Law Commons^™

Got Junk? The Federal Role In Regulating “Competitive” Foods, Eileen Salinsky

National Health Policy Forum

A wide variety of food and beverage items are available in schools in addition to the school meals provided through the National School Lunch Program and School Breakfast Program. A long-standing source of controversy, the need for stronger federal restrictions on foods that compete with school meals is again under debate. This issue brief examines the availability and consumption of competitive foods, explores the regulation of these foods at the federal level, considers trends in state and local restrictions, and summarizes perceived barriers to improving the nutritional quality of competitive food options.

No Free Lunch? Current Challenges Facing The National School Lunch And School Breakfast Programs, Eileen Salinsky

National Health Policy Forum

This background paper describes important characteristics of the National School Lunch Program and the School Breakfast Program, reviews U.S. Department of Agriculture rules regarding the nutritional content of school meals, and examines compliance with current nutrition standards. It also considers the dietary status and obesity risk of meal program participants, discusses proposed improvements to nutritional standards and meal requirements, and highlights key legislative issues.

The Role Of Ombudsmen In Assuring Quality For Residents Of Long-Term Care Facilities: Straining To Make Ends Meet, Carol O'Shaughnessy

National Health Policy Forum

Assuring quality of care for residents in long-term care facilities has been a serious and continuing concern of policymakers for decades. The Older Americans Act’s long-term care ombudsman program is a consumer advocacy model intended to improve quality of care by helping the 2.5 million residents of almost 67,000 nursing and other residential care facilities resolve complaints about their care and protect their rights. Despite broad recognition of its value in assisting residents and its efforts to complement federal and state oversight of long-term care facilities, some observers are concerned about the program’s ability to meet its legislative mandates. Limited …

Agenda: World Energy Justice Conference And Appropriate Technology Arcade, University Of Colorado Boulder. Center For Energy & Environmental Security, University Of Colorado Boulder. School Of Law

World Energy Justice Conference (October 23-24)

The 2009 CEES Energy Justice Conference took place at the University of Colorado Law School on October 23rd and 24th, 2009. It featured 11 sessions, more than 40 speakers, and attracted over 200 attendees. The Conference brought together leading international and U.S. decision-makers in politics, engineering, public health, law, business, economics, and innovators in the sciences to explore how best to address the critical needs of the energy-oppressed poor (EOP) through long-term interdisciplinary action, information sharing, and deployment of appropriate sustainable energy technologies (ASETs).

The Colorado Journal of International Environmental Law & Policy (CJIELP) at the University of Colorado Law …

The International Response To Climate Change: An Agenda For Global Health, Lindsay F. Wiley, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

As the international community negotiates a successor to the Kyoto Protocol of the United Nations Framework Convention on Climate Change (UNFCCC), there is new reason to hope that meaningful action might be taken to prevent devastating climate change. Even the more ambitious mitigation targets currently under negotiation, however, will not be sufficient to avoid a profound effect on the public's health in coming decades, with the world's poorest, most vulnerable populations bearing the disproportionate burden. The influence of historic and current emissions will be so substantial that it is imperative to reduce global emissions while at the same time preparing …

Healthy Planet, Healthy People: Integrating Global Health Into The International Response To Climate Change, Lindsay F. Wiley

Georgetown Law Faculty Publications and Other Works

The potentially groundbreaking negotiations currently underway on the international response to climate change and national implementation of commitments under the United Nations Framework Convention on Climate Change (UNFCCC) include a number of hotly contested issues: (1) what degree of climate change is acceptable as a basis for emissions targets, (2) to what extent and in what ways climate change mitigation should incorporate emissions reductions or increased sinks for developing countries, (3) whether the legal regime governing mitigation can take advantage of the huge mitigation potential of changed practices in the land use and agricultural sectors, (4) how adaptation should be …

A Defense Of Embryonic Stem Cell Research, Gregory Dolin

All Faculty Scholarship

On November 21, 2007, sensational scientific developments were reported by major newspapers, both in the United States and abroad. The media reported a new breakthrough in the area of stem cell research. According to two articles published in Science and Cell (both highly respected scientific journals), two teams of scientists were able to “reprogram” adult stem cells into embryonic stem cells, without actually having to experiment on embryos. The discovery was immediately hailed by the White House and other opponents of embryonic stem cell research. The New York Times gushed that the “stem cell wars” may be at an end. …

Law & Health Care Newsletter, V. 17, No. 1, Fall 2009

Law & Health Care Newsletter

No abstract provided.

