Law Commons^™

Masking Vulnerability: Including Ppe As A Covered Service In Health Insurance, Mary Leto Pareja

Faculty Scholarship

The COVID-19 pandemic laid bare the shared vulnerability inherent in the human condition, prompting a collective recognition of our physical susceptibility to infectious diseases. While great strides have been made in combating COVID-19 through vaccinations and treatments, a portion of the population remains profoundly vulnerable due to health conditions that make the disease more dangerous, that limit vaccine efficacy, or that prevent vaccination altogether. This article explores a path forward by proposing a solution within health benefit plans—encompassing both private health insurance and public health benefits. Specifically, the article advocates for a coverage mandate for over-the-counter personal protective equipment (PPE) …

California V. Texas: The Role Of Congressional Procedure In Severability Doctrine, Mary Leto Pareja

Faculty Scholarship

The United States Supreme Court is once again considering a case that challenges the constitutionality of the Affordable Care Act (“ACA”). In this round of litigation, plaintiffs argue that because Congress lowered the individual mandate tax penalty to zero in the 2017 Tax Act that makes the individual mandate itself unconstitutional and that, furthermore, the individual mandate cannot be severed from the rest of the ACA. The District Court agreed with the plaintiffs and struck down the entire ACA, and the Supreme Court granted cert to hear this momentous question. A decision is expected by summer of 2021.

The ACA …

Bad Apples Or A Rotten Tree: Ameliorating The Double Pandemic Of Covid-19 And Racial Economic Inequality, Nathalie Martin

Faculty Scholarship

Black Lives Matter signs pepper our rural, middle class neighborhood. The lawn signs raise a fundamental question: if Black Lives Matter, what will it take to reverse the longstanding trend that has left many dead and so many others, perhaps all others, suffering? What will it take to create some semblance of equality and equity across racial lines in America?

Part I of this essay discusses race and Covid 19. It reviews and updates statistics on Covid deaths and race, and discusses some of the reasons for the racial disparities in Covid deaths. Part II briefly reviews the stratification of …

Kob Interviews Joshua Kastenberg About Constitutional Rights During Covid-19, Joshua Kastenberg, Brittany Costello

Faculty Scholarship

No abstract provided.

Humanizing Work Requirements For Safety Net Programs, Mary Leto Pareja

Faculty Scholarship

This Article explores the political and policy appeal of work requirements for public benefit programs and concludes that inclusion of such requirements can be a reasonable design choice, but not in their current form. This Article’s proposals attempt to humanize these highly controversial work requirements while acknowledging the equity concerns they are designed to address. Drawing on expansive definitions of “work” found in guidance published by the Centers for Medicare and Medicaid (“CMS”) and in various state waiver applications, this Article proposes that work requirements be approved for Medicaid (as well as other benefit programs) only if they encompass various …

Funding The Costs Of Disease Outbreaks Caused By Non Vaccination, Robert L. Schwartz

Faculty Scholarship

While vaccination rates in the United States are high – generally over 90 percent – rates of exemptions have been going up, and preventable diseases coming back. 2014 is shaping to be one of the worst years for measles since 1994, with outbreaks generally starting from unvaccinated individuals and affecting primarily the unvaccinated. While pertussis is a more complex story, communities with high rates of exemptions are more vulnerable to outbreaks. Aside from their human cost and the financial cost of treatment imposed on those who become ill, outbreaks impose financial costs on an already burdened public health system, diverting …

End-Of-Life Care: Doctors' Complaints And Legal Restraints, Robert L. Schwartz

Faculty Scholarship

Health lawyers and policymakers cannot always see the same shadows of the laws that are visible to health care providers, and sometimes those shadows have penumbras and emanations that are not visible to those outside of a narrow medical practice. Sometimes those shadows, whether real or imagined, cause doctors to act inconsistently with the intent of the law, and inconsistently with the requirements of good medical practice. Doctors may misread or misunderstand a law. Still, if the law as misread or misunderstood actually affects medical practice, we should not be blind to the fact of the misunderstanding. Listen to doctors' …

The Ethical Health Lawyer: When Doing The Right Thing Means Breaking The Law - What Is The Role Of The Health Lawyer?, Robert L. Schwartz

Faculty Scholarship

No abstract provided.

