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Articles 151 - 180 of 453
Full-Text Articles in Health Law and Policy
Can I See Some Id? Banning Access To Cosmetic Breast Implant Surgery For Minors Under Eighteen , Katherine Cohen Cooper
Can I See Some Id? Banning Access To Cosmetic Breast Implant Surgery For Minors Under Eighteen , Katherine Cohen Cooper
Journal of Law and Health
In many situations it is perfectly reasonable, and in fact preferable, to allow parents to consent to medical interventions on the behalf of their minor children. Parents enjoy a constitutional liberty interest in directing the upbringing of their children; it is presumed that parents will act in the best interests of their children when they substitute their experiences and judgment for a child’s in making important life decisions.8 This article highlights, however, that when it comes to providing consent for their children to undergo medically unnecessary breast implant surgery, the rationales underlying the presumption of deference to parents and medical …
Hacking Health Care: Authentication Security In The Age Of Meaningful Use , Gordon Gantt Jr.
Hacking Health Care: Authentication Security In The Age Of Meaningful Use , Gordon Gantt Jr.
Journal of Law and Health
The rapid adoption of EHRs (Electronic Health Records), to store and communicate highly personal data, raises serious concerns in terms of privacy, security, and civil and criminal liability. This note will examine the current statutory framework for addressing electronic breaches in the health care context, examine the vulnerabilities of EHRs, and look to the established world of online banking for possible legislative and practical solutions to the challenge of keeping private health information private. Finally, this note will propose key amendments to the Health Insurance Portability and Accountability Act (HIPAA) regulations to enhance authentication security.
It's A Mistake: Insurer Cost Cutting, Insurer Liability, And The Lack Of Erisa Preemption Within The Individual Exchanges, Christopher Smith
It's A Mistake: Insurer Cost Cutting, Insurer Liability, And The Lack Of Erisa Preemption Within The Individual Exchanges, Christopher Smith
Cleveland State Law Review
In today’s society, most people receive their health insurance through their employers. If their employment-based insurer engages in cost cutting that leads to patient injury, Employee Retirement Income Security Act of 1974 (“ERISA”) preemption means that these people have no state tort-based recourse against their insurers. ERISA is a federal statute that regulates employee benefit plans, and the Supreme Court has interpreted the ERISA statute to preempt most beneficiary state tort claims against an employment-based insurer. In other words, even if the insurer, and not the doctor, caused the patient’s harm, the patient with employment-based insurance can only sue their …
Can Compulsory Health Insurance Be Justified? An Examination Of Taiwan's National Health Insurance , Chuan-Feng Wu
Can Compulsory Health Insurance Be Justified? An Examination Of Taiwan's National Health Insurance , Chuan-Feng Wu
Journal of Law and Health
Since a great paradox lies beneath the universal health insurance mandate debate in both Taiwan and the U.S., Taiwan’s experience clarifying the constitutionality of its compulsory universal health insurance program might provide valuable lessons to the U.S. The goal of this Article is to provide a theoretical basis, based upon the human rights impact assessment in public health policies and a Rawlsian theory of justice, to decide whether the restriction on individual liberty imposed by Taiwan’s compulsory NHI is constitutionally justified. An analytic four-step assessment is established to evaluate the NHI’s burden on individual liberties: (1) examine the importance, legitimacy, …
Mapping Our Future: The Impact Of Gene Patents On Scientific Research And Health Care In The United States, Caitlin E. Lanning
Mapping Our Future: The Impact Of Gene Patents On Scientific Research And Health Care In The United States, Caitlin E. Lanning
Journal of Law and Health
In September, 2011, the Senate passed H.R. 1249, the Leahy-Smith America Invents Act (“AIA”), which President Barrack Obama signed into law on September 16th. The AIA is the largest transformation to U.S. patent law since 1952. While the new legislation implements numerous, positive changes to the U.S. patent system, it fails to address any of the concerns raised by gene patent critics over the past few decades. Gene patents should be categorized as patentable subject matter within the AIA, but under a separate patent category with specifically engineered regulations designed to promote scientific research and collaboration that will in turn …
The Commerce Clause Implications Of The Individual Mandate Under The Patient Protection And Affordable Care Act , L. Darnell Weeden
The Commerce Clause Implications Of The Individual Mandate Under The Patient Protection And Affordable Care Act , L. Darnell Weeden
Journal of Law and Health
The fundamental focus of this Article is whether the decision not to buy individual health insurance as required by Congress also qualifies as valid economic activity under the Commerce Clause. This question before the Court continues the modern battle regarding the scope of Congress’s power under the Commerce Clause, and the battle regarding the regulation of economic activity continues, irrespective of the Supreme Court decision regarding PPACA, because of the continuing impact of the Supreme Court’s holding in United States v. Lopez. Part II of this Article contends that the decision not to purchase health insurance is not to be …
