Law Commons^™

Shifting Public Health Priorities And The Global Effort To Prevent A Bird Flu Pandemic, Robert Gatter

All Faculty Scholarship

Global strategy to control highly pathogenic avian influenza (HPAI) has changed dramatically since 2003 when it was first reported that a confirmed bird flu jumped the species barrier to infect a human in Hong Kong. Evidence of this shift in priorities in the global fight against HPAI can be found most clearly in program funding trends. In late 2008 and into 2009, financial commitments from international donors for all HPAI programs dropped significantly. Meanwhile, within HPAI programs, funding shifted substantially away from animal biosecurity projects and into human response and preparedness work. This Article examines three reasons for this shift …

Bending The Health Cost Curve: The Promise And Peril Of The Independent Payment Advisory Board, Ann Marie Marciarille

Faculty Works

Underlying today's and the future's health care reform debate is a consensus that America's health care financing system is in a slow-moving but deep crisis: care appears substandard in comparison with other advanced industrial countries, and relative costs are exploding beyond all reasonable measures. The Obama Administrations' Patient Protection and Affordable Care Act (ACA) attempts to grapple with both of these problems. One of the ACA's key instrumentalities is the Independent Payment Advisory Board - the IPAB, designed to discover and authorize ways to reduce the rate of growth of Medicare and other categories of health spending. The IPAB is …

Woman Scorned?: Resurrecting Infertile Women's Decision-Making Autonomy, Jody L. Madeira

Articles by Maurer Faculty

Legal scholarship portrays women as reproductive decision makers in conflicting ways. The distinctions between depictions of infertile women and women considering abortion are particularly striking. A woman seeking infertility treatment, even one who faces no legal obstacles, is often portrayed as so emotionally distraught and desperate that her ability to give informed consent is potentially compromised. Yet, the legal academy has roundly rejected similar stereotypes of pregnant women considering abortion, depicting them as confident and competent decision makers. This Article argues that legal scholars' use of a "desperate woman" stereotype denies women's ability to critically assess the health risks and …

Perverse Incentives Arising From The Tax Provisions Of Healthcare Reform: Why Further Reforms Are Needed To Prevent Avoidable Costs To Low- And Moderate-Income Workers, David Gamage

Articles by Maurer Faculty

Called “Obamacare” by some, the Affordable Care Act (or “ACA”) is the most extensive reform to the American healthcare system since the creation of Medicare and Medicaid in 1965. The ACA promises many improvements to American health care. While recognizing the importance of these improvements, this Article focuses on how the ACA’s tax provisions will create avoidable costs for low- and moderate-income workers.

This Article argues that – once key tax-related provisions of the ACA come into effect in 2014 – the ACA will create perverse incentives with respect to a number of important decisions affecting low- and moderate-income Americans, …

How The Supreme Court Doomed The Aca To Failure, Thom Lambert

Faculty Publications

Now that the dust has settled somewhat, we may assess the likely consequences of the decision in National Federation of Independent Business v. Sebelius. This article briefly summarizes the reasoning underlying the decision's individual mandate ruling. It then considers what lies ahead for health insurance and medical care in the United States if the ACA, as modified by NFIB, is not repealed. Be warned: the picture isn't pretty.

Affordable Care Act Litigation: The Supreme Court And The Future Of Health Care Reform, Lawrence O. Gostin, Kelli K. Garcia

Georgetown Law Faculty Publications and Other Works

In Florida v. HHS, a lawsuit brought on behalf of 26 states challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA), the Supreme Court will determine the future direction of health care reform in the United States. During the unprecedented 5-1/2 hours of oral arguments, the Court will hear 4 issues: the individual purchase mandate, severability, the Medicaid expansion and the Anti-Injunction Act.