Where Is Health Law Going?: Follow The Money, Robert L. Schwartz

Faculty Scholarship

Where has health law come from? Where will it be going? To follow the development of this discipline, follow the money. Where substantial financial interests entered the health care enterprise, lawyers have been sure to follow--or, sometimes, to lead. Where we can predict there will be concentrations of money, we can predict there will be concentrations of lawyers, and, not too far behind, legal academics. The very birth of "health law" (or, at least, its transformation out of "medical law") was a consequence of a newly developing medical economy. Since the term "Health Law" was first used as a casebook …

Bioethics Policy: Looking Beyond The Power Of Sovereign Governments (Foreword), Robert L. Schwartz

Faculty Scholarship

Lawyers are trained to think in terms of power exercised by a sovereign-an institution authorized to enforce a procedurally appropriate decision with coercive force.' Generally, lawyers have a broad notion of what constitutes a sovereign. In the United States, for example, this notion includes the federal government, state governments, most tribal units, traditional territorial governments and their agencies-e.g., school boards, local public park districts, water run-off management districts, and flea abatement boards-and a host of other institutions. As a result, it is difficult for lawyers to recognize that policy also may emanate from other institutions that possess only persuasive authority, …

Life Style, Health Status, And Distributive Justice, Robert L. Schwartz

Faculty Scholarship

The newest and most original scapegoat upon which we can place the blame for the high cost of health care are those whose life style choices puts their health or lives at risk. Of course, if our health care cost and access problems are a consequence of unhealthy choices made by autonomous individuals, we are relieved of the obligation of figuring out how to reform our health care delivery system. In that case, the solution to our health care problem is obvious - we merely need to impose appropriate penalties on those who make costly, immoral and unhealthy life style …

Medicaid Reform Through Setting Health Care Priorities, Robert L. Schwartz

Faculty Scholarship

The face of American health care has changed since the creation of the two largest government funded health programs, Medicare and Medicaid. Whatever positive cultural benefits those programs have provided, they have carried with them one overwhelming defect: a language with obscure and untreatable words and phrases which has added to the mystery and impenetrability of the underlying substantive law. This article discusses Oregon’s proposal for prioritization, reviews legal arguments, a policy argument against the proposal, and finally concludes that any priority list that generalizes from condition-treatment pairs necessarily overgeneralizes, that the range of cost-utility ratios for any condition-treatment pair …

Professional Decisions And Ethical Values In Medical And Law Students, Robert L. Schwartz, Agnes G. Rezler, Pamela Lambert, S. Scott Obenshain, Joan Mciver Gibson, David A. Bennahum

Faculty Scholarship

The purpose of this project is to evaluate and compare the values used by medical and law students when dealing with ethical dilemmas in the professional practice of law and medicine. It is assumed that conflict between doctors and lawyers often arises out of the different values that members of each profession apply to similar dilemmas.

There Is No Archbishop Of Science - A Comment On Elliot's Toward Incentive-Based Procedure: Three Approaches For Regulating Scientific Evidence, Robert L. Schwartz

Faculty Scholarship

As is usual when Professor Elliott writes about turning retrospective judge-oriented procedural rules into prospective attorney-oriented procedural incentives, his proposal for dealing with scientific testimony not accepted within the scientific community is both interesting and provocative. It also serves as an apology for those judges who are so in awe of science that they believe that only they or their peers in the scientific establishment-and not the common folk selected for jury service-are likely to understand the complex truths that science yields. Professor Elliott starts with the assumption that there is a need for some kind of judicial intervention to …

Setting Limits On Autonomy: Saving Money In An Aging Society, Robert L. Schwartz

Faculty Scholarship

In Setting Limits Dr. Daniel Callahan poses a solution: the termination of some kinds of treatment for the very elderly. His solution undercuts autonomy of the individual. This Article describes the values served by autonomy and explains why autonomy is so basic to making health care decisions and why its importance is especially great in the United States. Of course, autonomy is not absolute. This Article will define those classes of cases in which autonomy can be trumped by other interests. The Article will next determine whether the class of cases defined by Dr. Callahan fits within that definition. Finally, …

When Can The Government Issue A Retroactive Medicare Reimbursement Rule? A Preview Of Bowen V. Georgetown University Hospital, Robert L. Schwartz

Faculty Scholarship

The only issue before the Court is whether the Secretary of Health and Human Services can issue a regulation with entirely retroactive effect governing Medicare reimbursement for healthcare providers. The Court must decide whether such a retroactive rule is permitted by the Administrative Procedures Act (the "APA"), which defines a rule as "an agency statement of either general or particular applicability and future effect," or by the Medicare statute, which authorizes the Secretary to issue regulations to provide for the reimbursement of the "reasonable costs" of hospitals providing Medicare services.

When Must A Hospital Challenge The Medicare Reimbursement Policy?, Robert L. Schwartz

Faculty Scholarship

The Issue for the Court is whether the Medicare statute permits hospitals that do not formally request Medicare reimbursement for particular items in the cost reports filed with their fiscal intermediaries (who audit the reports) to seek reimbursement for those items when they appeal the fiscal intermediary's decision to the appropriate administrative board or court.