Finding A Cure: Incentivizing Partnerships Between Disease Advocacy Groups And Academic Commercial Researchers , Anne M. Readel
Finding A Cure: Incentivizing Partnerships Between Disease Advocacy Groups And Academic Commercial Researchers , Anne M. Readel
Journal of Law and Health
Collaborations between for-profit drug companies and not-for-profit disease advocacy groups have risen in recent years in an effort to find cures for orphan diseases. These unique and beneficial collaborations are a result of disease advocacy groups assuming a more active role in drug development through the use of “venture philanthropy,” which employs concepts and techniques from venture capitalism and applies them to achieving philanthropic goals. While these collaborations have found remarkable success, such as the discovery of the first known cure for cystic fibrosis in 2012, venture philanthropy for drug discovery presents numerous legal and social challenges. This Article examines …
The Individual Mandate As Health Care Regulation: What The Obama Administration Should Have Said In Nfib V. Sebelius, Abigail R. Moncrieff
The Individual Mandate As Health Care Regulation: What The Obama Administration Should Have Said In Nfib V. Sebelius, Abigail R. Moncrieff
Law Faculty Articles and Essays
There was an argument that the Obama Administration's lawyers could have made—but didn't—in defending Obamacare 's individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals' healthcare savings and consumption decisions. Because consumer-directed healthcare, which reaches its apex when individuals self-insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the healthcare market that arise from individual decisions to self-insure. This argument would …
Hipaa As An Evidentiary Rule: An Analysis Of Miguel M. And Its Impact , Jennifer Clark
Hipaa As An Evidentiary Rule: An Analysis Of Miguel M. And Its Impact , Jennifer Clark
Journal of Law and Health
In New York suppression of evidence is only appropriate where constitutional, statutory, or decisional authority mandates it, even if obtained by unethical or unlawful means. The courts have been split on how to apply this standard to evidence obtained in violation of HIPAA. In the case In re Miguel M., the New York Court of Appeals addressed this question for the first time, finding that such evidence should be suppressed. Because it is the first authoritative case in New York addressing the evidentiary impact of a HIPAA violation, it is tempting to read Miguel M. as creating a new evidentiary …
The Dark Side Of The Boom: The Peculiar Dilemma Of Modern False Claims Act Litigation, David S. Torborg
The Dark Side Of The Boom: The Peculiar Dilemma Of Modern False Claims Act Litigation, David S. Torborg
Journal of Law and Health
Spurred by treble damages, substantial penalties, and lucrative relator awards, litigation under federal and state False Claims Act (“FCA”) statutes has exploded in recent years. Much of that explosion stems from aggressive and creative legal theories that challenge controversial industry practices or even well-known loopholes or waste in government policy. Evidence from governmental entities can be critically important in litigating these FCA claims. Unique aspects of False Claims Act actions, however, can aggravate the risk of losing this important evidence, leaving the parties, judges, and juries without the evidentiary record necessary to equitably adjudicate these disputes. Defendants can face the …
Health Care Sharing Ministries: Scam Or Solution?, Benjamin Boyd
Health Care Sharing Ministries: Scam Or Solution?, Benjamin Boyd
Journal of Law and Health
Health Care Share Ministries (HCSMs) provide “a health care cost sharing arrangement among persons of similar and sincerely held beliefs.” HCSMs are not-for-profit religious organizations that act as clearinghouses for “those who have medical expenses and those who desire to share the burden of those medical expenses. This Article begins with a survey of the general regulatory landscape for HCSMs. Following that, four key questions about HCSMs structure the rest of this Article. The first question asks, what are HCSMs? To answer that question, this Article examines the basic aspects of the Medi-Share program and the Christian Brotherhood Newsletter. Second, …
The Stark Physician Self-Referral Law And Accountable Care Organizations: Collision Course Or Opportunity To Reconcile Federal Anti-Abuse And Cost-Saving Legislation?, Benjamin Holland Able
The Stark Physician Self-Referral Law And Accountable Care Organizations: Collision Course Or Opportunity To Reconcile Federal Anti-Abuse And Cost-Saving Legislation?, Benjamin Holland Able
Journal of Law and Health
Scholars and legal practitioners have long debated the virtues and vices of integrated models of health care delivery and financing. Few such models have been as promising or as rapidly adopted as Accountable Care Organizations (“ACOs”), the latest concept in delivering cost-effective, high-quality health care. Implementation of pre-ACO models, however, never required extensive grants of immunity to providers and suppliers from the federal Stark physician self-referral law (“Stark”) and other fraud and abuse laws. The broad waivers issued by the Centers for Medicare & Medicaid Services (“CMS”) for implementing ACOs raise unprecedented legal questions concerning Stark’s application to these hospital/physician …
