expanding Embrace Of Race In Biomedical Research And Product Development, Jonathan Kahn

Faculty Scholarship

In 2005 the FDA approved BiDil, the first drug ever to include a race-specific indication on its label - to treat heart failure in a “black” patient. In the aftermath of this controversial approval and subsequent marketing of the drug, many have wondered whether BiDil was an anomaly or a harbinger of things to come. This article moves beyond BiDil to explore how similar yet distinct models are developing for the continuing exploitation of race in biomedical practice and product development. It will explore the tensions embedded in the persistent use of racial categories even as specific genetic variations linked …

The Scapegoat: Emtala And Emergency Department Overcrowding, Laura Hermer

Faculty Scholarship

Part I of this article briefly discusses the Emergency Medical Treatment and Active Labor Act's salient provisions. Part II examines the history of emergency care and changes in healthcare organization and finance affecting the provision of charity care-topics which are significant in unraveling the alleged effects EMTALA has had on the healthcare system. Part III examines policy issues raised by EMTALA within our present system of health insurance and healthcare organization and finance.

This article reaches two conclusions. First, EMTALA, while a poor and archaic fit with our present system of healthcare delivery and finance, in fact has helped to …

How A Drug Becomes ‘Ethnic’: Law, Commerce, And The Production Of Racial Categories In Medicine, Jonathan Kahn

Faculty Scholarship

A drug called BiDil is poised to become the first drug ever approved by the Food and Drug Administration (FDA) to treat heart failure in African Americans - and only African Americans. This article explores the story of BiDil and considers some of its broader implications for the use of racial categories in law, medicine, and science. It argues that BiDil is an ethnic drug today as much, if not more because of the interventions of law and commerce as because of any biomedical considerations. The article is, first, a retrospective analysis of how law, commerce, science, and medicine interacted …

Access To Health Care In Texas: A Patient-Centered Perspective, Laura Hermer, William J. Winslade

Faculty Scholarship

Access to health coverage in Texas is, and continues to be, an urgent policy issue. This article provides an overview and evaluation of the primary state- or local-based and private financial means through which Texans gain access to health care, and offers suggestions to the Texas Legislature to help improve coverage access.

Midwifery: Strategies On The Road To Universal Legalization, Laura Hermer

Faculty Scholarship

Multiple studies have shown that direct-entry midwifery is just as safe, if not safer than, medical care in low-risk childbirth. Most births using direct-entry midwives require fewer interventions than those attended by physicians, yet yield excellent results. The results of these studies indicate that we should return to midwifery for normal births, rather than continuing to rely primarily on medicine. This option, however, has been significantly curtailed by many state legislatures and courts, despite decades of attempts to make incursions on the traditional paradigm of hospital births attended by obstetricians. As a result, where midwifery is more readily available, it …

Municipal Home Rule In New York: Tobacco Control At The Local Level,, Laura Hermer

Faculty Scholarship

This paper will examine the nature and scope of the ability of both municipalities and local public health departments to govern the local sale, use, availability and advertising of tobacco products in the context of New York state law and the recent Multistate Settlement Agreement.

Part I will begin with a description of municipalities in New York and a summary of the provisions of article 9 of the New York Constitution and section 10 of the state Municipal Home Rule Law, which delimit spheres in which municipalities may act without state interference and others in which the state may act …

Feeding The Permanently Unconscious And Terminally Ill Or Dying Is Not Always Compassion, Phebe Saunders Haugen

Faculty Scholarship

A surrogate decision maker may conclude that efforts to mechanically provide liquid nourishment would cause considerable suffering in return for little gain. But such a decision is unquestionably one that can produce great conflict for families and for medical caregivers. Assessment must be made of each patient's situation and of the benefits and burdens that will result if tube feeding is withheld or withdrawn. It may well be, however, that in some cases, the most humane and compassionate treatment for a patient is the withdrawal of all technological interventions, including those that supply nourishment.

Aids And The Law: Setting And Evaluating Threshold Standards For Coercive Public Health Intervention, Eric S. Janus

Faculty Scholarship

This article examines in detail an example of legislation that redefines the scope of permissible public health intervention and provides procedural protections compatible with modern precedent—the Minnesota Health Threat Procedures Act. This Act is an appropriate subject for close study because it is intended to be responsive to the general concerns raised by the commentators: the narrowing redefinition of the scope of coercive public health intervention and the addition of suitable procedural protections. Coercive public health legislation merits close attention because it inevitably invokes a clash of three important values. The purpose of the legislation is the protection of the …