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 …

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 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 …

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 …

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.

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.

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.

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

Law & Health Care Newsletter

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.

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.

The Supreme Court Limits Lawsuits Against Managed Care Organizations, Timothy Stoltzfus Jost

Scholarly Articles

In Aetna Health Inc. v. Davila, the United States Supreme Court revisited the question of whether the Employee Retirement Income Security Act (ERISA) precludes state lawsuits against ERISA plans. The Court held that ERISA preempts damage actions brought against managed care organizations under the Texas Health Care Liability Act because ERISA itself provides the exclusive remedy for challenging ERISA plans' coverage decisions. The Court suggested, however, that health plans might be liable for treatment decisions made by employed physicians. It also volleyed back to Congress the question of whether ERISA beneficiaries should have any remedy for damages caused by coverage …

The Promise And The Reality Of Long-Term Care Insurance, Randy Desonia

National Health Policy Forum

The aging of the nation’s population will create a surge in the need for long-term care services, putting pressure on existing funding sources and fueling demand for more. This paper examines one financing option—private long-term care insurance—and summarizes its brief history and the several critical precedents that have influenced the products as currently sold. Other topics discussed include the challenges to encouraging sales growth as well as increasing the role of this type of insurance in paying for long-term care.

Mid-Atlantic Ethics Committee Newsletter, Fall 2004

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.

Mid-Atlantic Ethics Committee Newsletter, Summer 2004

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.

Liability For Life, Carl E. Schneider

Articles

Marshall Klavan headed the Obstetrics and Gynecology Department of the Crozer-Chester Medical Center. He deeply feared strokes, perhaps because his father had been savaged by one. In 1993, Dr. Klavan wrote an advance directive which said that (as a court later put it) "he 'absolutely did not want any extraordinary care measures utilized by health care providers.'" On April29, 1997, Dr. Klavan tried to kill himsel£ He left suicide notes and a note refusing resuscitation. The next morning, medical center employees found him unconscious and took him to the emergency room, where he was resuscitated. By May 2, Dr. Klavan …

The Relation Between Autonomy-Based Rights And Profoundly Disabled Persons, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

“The Relation Between Autonomy-based Rights and Profoundly Mentally Disabled Persons” Competent persons have fundamental rights to decide about abortion, methods of contraception, and rejection of life-sustaining medical treatment. Profoundly disabled persons are so cognitively impaired that they cannot make their own serious medical decisions. Yet some courts suggest that the mentally impaired are entitled to “the same right” to choice regarding critical medical decisions as competent persons. This article discusses the puzzling question of how to relate autonomy-based rights to never-competent persons. It argues that while profoundly disabled persons cannot be entitled to make their own medical decisions, they have …

The Bane Of Surrogate Decision Making: Defining The Best Interests Of Never-Competent Persons, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

The medical fate of never-competent persons cannot be resolved according to the approach governing previously competent persons -- surrogate focus on self-determination via advance instructions or projections of what the now-incompetent person would want in the circumstances. For never-competent medical patients, the commonly stated approach to surrogate decision making is best interests of the incapacitated ward.

This article examines and questions the conventional wisdom regarding a "best interests of the patient" standard. When a parent is the surrogate decision maker, the medical course chosen need not be the best course, so long as it is a plausible medical option and …

Medicaid Prescription Drug Spending And Use, Brian Bruen, Arunabh Ghosh

Health Policy and Management Issue Briefs

No abstract provided.

The Economics Of Quality: Changing Incentives In Cincinnati, Lisa Sprague, Nora Super

National Health Policy Forum

This site visit focused on private market dynamics and quality improvement initiatives. Cincinnati is characterized by strong players in all sectors of the market: employers such as Procter and Gamble and General Electric, hospital systems, health plans, and physician groups with the power to “push back” in contract negotiations. The city is a pilot site for Bridges to Excellence, a pay-for-performance initiative spearheaded by GE. Cincinnati Children’s Hospital Medical Center is a grantee under the Robert Wood Johnson Foundation’s Pursuing Perfection program. Among the issues explored were physician supply, incentive structures, specialty hospitals, and information technology.

Consumer Cost Sharing In Private Health Insurance: On The Threshold Of Change, Veronica V. Goff

National Health Policy Forum

Employers are asking employees to pay more for health care through higher premium contributions, share of contribution, and out-of-pocket maximums, along with variations in deductibles, copays, and coinsurance based on choice of providers, networks, drugs, and other services. This issue brief examines consumer cost-sharing trends in private insurance, discusses the outlook for cost sharing in employment-based benefits, and considers public policies to support health care markets for consumers.

Medicare's Chronic Care Improvement Pilot Program: What Is Its Potential?, Nora Super

National Health Policy Forum

This paper describes the voluntary chronic care improvement program under traditional fee-for-service Medicare as authorized by the Medicare Prescription Drug, Improvement, and Modernization Act (MMA) of 2003 (Public Law 108-173; section 721). This brief analyzes the emerging issues raised by this new program, including which chronic conditions and regional areas will be targeted, the types of entities that may participate, the physician’s role in care management, and the adoption and use of health information technology and evidence-based clinical guidelines.