The Rules Of The Fight Must Be Fair: States Should Pass A Uniform Code For Nonprofit Hospital Tax Exemption Of Real Property, Lowell R. Mintz
The Rules Of The Fight Must Be Fair: States Should Pass A Uniform Code For Nonprofit Hospital Tax Exemption Of Real Property, Lowell R. Mintz
Journal of Law and Health
The lines have been blurred between a charitable hospital and a profit-generating healthcare business. The definition of charitable care has been under pressure from government taxing authorities seeking to raise tax revenues by challenging the tax exemption for vast amounts of hospital real estate. Charitable hospitals are pushing to expand the definition of charitable care, while at the same time seeking tax exemption for a growing number of satellite properties. This conflict between governments and hospitals is leading to confusion about what qualifies as charity care, warranting nonprofit status, and the privilege of tax exemption. Local taxing authorities, state courts, …
Common Law Constitutionalism, The Constitutional Common Law, And The Validity Of The Individual Mandate, Abigail R. Moncrieff
Common Law Constitutionalism, The Constitutional Common Law, And The Validity Of The Individual Mandate, Abigail R. Moncrieff
Law Faculty Articles and Essays
The paper proceeds as follows. Part I describes the constitutional common law and its interactions with common-law constitutionalism. Part II uses the fight over the constitutionality of the Patient Protection and Affordable Care Act (ACA) and its so-called "individual mandate" as a case study to flesh out the core differences between common-law constitutionalism and constitutional common law. Part III argues that a viable justification for a living constitution needs to embrace and defend the courts' essentially political nature, confronting head-on the (skyscraper) originalists' sense that courts should never do politics.
Transcript: The Case For National Political (Rather Than State Or Judicial) Regulation Of Healthcare, Abigail R. Moncrieff
Transcript: The Case For National Political (Rather Than State Or Judicial) Regulation Of Healthcare, Abigail R. Moncrieff
Law Faculty Articles and Essays
One place where judges are becoming increasingly involved is in dormant Commerce Clause cases, and it would have been possible to issue the exact same holding in Sorrell by using dormant commerce analysis. To make the exact same challenge (it would have been up to the litigants, but) it would have been possible to present a similar challenge on dormant Commerce Clause grounds and to have said that this creates uneven regulation for pharmaceutical companies that need to craft different marketing approaches for different states according to different rules about what kinds of data they're allowed to use and not …
Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff
Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff
Law Faculty Articles and Essays
As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the courts' incorporation of substantive libertarian concerns into their structural federalism analyses. The breadth and depth of scholarly criticism is surprising, especially given that judges frequently choose indirect methods, including the structural and processbased methods at issue in the ACA litigation, for protecting substantive constitutional values. Indeed, indirect protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed "semisubstantive review" and another theorized as "judicial manipulation of legislative …
The Corporate Profit Motive & Questionable Public Relations Practices During The Lead-Up To The Affordable Care Act , John N. Maher
The Corporate Profit Motive & Questionable Public Relations Practices During The Lead-Up To The Affordable Care Act , John N. Maher
Journal of Law and Health
The purpose of this Article is two-fold: first, to highlight two problems which threaten the effectiveness of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act), and second, to invite civic and governmental dialogue to implement solutions to those problems. The Affordable Care Act is tailored to build upon what is good about the existing health care financing system in the United States. It is also calculated to maximize access to quality and affordable health care across the Nation. There remains, however, work that must be done to neutralize risks to the foundational requirements of consistency and …
Emergency Powers Of The Executive: The President’S Authority When All Hell Breaks Loose, Joshua L. Friedman
Emergency Powers Of The Executive: The President’S Authority When All Hell Breaks Loose, Joshua L. Friedman
Journal of Law and Health
Within the perspective of Hamilton‘s admonition against limiting executive authority, this Article endeavors to generally discuss the historical and recent separation of powers issues arising with an active executive branch. Part II gives a brief overview of executive powers and their limitations: first discussing what actions are strictly executive in character, and then presenting Congress‘ attempts to question the executive‘s emergency powers and addressing the Judicial branch‘s struggle with finding a balance between judicial oversight and political question doctrine. Part III reviews specifically enumerated powers of the executive in emergencies where executive action is justified by the constitution, such as …