The states challenging the ACA maintain that the purchase mandate uniquely penalizes individuals for failing to purchase insurance. Uninsured individuals, however, rarely do nothing. Instead, they self-insure, rely on family, and cost-shift to …

Cost-Benefit Federalism: Reconciling Collective Action Federalism And Libertarian Federalism In The Obamacare Litigation And Beyond, Abigail Moncrieff

Faculty Scholarship

The lawsuits challenging Obamacare's individual mandate have exposed a rift in federalism theory. On one side of the divide is a view that the national government ought to intervene - and ought to be constitutionally permitted to intervene - whenever the states are "separately incompetent" to regulate. This is the view that Robert Cooter and Neil Siegel recently theorized as "collective action federalism." On the other side of the divide is a view that federalism exists for reasons other than efficiency of regulation and particularly that the Founders created the federal structure for the protection of individual liberty. According to …

The Ppaca In Wonderland, Gary S. Lawson, David Kopel

Faculty Scholarship

The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions …

Effect Of Financial Relationships On The Behaviors Of Health Care Professionals: A Review Of The Evidence, Christopher Robertson, Susannah Rose, Aaron Kesselheim

Faculty Scholarship

This symposium paper explores the empirical evidence regarding the impact of financial relationships on the behavior of health care providers, specifically, physicians. We identify and synthesize peer-reviewed data addressing whether financial incentives are causally related to patient outcomes and health care costs. We cover three main areas where financial conflicts of interest arise and may have an observable relationship to health care practices: physicians’ roles as self-referrers, insurance reimbursement schemes that create incentives for certain clinical choices over others, and financial relationships between physicians and the drug and device industries. We found a well-developed scientific literature consisting of dozens of …

With Child, Without Rights?: Restoring A Pregnant Woman's Right To Refuse Medical Treatment Through The Hiv Lens, Michael Ulrich

Faculty Scholarship

In Doe v. Division of Youth & Family Services , a hospital employee sought state intervention when an HIV-positive woman refused to comply with treatment recommendations during her pregnancy to drastically reduce the chances of mother-to-child-transmission (MTCT), eventually triggering a lawsuit against the hospital. With an increase in the number of HIV-positive women becoming pregnant and the court avoiding constitutional analysis of the woman’s right to refuse medical treatment, there is a clear void where legal analysis is surely needed. This Article fills this void for the inevitable case where an HIV-positive pregnant woman’s right to refuse medical treatment is …

Collaborating With The Real World: Opportunities For Developing Skills And Values In Law Teaching, Charity Scott

Faculty Publications By Year

This article describes a broad range of teaching innovations and opportunities that classroom law professors can take advantage of in their own backyards. It presents examples of real-world engagement by faculty who help their students learn the skills, values, and attributes of good professional practice by supplementing what they already are teaching well with opportunities to learn the law in real-world contexts. Classroom professors do not need to become clinical professors or start teaching lawyering skills courses. Instead, they can collaborate with clinical professors, practicing lawyers, and other professionals outside their classrooms in settings that relate to their doctrinal fields. …

The Politics Of Medicaid, Nicole Huberfeld

Faculty Scholarship

Medicaid is the word on everyone's lips, not only because of the budgetary crisis many states are suffering, but also because the Supreme Court will decide two major cases regarding Medicaid this term, each of which has the potential to significantly alter the course of this long-standing safety net as well as the constitutional principles undergirding the program. Medicaid is a federal program that was intended to mainstream the very poor into the healthcare system by providing states with matching federal funds for particular expenditures on and provision of medical care. Without Medicaid, tens of millions of Americans would be …

The Affordable Care Act Individual Coverage Requirement: Ways To Frame The Commerce Clause Issue, Wendy K. Mariner

Faculty Scholarship

No abstract provided.

A Randomized Study Of How Physicians Interpret Research Funding Disclosures, Christopher Robertson

Faculty Scholarship

The effects of clinical-trial funding on the interpretation of trial results are poorly understood. We examined how such support affects physicians’ reactions to trials with a high, medium, or low level of methodologic rigor.

What The New Deal Settled, Jamal Greene

Faculty Scholarship

Not since George H.W. Bush banned it from the menu of Air Force One did broccoli receive as much attention as during the legal and political debate over the Patient Protection and Affordable Care Act ("ACA"). Opponents of the ACA have forcefully and repeatedly argued that if Congress has the power to require Americans to purchase health insurance as a means of reducing health care costs, then it likewise has the power to require Americans to eat broccoli. Broccoli is mentioned twelve times across the four Supreme Court opinions issued in the ACA decision – that's eleven more appearances than …

Marketing Pharmaceuticals: A Constitutional Right To Sell Prescriber-Identified Data?, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Pharmaceutical companies have strong economic interests in influencing physician-prescribing behaviors. They advertise direct-to-the-consumer and to the physician. Beyond general marketing, manufacturers promote their drugs to physicians through “detailing”—sales representatives (“detailers”) visiting medical offices to persuade physicians to prescribe their products.

