Law Commons^™

Transparency And The Supreme Court—Can Employers Refuse To Disclose How Much They Pay For Health Care?, Nicholas Bagley, Christopher Koller

Articles

For decades, the prices that hospitals and physicians charge private insurers have been treated as trade secrets. Even though inflated prices are an enormous reason why health care is so much more expensive in the United States than in other countries, we have only a hazy picture of what those prices actually are.

Impact Of Executive Order 13211 On Environmental Regulation: An Empirical Study, Elizabeth Ann Glass Geltman

Publications and Research

A great deal has been written about the Energy Policy Act of 2005 exempting oil and gas operations using hydraulic fracturing from the purview of certain federal environmental laws. Far less attention has been paid to George W. Bush’s Executive Order 13211 (EO 13211), entitled “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution or Use.” The executive order requires federal agencies to evaluate the impact of federal regulations on “supply, distribution and use of energy.” This study examined the impact of EO 13211 on United States environmental and conservation regulations proposed and promulgated by federal agencies. The study found …

Puerto Rico’S Community Health Centers In A Time Of Crisis, Peter Shin, Jessica Sharac, Marie Nina Luis, Sara J. Rosenbaum

Geiger Gibson/RCHN Community Health Foundation Research Collaborative

In 2014, Puerto Rico’s twenty federally funded community health centers, operating in 71 sites located throughout the Commonwealth, served 330,736 patients, approximately one in ten Commonwealth residents. Compared to other Puerto Rico residents, health center patients are less likely to be insured. Despite considerable growth in Medicaid as a result of the supplemental funding provided under the Affordable Care Act, in 2014, 12.2% of health center patients remained uninsured.

Compared to health centers outside Puerto Rico, Puerto Rico’s health centers show a greater proportion of Medicaid patients served (69% compared to 46% outside Puerto Rico), a greater dependence on physician …

Health Center Trends: Recent Experience In Medicaid Expansion And Non-Expansion States., Peter Shin, Jessica Sharac, Julia Zur, Sara J. Rosenbaum, Julia Paradise

Geiger Gibson/RCHN Community Health Foundation Research Collaborative

In thousands of medically underserved communities across the U.S., community health centers enroll lowincome people in health coverage and provide care to millions of patients. Against the backdrop of significant health center expansion over several years and a full year of expanded health coverage under the Affordable Care Act (ACA), this brief examines change between 2013 and 2014 in the volume and health coverage profile of health center patients, and health center enrollment activities and service capacity, comparing states that implemented the ACA Medicaid expansion in 2014 and states that did not expand Medicaid in 2014. The study is based …

Book Review: Body Banking From The Bench To The Bedside, Natalie Ram

All Faculty Scholarship

How much is a kidney worth? An ounce of breast milk? Genetic material from an individual facing a Parkinson's diagnosis? In today's America, it depends on who is selling. One might think that such body products are beyond value or that their value depends on the individual characteristics of the supplier. But under existing American law and practices, what matters more is whether the seller is also the supplier of that body product, or whether the seller is another entity, such as a pharmaceutical company, hospital, or biobanker.

Resurrecting Health Care Rate Regulation, Erin C. Fuse Brown

Faculty Publications By Year

Our excess health care spending in the United States is driven largely by our high health care prices. Our prices are so high because they are undisciplined by market forces, in a health care system rife with market failures, which include information asymmetries, noncompetitive levels of provider market concentration, moral hazard created by health insurance, multiple principal-agent relationships with misaligned incentives, and externalities from unwarranted price variation and discrimination. These health care market failures invite a regulatory solution. An array of legal and policy solutions are typically advanced to control our health care prices and spending, including: (1) market solutions …

Medicare Part B Premiums And Social Security Benefits, Sally Coberly

National Health Policy Forum

This paper describes the annual determination of beneficiaries' premiums for voluntary Medicare Part B coverage and a provision known as "hold harmless." The hold-harmless provision prevents a beneficiary's Social Security payments from being reduced as a result of an increase in the Part B premium. Because there was no cost-of-living increase for Social Security benefits for 2016, the hold-harmless provision will be in effect. This paper discusses what happens to premiums in 2016 for beneficiaries who are not held harmless—new beneficiaries, beneficiaries who do not participate in Social Security, those who are dually eligible for Medicare and Medicaid, and higher-income …

Forced Migration, The Human Face Of A Health Crisis, Lawrence O. Gostin, Anna E. Roberts

Georgetown Law Faculty Publications and Other Works

Nearly 60 million refugees, asylum-seekers and internally displaced persons (IDPs) fled their homes in 2014, predominately from war-torn Syria, Afghanistan and Somalia. The global response to assisting this vulnerable group has been wholly incommensurate with the need given the profound health hazards faced by forced migrants at each stage of their journey. The majority of forced migrants are housed in lower-income countries that do not have the infrastructure to assist the significant numbers of individuals who are crossing their borders and the humanitarian organizations who seek to assist in the response are grossly underfunded and under-resourced.