Cost-Benefit Federalism: Reconciling Collective Action Federalism And Libertarian Federalism In The Obamacare Litigation And Beyond, Abigail R. Moncrieff
Cost-Benefit Federalism: Reconciling Collective Action Federalism And Libertarian Federalism In The Obamacare Litigation And Beyond, Abigail R. Moncrieff
Law Faculty Articles and Essays
This Article argues that most commentators have exaggerated all three of the relevant issues with Obamacare: its efficiency gains, its liberty costs, and its departure from the status quo ante's federalist balance. The collective action problem with state insurance regulation is not as bad as scholars of collective action federalism have argued; the liberty implications of the individual mandate are not as extreme as scholars of libertarian federalism have argued; and the shift from state to national power is not as significant as the litigants and courts have argued. Although I do not make the strong claim that Obamacare reaches …
Global Health Law Norms And The Ppaca Framework To Eliminate Health Disparities, Gwendolyn R. Majette
Global Health Law Norms And The Ppaca Framework To Eliminate Health Disparities, Gwendolyn R. Majette
Law Faculty Articles and Essays
This Article analyzes how PPACA constitutes framework legislation that complies with global health law norms protecting a right to health in its approach to the reduction of health care disparities for racial and ethnic minorities in the United States. Part I identifies the global health laws that impose a duty on the United States to eliminate health disparities for people of color. Part II analyzes the legislative framework that PPACA creates to protect the right to health and eliminate health care disparities. Finally, Part III concludes with my recommendations on future efforts to reduce and eliminate health care disparities for …
A Graceful Exit: Redefining Terminal To Expand The Availability Of Physician-Facilitated Suicide, Browne C. Lewis
A Graceful Exit: Redefining Terminal To Expand The Availability Of Physician-Facilitated Suicide, Browne C. Lewis
Law Faculty Articles and Essays
For almost ten years, Oregon stood alone as the state that permits terminally ill persons to choose the time and manner of their deaths. Finally, in 2009, Oregon received company when the state of Washington’s physician facilitated suicide statute officially went into effect in March of that year. Supporters of the statutes hailed the enactments as a victory for persons seeking to die with dignity. Persons from groups like Compassion & Choices vowed to seek similar legislation in the remaining states. Representatives from the Washington State Medical Association, hospice groups and hospitals argued that the mandates of the statutes place …
Bridging The Great Divide—A Response To Linda Greenhouse And Reva B. Siegel's "Before (And After) Roe V. Wade: New Questions About Backlash", Lolita Buckner Inniss
Bridging The Great Divide—A Response To Linda Greenhouse And Reva B. Siegel's "Before (And After) Roe V. Wade: New Questions About Backlash", Lolita Buckner Inniss
Law Faculty Articles and Essays
This essay discusses the history of Roe v. Wade as recently addressed by Linda Greenhouse and Reva B. Siegel. Going beyond their assertions, I suggest that an additional, more encompassing inquiry focuses on what factors are implicated in the politics of abortion and how these factors relate to larger social, political, and cultural conflicts both before and after Roe. By naming party politics and the Catholic Church, Greenhouse and Siegel posit two crucial elements that shaped the abortion debate. I assert, however, that what is not discussed in their Article is the way numerous other factors have figured into the …
The Consequences Of Repealing Health Care Reform In Early 2013 , J. Angelo Desantis, Gabriel Ravel
The Consequences Of Repealing Health Care Reform In Early 2013 , J. Angelo Desantis, Gabriel Ravel
Cleveland State Law Review
This Article evaluates the consequences of an early 2013 repeal of the enacted Health Care Reform. We consider the Act's significant provisions that will have taken effect by 2013. For implemented provisions, we review their current effect on coverage, costs, and care. We then evaluate the practical consequence of the loss of those provisions. For provisions that have not yet taken effect, but will before 2013, we evaluate their projected effects in considering the consequences of repeal. Finally, for provisions that will not take effect before 2014, but where significant funds and effort will be expended prior to 2014, we …
Time To Cut The Fat: The Case For Government Anti-Obesity Legislation , Stephen A. Mcguinness
Time To Cut The Fat: The Case For Government Anti-Obesity Legislation , Stephen A. Mcguinness
Journal of Law and Health
This Article examines—and ultimately rejects—this anti-paternalism argument against government anti-obesity policies. It argues that government intervention in the food industry for the purpose of stemming the American obesity epidemic is justified and survives paternalistic objections to the contrary. This Article begins by briefly outlining the nature, severity, and causes of the obesity epidemic. It considers what can be done about the problem, finding that only government intervention is capable of effectively combating the crisis. It also outlines several types of potentially successful government anti-obesity strategies. Finally, it considers the primary topic of this Article: whether government anti-obesity policies constitute unjustified …