Informed Consent To Participation In Medical Research Employing Elderly Human Subjects, Robert L. Schwartz

Faculty Scholarship

The primary question facing researchers who intend to employ elderly human subjects is whether their subjects' advanced age requires that the protection of their autonomy be accomplished in some manner that is different from that employed to protect other subjects. Answering this question will require an analysis of whether elderly subjects have a greater or lesser interest in autonomy than do others who might be subjects in human research, and whether it is more or less important to protect them from potential research abuse. This article will suggest that the elderly may possess several attributes that require that they be …

Mobile Homes?--Public And Private Controls, Robert L. Schwartz

Faculty Scholarship

The mobile home of today is a far different creature than that from which it was bred. Changes in size, appearance, safety, convenience, and desirability as a place to live have caused the modem mobile home to bear little resemblance to its ancestors. Functioning as a permanently emplaced dwelling, the mobile home has come to be recognized as undeserving of the label "mobile." Other than by place of manufacture, mobile homes have become increasingly indistinguishable from conventional single family dwellings, raising the question of whether mobile homes can reasonably be restricted from areas reserved for single family dwellings. Land controls, …

Institutional Review Of Medical Research: Cost-Benefit Analysis, Risk-Benefit Analysis, And The Possible Effects Of Research On Public Policy, Robert L. Schwartz

Faculty Scholarship

It is reasonable to expect IRBs to develop and apply policy as other public policy agencies do. In fact, the risk-benefit analysis now required of IRBs appears to be analogous to the cost-benefit analysis adopted by public policy analysts. But, as we shall see, the new risk-benefit criterion is far less comprehensive and valid than the traditional cost-benefit model.

Delimiting Religion And Ethics, Robert L. Schwartz

Faculty Scholarship

The author argues that people need to make a distinction between religious belief and logical ethics.

Teaching Physicians And Lawyers To Understand Each Other: The Development Of A Law And Medicine Clinic, Robert L. Schwartz

Faculty Scholarship

The discomfort doctors and lawyers feel with one another is not a consequence of the perceived medical malpractice crisis or any other single area of substantive disagreement. Rather, it is a reflection of the different epistemologies of the professions. The truth seeking activities of the two professions are very different, and these differences are reflected in the widely divergent professional educations provided to medical and law students. Much of the animosity which has developed between doctors and lawyers could be avoided, and members of each profession could have a much better understanding of the substance and analytic methods of the …

Physicians And Lawyers: Science, Art, And Conflict, Robert L. Schwartz, Joan M. Gibson

Faculty Scholarship

The relations between physicians and lawyers have deteriorated rapidly over the past several decades, most particularly since the early 70s when the perception that a medical malpractice crisis existed in America became widespread. Some believe that the factors dividing the two professions . are linked (1) to professional jealousy, (2) to sometimes conflicting economic interests, or (3) to difficulties in communication, since both professions use many of the same words, or terms of art, but with different intended meanings. While the authors agree that these factors may have aggravated the problem, they believe that the conflict's real roots are in …

Defining The Role Of The Physician: Medical Education, Tradition, And The Legal Process, Robert L. Schwartz

Faculty Scholarship

The professional conflict and animosity that have developed between the legal and medical professions are symptomatic of something that is basic and disturbing to the traditional science and practice of medicine. Even a cursory review of the literature will reveal that physicians, lawyers, philosophers, and others (with greater or lesser degrees of insight and awareness) are currently engaged in serious reevaluations of such concepts as the definition of medicine as science and/or art, the structure and administration of effective medical curricula, and the goals of the medical profession itself. Such analyses require not only that physicians evaluate what they ought …

Laetrile: The Battle Moves Into The Courtroom, Robert L. Schwartz

Faculty Scholarship

Controversy over the supposed cancer-curing drug laetrile continues to rage. Now it's up to the courts. substance that was used by ancient Greek physicians, has been available in the United States, legally or illegally, for a quarter of a century. The government's increased efforts to eliminate laetrile "pushing" by what are seen to be profiteering physicians has created a strengthened laetrile lobby that has successfully fought the medical establishment and succeeded in making the drug legal in more than a dozen states. The pro-laetrile lobby an assortment of cancer patients and their families, medical professionals, and conservative politicians -threatens to …

The Community Development Coporation, Robert L. Schwartz, Raymond G. Sanchez

Faculty Scholarship

Review of Community Development Corporation (CDC) Model, its role as a community action agency, and the Community Self-Determination Act of 1968.