Countries have varying responsibilities …

The International Health Regulations 10 Years On: The Governing Framework For Global Health Security, Lawrence O. Gostin, Mary C. Debartolo, Eric A. Friedman

Georgetown Law Faculty Publications and Other Works

The World Health Organization (WHO) and its global health security treaty, the International Health Regulations (2005) (IHR) have lost the world's confidence after the West African Ebola epidemic. The epidemic led to several high-level reviews of the IHR and global health security more broadly. Here, we propose a series of recommendations for operational and legal reforms to enhance the functioning of the FCGH. It is critical that WHO act on them quickly, before the window of opportunity for fundamental reform closes.

WHO should ensure that all states fulfill their obligations to develop national core surveillance and response capacities, including through …

Meaningful Use Of Health Information Technology: Proving Its Worth?, Lisa Sprague

National Health Policy Forum

Health policymakers in recent years have looked to the implementation of health information technology (IT)—electronic health records and the like—as a means to improve quality, reduce costs, and achieve better health outcomes across populations. But implementing health IT in a meaningful way must go beyond purchasing medical records software. The U.S. Department of Health and Human Services (HHS) devised a set of measures and incentives for hospitals and eligible medical professionals within Medicare or Medicaid to mark successive stages of effective IT implementation. This issue brief discusses the history of meaningful use, the measures used to evaluate effectiveness, and the …

In Re Guardianship Of Hailu, 131 Nev. Adv. Op. 89 (Nov. 16, 2015), Adrienne Brantley

Nevada Supreme Court Summaries

The Court determined that under NRS § 451.007 (the Uniform Determination of Death Act) the District court failed to consider whether the American Association of Neurology (AAN) guidelines adequately measure all functions of the entire brain and whether the guidelines are considered accepted medical standards by states that have adopted the Act.

Regulating Drug Promotion To Promote The Public Health: A Response To Bennett, Et Al., Patricia J. Zettler

Faculty Publications By Year

No abstract provided.

Medicare's Post-Acute Care Payment: An Updated Review Of The Issues And Policy Proposals, Sally Coberly

National Health Policy Forum

Medicare spending on post-acute care provided by home health agencies, skilled nursing facilities, inpatient rehabilitation facilities, and long-term care hospitals accounted for about 10 percent of total program outlays in 2013. The Medicare Payment Advisory Commission and others have noted several long-standing problems with the payment systems for post-acute care and have suggested refinements to Medicare's post-acute care payment systems that are intended to encourage the delivery of appropriate care in the right setting for a patient's condition. The Patient Protection and Affordable Care Act of 2010 contained several provisions that affect the Medicare program's post-acute care payment systems, as …

Newsletter Fall 2015

Newsletter

No abstract provided.

Mid-Atlantic Ethics Committee Newsletter, Fall 2015

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.

Law & Healthcare Newsletter, Vol. 23, No. 1, Fall 2015

Law & Health Care Newsletter

No abstract provided.

Three Words And The Future Of The Affordable Care Act, Nicholas Bagley

Articles

As an essential part of its effort to achieve near universal coverage, the Affordable Care Act (ACA) extends sizable tax credits to most people who buy insurance on the newly established health care exchanges. Yet several lawsuits have been filed challenging the availability of those tax credits in the thirty-four states that refused to set up their own exchanges. The lawsuits are premised on a strained interpretation of the ACA that, if accepted, would make a hash of other provisions of the statute and undermine its effort to extend coverage to the uninsured. The courts should reject this latest effort …

When Biopharma Meets Software: Bioinformatics At The Patent Office, Saurabh Vishnubhakat, Arti K. Rai

Faculty Scholarship

Scholars have spilled much ink questioning patent quality. Complaints encompass concern about incoming applications, examination by the U.S. Patent and Trademark Office (“USPTO”), and the USPTO’s ultimate output. The literature and some empirical data also suggest, however, that applications, examination, and output may differ considerably based on technology. Most notably, although definitions of patent quality are contested, quality in the biopharmaceutical industry is often considered substantially higher than that in information and communications technology (ICT) industries.

This Article presents the first empirical examination of what happens when the two fields are combined. Specifically, it analyzes the creation and early history …

Mandatory Process, Matthew J.B. Lawrence

Faculty Scholarly Works

This Article suggests that people tend to undervalue their procedural rights—their proverbial “day in court”—until they are actually involved in a dispute. The Article argues that the inherent, outcome-independent value of participating in a dispute resolution process comes largely from its power to soothe a person’s grievance— their perception of unfairness and accompanying negative emotional reaction—win or lose. But a tendency to assume unchanging emotional states, known in behavioral economics as projection bias, can prevent people from anticipating that they might become aggrieved and from appreciating the grievance-soothing power of process. When this happens, people will waive their procedural rights …

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 …

Procedural Triage, Matthew J.B. Lawrence

Faculty Scholarly Works

Prior scholarship has assumed that the inherent value of a “day in court” is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a “day in court” can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, …

Imagining Global Health With Justice: In Defense Of The Right To Health, Eric A. Friedman, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The singular message in Global Health Law is that we must strive to achieve global health with justice—improved population health, with a fairer distribution of benefits of good health. Global health entails ensuring the conditions of good health—public health, universal health coverage, and the social determinants of health—while justice requires closing today’s vast domestic and global health inequities. These conditions for good health should be incorporated into public policy, supplemented by specific actions to overcome barriers to equity.