By law, pharmacies receive specific information with every prescription, including the physician’s name, the drug, and the dose. Pharmacies sell these records to Prescription Drug Intermediaries (data miners), who use advanced computing to analyze prescriber-identified information (which physicians prescribe what drugs, in what dose, and with what prescribing patterns). Data miners, in turn, lease sophisticated reports to pharmaceutical companies to …

Empirically Evaluating The Impact Of Adjudicative Tribunals In The Health Sector: Context, Challenges And Opportunities, Lorne Sossin, Steven J. Hoffman

Articles & Book Chapters

Adjudicative tribunals are an integral part of health system governance, yet their real-world impact remains largely unknown. Most assessments focus on internal accountability and use anecdotal methodologies; few, studies if any, empirically evaluate their external impact and use these data to test effectiveness, track performance, inform service improvements and ultimately strengthen health systems. Given that such assessments would yield important benefits and have been conducted successfully in similar settings (e.g. specialist courts), their absence is likely attributable to complexity in the health system, methodological difficulties and the legal environment within which tribunals operate. We suggest practical steps for potential evaluators …

Book Review | The Politics Of Medicaid By Laura Katz Olson, Nicole Huberfeld

Law Faculty Scholarly Articles

In this book review, Professor Nicole Huberfeld examines The Politics of Medicaid, by Laura Katz Olson, which was published in 2010 by Columbia University Press.

Post-Reform Medicaid Before The Court: Discordant Advocacy Reflects Conflicting Attitudes, Nicole Huberfeld

Law Faculty Scholarly Articles

The United States Supreme Court heard two Medicaid cases this term that raise major questions about the program and the tensions it creates between the federal and state governments. On October 3, 2011, the Court heard oral arguments in Douglas v. Independent Living Center of Southern California, a dispute between California and its Medicaid providers regarding reimbursement cuts resulting from California's budget crisis. The Medicaid providers argued that the proposed cuts are so extreme as to violate federal law and thus the Supremacy Clause of the United States Constitution. Their contention hinged on the Equal Access Provision of the Medicaid …

Comparative Pragmatism, Rachel Rebouché

UF Law Faculty Publications

Although several commentators have previously suggested that the United States and Germany now share more commonalities than differences, this Article challenges the conventional wisdom by suggesting that the United States and Germany have moved in the opposite direction on a spectrum of available abortion services. In the United States, the constitutional right to an abortion is unrealizable for many women due to restrictive state and federal laws and the absence of providers in many areas. In Germany, by contrast, despite the country’s formal recognition of fetal rights, early abortion is widely available and often funded by the government. In short, …

The Limits Of Government Regulation Of Science, John D. Kraemer, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The recent controversy over the National Science Advisory Board for Biosecurity’s (NSABB) request that Science and Nature redact key parts of two papers on transmissible avian (H5N1) influenza reveal a troubled relationship between science and security. While NSABB’s request does not violate the First Amendment, efforts to censor the scientific press by force of law would usually be an unconstitutional prior restraint of the press absent a compelling state interest. The constitutional validity of conditions on grant funding to require pre-publication review of unclassified research is unclear but also arguably unconstitutional.

The clearest case where government may restrict publication is …

Pursuing High Performance In Rural Health Care, A. Clinton Mackinney, Keith J. Mueller, Andrew F. Coburn, Jennifer P. Lundblad, Timothy D. Mcbride, Sidney D. Watson

All Faculty Scholarship

In 2001, the Institute of Medicine (IOM) called for transformation of the United States health care system to make it safe, effective, patient-centered, timely, efficient, and equitable.1 The journey toward these six aims in public policy and the private sector is underway, but fundamental challenges detailed by the IOM remain. Patients are injured at alarming rates, wide variation in care exists across geographies, patients complain of insensitive and/or inaccessible health care providers, health care costs are nearly twice that in other developed countries, and nearly 50 million Americans lack health insurance. As a result, our health care is often fragmented, …

Teaching Health Law In Rural Ethiopia: Using A Pepfar Partnership Framework And India's Shanbaug Decision To Shape A Course, Sallie Thieme Sanford Sanfords@Uw.Edu