Mid-Atlantic Ethics Committee Newsletter, Fall 2009

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.

Nil: The Value Of Patents In A Major Crisis Such As An Influenza Pandemic, Dennis D. Crouch

Faculty Publications

This essay focuses on the role of patents in relation to a potential global crisis such as an influenza pandemic or other public health crisis. I argue that patent rights will be largely ignored during an epidemic and that any post-crisis compensation would likely be low when compared to traditional patent rewards or settlements entered under threat of injunctive relief. In some situations, such as use of a patented invention by a state or local government, a patentee may have no recourse. Part III of the essay raises a separate issue that stems from the relatively long time frame for …

Organophosphates, Friend And Foe: The Promise Of Medical Monitoring For Farm Workers And Their Families, Adriane J. Busby, Gabriel Eckstein

Faculty Scholarship

Millions of farm workers nation-wide who load, mix and/or apply pesticides are exposed to incredible amounts of pesticides on a daily basis. Various inefficiencies and inconsistencies in the regulatory system - including insufficient illness reporting data systems, lack of regulatory compliance and enforcement, and inadequate data and information on the chronic effects of exposure and overexposure to various pesticides - increase the likelihood that these workers will continue to be exposed to dangerous amounts of pesticides.

This Article assesses the existing mechanisms designed to protect farm workers from occupational exposure to pesticides and identifies and analyzes some of the shortcomings …

In Search Of An Enforceabe Medical Malpractice Exculpatory Agreement: Introducing Confidential Contracts As A Solution To The Doctor-Patient Relationship Problem, Matthew J.B. Lawrence

Faculty Scholarly Works

Scholars have argued that the malpractice system would be better off if patients had the option of waiving the right to sue for malpractice in exchange for a lower fee. Some doctors have tried to follow this advice by having their patients sign medical malpractice exculpatory agreements, but courts usually have refused to enforce these agreements, invoking a void-for-public-policy rationale. This Note argues that a doctor could maximize the odds that a court would enforce her medical malpractice exculpatory agreement by somehow ensuring that she will never find out whether her patient decided to sign. A case study of the …

Coverage And Payment For Prescription Drugs Under Medicare Part B: A Complex Patchwork, Amanda Cassidy

National Health Policy Forum

As part of the diverse discussions around health care reform, many have looked to refining Medicare payment systems as a way to give health care practitioners and providers greater incentives to deliver care more efficiently, and thus slow health care spending growth. Understanding how Medicare currently pays for Part B services, including drugs covered under Part B, is essential to understanding the potential impact of these types of reforms. Most items and services covered under Part B, including most Part B drugs, are paid individually, which means practitioners and providers generally receive more payments for providing more services. Some reform …

Stimulus Bill Implementation: Expanding Meaningful Use Of Health It, Rob Cunningham

National Health Policy Forum

The American Recovery and Reinvestment Act authorizes an estimated $38 billion in incentives and supports for health information technology (IT) from 2009 to 2019. After years of sluggish health IT adoption, this crisis-driven investment of public funds creates a unique opportunity for rapid diffusion of a technology that is widely expected to improve care, save money, and facilitate transformation of the troubled U.S. health system. Achieving maximal effect from the stimulus funds is nevertheless a difficult challenge. The Recovery Act strengthens the federal government’s leadership role in promoting health IT. But successful adoption and utilization across the health system will …

Civil Partnership: Your Questions Answered - A Comprehensive Analysis Of The Civil Partnership Bill, Fergus Ryan

Reports

The Civil Partnership Bill 2009 arguably represents the most momentous change in Irish Family Law in a generation. The Bill proposes a substantial new legal status for registered same-sex partners, as well as important changes to the law as it relates to cohabitants. This report addresses the provisions of the Bill as initiated, analysing the potential impact of the Bill in clear and accessible language. The Report also highlights potential difficulties with the Bill, and suggests possible enhancements to the Bill as initiated.