Tax Policy And The Obesity Epidemic, Merav W. Efrat, Rafael Efrat
Tax Policy And The Obesity Epidemic, Merav W. Efrat, Rafael Efrat
Journal of Law and Health
This Article begins with a brief summary of the growing obesity epidemic in the U.S. It then explores some of the central contributing factors to the mounting obesity problem among U.S. children and adults. It also examines the adverse impact and costs associated with the obesity problem. Next, this Article discusses the justification for government intervention, as well as the benefits and disadvantages of using the tax system as a way of shaping consumption and physical activity patterns. It then summarizes recent efforts by various levels of government in the U.S. to use the tax system to affect eating and …
A Commentary: Presidents Adams And Jefferson, With A Few Others, Discuss Health Reform With A Disabled Lawyer, Gary C. Norman
A Commentary: Presidents Adams And Jefferson, With A Few Others, Discuss Health Reform With A Disabled Lawyer, Gary C. Norman
Journal of Law and Health
Washington lawyers constitute strategic actors within executive, legislative, and judicial forums. This Article discusses the interaction of Washington lawyers in these branches of government regarding healthcare law and policy. The Article discusses how access to technology inhibits a disabled lawyer from equal involvement in the governmental process. The Article also thematically presents the position Presidents Adam and Jefferson would likely harbor on healthcare reform. Public discourse must be more intellectual like that of the founding generation, and it should be improved in its civility.
The Freedom Of Health, Abigail R. Moncrieff
The Freedom Of Health, Abigail R. Moncrieff
Law Faculty Articles and Essays
This Article first draws out the freedom of health from Supreme Court precedent and demonstrates that, like other substantive constitutional rights, the freedom of health is a negative liberty that must be balanced against legitimate and compelling regulatory projects. The Article then applies that understanding of the freedom to evaluate some proposed and actual health care regulations that have made headline news in the last decade. I consider the constitutionality of the phantom death panels, the HlNl vaccine distribution program, the FDA's restrictions on access to experimental drugs, PPACA's obesity and smoking regulations, and, of course, PPACA's individual mandate. Should …
The Positive Case For Centralization In Health Care Regulation: The Federalism Failures Of The Aca, Abigail R. Moncrieff, Eric Lee
The Positive Case For Centralization In Health Care Regulation: The Federalism Failures Of The Aca, Abigail R. Moncrieff, Eric Lee
Law Faculty Articles and Essays
Although the ACA accomplishes significantly greater centralization of authority for healthcare regulation, it falls far short of the full centralization that seems functionally justified. There is no doubt that the states have played an important role in healthcare regulation throughout the nation's history, but that role is becoming increasingly irrelevant as healthcare regulation becomes increasingly technocratic—i.e., increasingly objectivist and data-driven. The ACA is a step in the right direction, but the U.S. should further centralize authority over healthcare.
Political Factors And Enforcement Of The Nursing Home Regulatory Regime, Philip C. Aka, Lucinda M. Deason, Augustine Hammond
Political Factors And Enforcement Of The Nursing Home Regulatory Regime, Philip C. Aka, Lucinda M. Deason, Augustine Hammond
Journal of Law and Health
This study analyzes the influence of political factors, oversight, and nursing home affiliation or ownership status on the enforcement of the nursing home regulatory regime, signified by the Nursing Home Reform Act ("NHRA") and its progeny. Specifically speaking, it measures, using the statistical technique of regression analysis, factors that account for variations across states in the number of deficiencies (or violations of quality standards) cited by nursing home inspectors across the states. This work is a first of its kind, an analysis not government-related, by a set of public administration scholars that systematically studies the influence of political forces on …
The Skeleton Key: Will The Federal Health Care Reform Legislation Unlock The Solutions To Diverse Dilemmas Arising From The State Health Care Reform Laboratories , Christopher R. Smith
The Skeleton Key: Will The Federal Health Care Reform Legislation Unlock The Solutions To Diverse Dilemmas Arising From The State Health Care Reform Laboratories , Christopher R. Smith
Journal of Law and Health
Given that the Reform Law is not operating on a blank slate, this article examines its impact on the health care reform efforts of three states: Hawaii, Maine, and Vermont. More specifically, this article examines each state’s health care reform plan, the outcomes of each plan in terms of achieving universal coverage or near universal coverage, and the likely impact of the federal health care reform legislation on these plans, with a particular focus on how the federal legislation and state laws will or will not work together to achieve near-universal coverage. The article aims to determine whether the Reform …