Health Law and Policy Commons^™

What Dna Can And Cannot Say: Perspectives Of Immigrant Families About The Use Of Genetic Testing In Immigration, Llilida P. Barata, Helene Starks, Patricia Kuszler, Wylie Burke

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Genetic technologies are being implemented in areas that extend beyond the field of medicine to address social and legal problems. An emerging example is the implementation of genetic testing in the family petitioning process in immigration policy. This use of genetic testing offers the potential benefits of reducing immigration fraud and making the process more efficient and accessible for immigrants, especially those without documentation. However, little is known about the positive or negative impacts of such testing on immigrant families and their communities.

This study collected empirical data through family interviews to understand the experiences and attitudes of individuals who …

Standing (In) For The Government, Sergio J. Campos

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No abstract provided.

Corporate Religious Liberty, Caroline Mala Corbin

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No abstract provided.

Investment Arbitration In East Asia And The Pacific A Statistical Analysis Of Bilateral Investment Treaties, Other International Investment Agreements And Investment Arbitrations In The Region, Sandra Friedrich, Claudia T. Salomon

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Many countries in the East Asian and Pacific (EAP) region have strengthened their networks of bilateral investment treaties (BITs) and other international investment agreements (IIAs). This growth in investment protection instruments not only illustrates the region's continued attractiveness to foreign investors, but also reflects a shift of several developing EAP countries from having been predominantly recipients of foreign investment in the past, toward becoming important sources of foreign investment abroad. Reflecting trade and investment patterns, as of December 2014, EAP countries concluded a total of at least 712 BITs and 69 other IlAs. On the heels of this development, the …

The Legality Of Delaying Key Elements Of The Aca., Nicholas Bagley

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Under the Affordable Care Act (ACA), the employer mandate — the requirement that most employers offer health insurance to their workers or pay a tax penalty — was scheduled to go into effect on January 1, 2014. Last summer, however, the Obama administration announced that it was delaying the mandate for a year. The administration has now extended the delay for midsize firms until 2016.

Long-Term Financial Burden Of Breast Cancer: Experiences Of A Diverse Cohort Of Survivors Identified Through Population-Based Registries, Reshma Jagsi, John A.E. Pottow, Kent A. Griffith, Cathy Bradley, Ann S. Hamilton, John Graff Rutgers University, Steven J. Katz, Sarah T. Hawley

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Purpose: To evaluate the financial experiences of a racially and ethnically diverse cohort of long-term breast cancer survivors (17% African American, 40% Latina) identified through population-based registries. Methods: Longitudinal study of women diagnosed with nonmetastatic breast cancer in 2005 to 2007 and reported to the SEER registries of metropolitan Los Angeles and Detroit. We surveyed 3,133 women approximately 9 months after diagnosis and 4 years later. Multivariable models evaluated correlates of self-reported decline in financial status attributed to breast cancer and of experiencing at least one type of privation (economically motivated treatment nonadherence and broader hardships related to medical expenses). …

Mind The Gap: Basic Health Along The Aca’S Coverage Continuum, Sallie Thieme Sanford [email protected]

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As ACA implementation proceeds, expansion states should mind the gap — the gap between Medicaid and Marketplace. In this transition between insurance platforms, people can stumble. As a bridge between expanded Medicaid and the insurance Marketplaces, the ACA allows states to enact a Basic Health Program (BHP) supported by federal funds. The BHP option, which has been delayed until 2015, aims to reduce insurance costs and increase care continuity for low-income individuals and families. Interested states face a complicated calculus, one with significant unknowns and moving parts. In this article, I first place this new insurance affordability program in the …

Essential Health Benefits And The Affordable Care Act: Law And Process, Nicholas Bagley, Helen Levy

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Starting in 2014, the Affordable Care Act (ACA) will require private insurance plans sold in the individual and small-group markets to cover a roster of "essential health benefits." Precisely which benefits should count as essential, however, was left to the discretion of the Department of Health and Human Services (HHS). The matter was both important and controversial. Nonetheless, HHS announced its policy by posting on the Internet a thirteen-page bulletin stating that it would allow each state to define essential benefits for itself. On both substance and procedure, the move was surprising. The state-by-state approach departed from the uniform, federal …

Abortion Distortions, Caroline Mala Corbin

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No abstract provided.