The Medicare Drug Benefit: Update On The Low-Income Subsidy, Mary Ellen Stahlman

National Health Policy Forum

The Medicare drug benefit (Medicare "Part D"), provides federal subsidies to pay premiums and cost sharing for low-income beneficiaries—almost 10 million in 2009. Yet there are several policy issues concerning these low-income beneficiaries under Part D. First, over 2 million individuals who may qualify for the subsidies have not enrolled. Second, in some states, low-income beneficiaries have little choice of plans (while non-low-income beneficiaries have dozens of choices), unless they pay out-of-pocket for premium amounts above what the subsidy covers. And third, millions of those who have enrolled in the benefit face the prospect each year of switching drug plans …

How The American Recovery And Reinvestment Act Of 2009 Changed Hipaa’S Privacy Requirements, Corrine Parver

Newsletters & Other Publications

The 2009 economic stimulus bill, known as the American Recovery and Reinvestment Act (ARRA), significantly affects the health care industry by imposing more stringent and expansive requirements under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy and security provisions, most especially on key players in the the health care industry while simultaneously strengthening the enforcement of such provisions. Title XIII of Division A and Title IV of Division of ARRA collectively are known as the "HITECH Act." Because the majority of ARRA's changes to HIPAA appear in Subtitle D of Title XIII of ARRA, entitled, "Privacy," Subtitle …

Eligibility For Organ Donation: A Medico-Legal Perspective On Defining And Determining Death, Jocelyn Downie, Matthew R. Kutcher, Chantelle Rajotte, Alison Shea

Articles, Book Chapters, & Popular Press

Purpose: In the context of post-mortem organ donation, there is an obvious need for certainty regarding the legal definition and determination of death, as individuals must be legally pronounced dead before organs may be procured for donation. Surprisingly then, the legal situation in Canada with regard to the definition and determination of death is uncertain. The purpose of this review is to provide anesthesiologists and critical care specialists with a medico-legal perspective regarding the definition and determination of death (particularly as it relates to non-heart-beating donor protocols) and to contribute to ongoing improvement in policies, protocols, and practices in this …

Influenza A(H1n1) And Pandemic Preparedness Under The Rule Of International Law, Lawrence O. Gostin

O'Neill Institute Papers

A novel strain of Influenza A (H1N1) spread rapidly through Mexico in April 2009 and now spans the globe. By the time WHO was notified and responded, geographical containment was not feasible, leading the agency to call for mitigation. The international outbreak of SARS in 2003 and the more recent Influenza A (H5N1) among birds with limited transmission to humans helped prepare the world for the current pandemic threat. SARS galvanized the WHO to revise the antiquated International Health Regulations (IHR) in 2005, which took effect June 15, 2007. Governments instituted preparedness plans in response to avian influenza.

Despite increased …

Improving Legal Competencies For Obesity Prevention And Control, Wendy Collins Perdue

Law Faculty Publications

Our purpose is to offer action options that will help to improve the legal competencies of public health practitioners and policy decision makers with respect to drafting, interpreting, implementing, and enforcing laws and regulations that are relevant to the effective prevention and control of obesity. The accompanying assessment paper provided a foundation for this agenda by first establishing that legal competence for obesity prevention and control is important for both health professionals, who with proper training can effectively interject health considerations into decision- making processes, and non-health professionals involved with relevant policy and legal work, who with proper training can …

Book Review Of “Populations, Public Health, And The Law,” Wendy E. Parmet (Georgetown University Press, Washington, D.C., 2009), Elizabeth Weeks Leonard

Scholarly Works

Wendy Parmet's new book, Populations, Public Health, and the Law, is a provocative, milestone contribution to the growing body of public health law scholarship. This article reviews this scholarly work.

A Closer Look At The Federalization Snowball, Abigail R. Moncrieff

Law Faculty Articles and Essays

While on the academic job market, I presented Federalization Snowballs to several stellar law faculties.1 My argument, in short, was that: (1) federal healthcare spending allows the states to externalize onto the federal government about 40% of the utilization costs associated with their medical malpractice policies (such as the cost of defensive medicine); (2) such an externality systematically distorts a rational state’s incentive to reform medical malpractice; and (3) federalization of medical malpractice is necessary to correct the distortion. In other words, I argued that federalization of healthcare spending through Medicare, Medicaid, and similar programs has snowballed into a need …

Harmonizing The Internal Market Or Public Health? Revisiting Case C-491/01 (British American Tobacco) And Case C-380/03 (Tobacco Advertising Ii), Han-Wei Liu