Articles

In April 2011, I taught a month-long intensive health law course at Haramaya University College of Law in rural eastern Ethiopia. Given the burgeoning interest in global health law, I suspect, and hope, that others are considering teaching similar courses, whether as visiting or resident faculty. This essay attempts to ease their course preparation workload. I will describe how I used two recent documents – India’s 2011 Shanbaug decision and Ethiopia’s 2010 PEPFAR Partnership Framework – to shape the course. Both of these are worth consideration for use in a variety of health law and policy courses based in low-income …

Pregnancy As 'Disability' And The Amended Americans With Disabilities Act, Jeannette Cox

School of Law Faculty Publications

The recent expansion of the Americans with Disabilities Act’s (ADA) protected class invites reexamination of the assumption that pregnant workers may not use the ADA to obtain workplace accommodations. The ADA’s scope now includes persons with minor temporary physical limitations comparable to pregnancy’s physical effects. Accordingly, the primary remaining justification for concluding that pregnant workers may not obtain ADA accommodations is that pregnancy is a physically healthy condition rather than a physiological defect. Drawing on the social model of disability, this Article challenges the assumption that medical diagnosis of “defect” must be a prerequisite to disability accommodation eligibility. The social …

An Enduring Oddity: The Collateral Source Rule In The Face Of Tort Reform, The Affordable Care Act And Increased Subrogation, Adam Todd

School of Law Faculty Publications

Today, despite significant legislative changes in healthcare insurance, tort reform, and subrogation, the collateral source rule has remained in force in many jurisdictions even in the face of rising health insurance costs. This Article argues that as long as health insurance markets are fragmented, the collateral source rule will continue to play an important normative role in the administration of the tort injury compensation process. The rule also helps deter tortious behavior, supports the insured's contractual expectations, is consistent with distributive fairness, and ensures that those engaging in risky activities bear the full cost of injuries. The collateral source will …

"The Birth Of Death": Stillborn Birth Certificates And The Problem For Law, Carol Sanger

Faculty Scholarship

Stillbirth is a confounding event, a reproductive moment that at once combines birth and death. This Essay discusses the complications of this simultaneity as a social experience and as a matter of law. While traditionally, stillbirth didn't count for much on either score, this is no longer the case. Familiarity with fetal life through obstetric ultrasound has transformed stillborn children into participating members of their families long before birth, and this in turn has led to a novel demand on law.

Dissatisfied with the issuance of a stillborn death certificate, bereaved parents of stillborn babies have successfully lobbied state legislatures …

An Investigation Of The Rationality Of Consumer Valuations Of Multiple Health Risks, W. Kip Viscusi, Wesley A. Magat, Joel Huber

Vanderbilt Law School Faculty Publications

After developing a conceptual analysis of consumer valuation of multiple risks, we explore both economic and cognitive hypotheses regarding individual risk-taking. Using a sample of over 1,500 consumers, our study ascertains risk-dollar tradeoffs for the risks associated with using an insecticide and a toilet bowl cleaner. We observe the expected positive valuation of risk reductions andfind empirical supportfor a diminishing in the valuation of risk reduction as the extent of the risk reduction increases. We also find evidence of certainty premiums for the total elimination of one risk, but no strong evidence of additional certainty premiums for the elimination of …

Taming The Beast Of Health Care Costs: Why Medicare Reform Alone Is Not Enough, Susan A. Channick

Faculty Scholarship

The Patient Protection and Affordable Care Act' ("ACA") has, as its primary goal, universal access to health insurance for all American citizens and legal residents. When fully implemented, the ACA will provide insurance to an additional 32 million people who are currently uninsured and to many millions of others who are underinsured. While universal health insurance is certainly a public health goal that this country has sought for many decades, the additional lives that will be added to the insurance rolls as well as new minimum coverage requirements mandated by the ACA will create fiscal burdens for the already expensive …

Health Care And The Illegal Immigrant, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

The question of whether illegal immigrants should be entitled to some form of health coverage in the United States sits at the uneasy intersection of two contentious debates: health reform and immigration reform. Befitting this place, the rhetoric surrounding the issue has been exponentially heightened by the multiplying effects of combining two vitriolic debates. On one side, it is argued that the United States has a moral obligation to provide health care to all those within its borders needing such assistance. On the other, it is argued with equal force that those illegally present in this country should not be …