A new global health treaty grounded in the right to health and aimed at health equity—a Framework Convention on Global Health (FCGH)—stands …

Challenges Of Forecasting Physician Workforce Needs Amid Delivery System Transformation, Rob Cunningham

National Health Policy Forum

As population growth and the aging of the overall population increase demand for health care, policymakers and analysts grapple with whether sufficient health care providers, particularly physicians, will be available to meet that demand. Some argue there are too few physicians already; others say our current supply-demand problems lie with efficiency. But suppose both are correct? Perhaps the real challenge is to understand how the provision of health care services is changing in response to market forces such as payment changes, patients' expectations, provider distributions, and technology innovations. This issue brief revisits what is known about evolving practice organizations, professional …

Revisiting Religious Freedom In Dordt V. Burwell, Donald Roth

Faculty Work Comprehensive List

Posting about a recent opinion handed down from the United States Court of Appeals regarding the "contraceptive mandate", part of the Affordable Care Act (ACA), from In All Things - an online hub committed to the claim that the life, death, and resurrection of Jesus Christ has implications for the entire world.

http://inallthings.org/revisiting-religious-freedom-in-dordt-v-burwell/

The Developmental Effect Of State Alcohol Prohibitions At The Turn Of The 20th Century, Mary F. Evans, Eric Helland, Jonathan Klick, Ashwin Patel

All Faculty Scholarship

We examine the quasi-randomization of alcohol consumption created by state-level alcohol prohibition laws passed in the U.S. in the early part of the 20th century. Using a large dataset of World War II enlistees, we exploit the differential timing of these laws to examine their effects on adult educational attainment, obesity, and height. We find statistically significant effects for education and obesity that do not appear to be the result of pre-existing trends. Our findings add to the growing body of economic studies that examines the long-run impacts of in utero and childhood environmental conditions.

Section 8: Looking Ahead: Abortion And The Aca Contraception Mandate, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Cms’ Proposed Changes To The Two-Midnight Rule: Partial Restoration Of Medical Judgment, Elizabeth Weeks Leonard

Popular Media

On July 1, 2015, the Centers for Medicare and Medicaid Services (CMS) announced proposed changes to the controversial Two-Midnight Rule. This payment rule clarifies the circumstances under which Medicare will consider a given hospital stay to be an inpatient service (and therefore reimbursable at a higher rate under Medicare Part A), versus an outpatient service (and therefore reimbursable at a lower rate under Part B). From the Health Affairs Blog, September 1, 2015.

Griswold, Geduldig, And Hobby Lobby: The Sex Gap Continues, Maya Manian

Articles in Law Reviews & Other Academic Journals

In her article, The (Non)-Right to Sex, Professor Mary Ziegler excavates the fascinating legal history of the “sex gap” — the historical failure to address sexual liberty — in the constitutional canon and offers an important cautionary tale for contemporary advocacy of marriage equality. By surfacing lost efforts to expand sexual liberty, and by linking that liberty to intersectional concerns about class, gender, and racial equality, Professor Ziegler both explains why sexual freedom has received such limited constitutional protection and shows how incrementalist litigation strategies aimed at progressive legal change have inadvertently strengthened the state’s power to delimit sexual expression. …

Diagnostics Need Not Apply, Rebecca S. Eisenberg

Articles

Diagnostic testing helps caregivers and patients understand a patient's condition, predict future outcomes, select appropriate treatments, and determine whether treatment is working. Improvements in diagnostic testing are essential to bringing about the long-heralded promise of personalized medicine. Yet it seems increasingly clear that most important advances in this type of medical technology lie outside the boundaries of patent-eligible subject matter. The clarity of this conclusion has been obscured by ambiguity in the recent decisions of the Supreme Court concerning patent eligibility. Since its 2010 decision in Bilski v. Kappos, the Court has followed a discipline of limiting judicial exclusions from …

How Has The Affordable Care Act Benefitted Medically Underserved Communities? : National Findings From The 2014 Community Health Centers Uniform Data System, Jessica Sharac, Peter Shin, Sara J. Rosenbaum

Geiger Gibson/RCHN Community Health Foundation Research Collaborative

Community health centers represent the single largest comprehensive primary health care system serving medically underserved communities, operating in more than 9,000 urban and rural locations. Newly-released data for 2014 from the Uniform Data System (UDS; the federal health center reporting system) shed important light on the impact of the Affordable Care Act in its first full year of implementation in medically underserved urban and rural communities across the U.S. These communities experience elevated poverty, heightened health risks, lack of access to primary health care, and a significantly greater likelihood that residents will be uninsured.

The UDS data show the ACA’s …