Research Collection Yong Pung How School Of Law

According to settled ECJ case law, including Case C-376/98 (Tobacco Advertising I), Article 95 EC cannot be construed as conferring upon the Community a general power to regulate the internal market. Measures that the Community legislature adopts under this Article must rather have the specific objective of improving conditions for the establishment and functioning of the internal market; that is, they must be designed to remove genuine obstacles to free movement or distortions of competition, rather than purely abstract risk. [2] In some respects, however, Article 95 appears to provide a pretext for the Community legislature to implement other policy …

Assessing Legal Competencies For Obesity Prevention And Control, Wendy Collins Perdue

Law Faculty Publications

Obesity is the result of people consistently consuming more calories than they expend. A complex interaction of social and environmental conditions affects both energy consumption and physical activity levels. Health professionals who understand the social and environmental factors related to obesity risk may find it challenging to identify, understand, or develop a strategy to improve the vast array of laws that play a role in shaping our environment and behaviors.

Competency in the use of laws and legal authorities is one of the four core elements of public health legal preparedness. Legal competency" is a particularly important component of a …

Over Under Or Through: Physicians, Law, And Health Care Reform, William M. Sage

Faculty Scholarship

My purpose in this commentary is twofold. First, I want to offer a few thoughts on why the American medical profession sometimes has a hard time accepting law on its own terms. Second, I want to suggest that even “good law” from the perspective of the medical profession—should it overcome its habits of resistance—may still be bad health policy for the United States.

Pandemic Preparedness: A Return To The Rule Of Law, Wendy K. Mariner, George J. Annas, Wendy E. Parmet

Faculty Scholarship

Current discussions of pandemic influenza and emergency preparedness would do well to heed the lessons of US Airways flight 1549, which landed in the Hudson River in January 2009. This article examines what past emergencies teach us about how to prevent or control epidemics and argues that it is time for a return to the rule of law in pandemic preparedness. The most important resource in emergency preparedness is a healthy, resilient population, which depends importantly on sustainable systems of medical care and public health. Preparedness thus requires more money than law. After September 11, 2001, however, federal emergency preparedness …

Constitutional Flaw?, Carl E. Schneider

Articles

Do terminally ill patients have a constitutional right "to decide, without FDA interference, whether to assume the risks of using potentially life-saving investigational drugs that the FDA has yet to approve for commercial marketing, but that the FDA has determined, after Phase I clinical human trials, are safe enough for further testing"? In Abigail Alliance for Better Access to Developmental Drugs v. McClellan, the United States District Court for the District of Columbia said "no." In Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, a panel (three judges) of the United States Court of Appeals …

Beyond Free Speech: Novel Approaches To Hate On The Internet In The United States, Jessica S. Henry

Department of Justice Studies Faculty Scholarship and Creative Works

Hate on the Internet presents a unique problem in the United States. The First Amendment to the Constitution protects speech, even that which is hateful and offensive. Although the First Amendment is not without limitation and, indeed, although there have been a small number of successful prosecutions of individuals who disseminated hate speech over the Internet, web-based hate continues to receive broad First Amendment protections. Some non-governmental organizations in the United States, such as the Anti-Defamation League (ADL) and the Southern Poverty Law Center, have adopted innovative approaches to hate on the Internet. For instance, the ADL tracks and monitors …

A Health Insurance Exchange: Prototypes And Design Issues, Mark Merlis

National Health Policy Forum

Many reform proposals call for the creation of one or more health insurance exchanges, intermediaries that can help individuals or small employers navigate the insurance market. An exchange might be public or private, national, or local. It might serve simply as a clearinghouse for plan information or could play an active role in setting benefit packages, choosing high-quality plans, and negotiating premium rates. This paper begins with a summary of recent experience with insurance exchanges and similar systems. It then reviews basic issues in the design of an exchange.

Underwriting In The Non-Group Health Insurance Market: The Fundamentals, Kathryn Linehan

National Health Policy Forum

Non-group health insurance is coverage that individuals purchase on their own rather than as part of a group. Most states currently permit non-group insurers to underwrite, a process whereby an insurer assesses the health and other characteristics of individuals to determine their likely utilization of health services or risk; insurers then use this assessment to determine whether they will offer coverage and the premium they will charge. Policymakers have identified underwriting and related practices in non-group markets as a target for reform to enable broader access for the currently uninsured. This publication reviews the characteristics of non-group markets and insurers' …