Emergency Response: A Systemic Approach To Diaper Rash, Chest Pain, And Medicaid In The Ed, Sallie Thieme Sanford [email protected]

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In an effort to rein in health care costs, states have focused on non-emergent use of the Emergency Department (ED) by people with Medicaid coverage, although this is an issue that cuts across payor groups. Particularly in light of the Affordable Care Act insurance expansions, I argue for a system-based approach that views ER overutilization as less a reflection of poor judgment on the part of patients and more a consequence of poor access to primary care and poor systems for managing the complex circumstances of high utilizers. I describe a state program of seven “best practices,” and argue that …

Bedside Bureaucrats: Why Medicare Reform Hasn't Worked, Nicholas Bagley

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Notwithstanding its obvious importance, Medicare is almost invisible in the legal literature. Part of the reason is that administrative law scholars typically train their attention on the sources of external control over agencies’ exercise of the vast discretion that Congress so often delegates to them. Medicare’s administrators, however, wield considerably less policy discretion than the agencies that feature prominently in the legal commentary. Traditional administrative law thus yields slim insight into Medicare’s operation. But questions about external control do not—or at least they should not—exhaust the field. An old and often disregarded tradition in administrative law focuses not on external …

Taxing The Platypygous, James J. White

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This Article maintains that obesity in the United States is an enormous public health issue that causes the health care costs of the obese Americans greatly to exceed those of citizens of normal weight. Recognizing that that much of that cost will be born by publicly financed programs and that the taxes supporting those programs will constitute an externality that the fat impose on the thin, the Article proposes a tax on high calorie food-but only when that food is purchased by the obese. The Article addresses many of the administrative, moral and other objections to a tax aimed at …

Does The Individual Mandate Coerce?, Raphael Boleslavsky, Sergio J. Campos

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The Patient Protection and Affordable Care Act includes an individual mandate that penalizes individuals who do not purchase health insurance. Critics of the individual mandate, including a majority of justices on the Supreme Court, contend that Congress cannot use its Commerce Clause power to coerce individuals to buy a product. Supporters concede that the mandate coerces but argue that it is otherwise permissible under the Commerce Clause. This article questions whether the individual mandate coerces. It uses a simple economic model to show that, under certain conditions, the individual mandate induces insurers to sell health insurance at a price each …

The Contraception Mandate, Caroline Mala Corbin

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Under the new health care regime, health insurance plans must cover contraception. While religious employers are exempt from this requirement, religiously affiliated employers are not. Several have sued, claiming that the "contraception mandate" violates the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act. This Essay explains why the contraception mandate violates none of them.

Comparative Pragmatism Versus Comparative Formalism In The Abortion Context, Caroline Bettinger-López

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No abstract provided.

Can Consumers Control Health-Care Costs?, Mark A. Hall, Carl E. Schneider

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The ultimate aim of health care policy is good care at good prices. Managed care failed to achieve this goal through influencing providers, so health policy has turned to the only market-based option left: treating patients like consumers. Health insurance and tax policy now pressure patients to spend their own money when they select health plans, providers, and treatments. Expecting patients to choose what they need at the price they want, consumerists believe that market competition will constrain costs while optimizing quality. This classic form of consumerism is today’s health policy watchword. This article evaluates consumerism and the regulatory mechanism …

Pleading As Information-Forcing, Alexander Reinert

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Academics, judges, and practitioners have devoted much attention to the potential impact of the federal pleading standards announced in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Many have criticized Iqbal and Twombly on procedural, substantive, and policy grounds. And although most everyone agrees that the cases mark a break with past liberal pleading rules and have changed pleading practice, there is little agreement about precisely how the cases have affected ultimate outcomes. Indeed, there is much confusion about what exactly the new rules require of a pleader.

In this Article, …

Teaching Health Law In Rural Ethiopia: Using A Pepfar Partnership Framework And India's Shanbaug Decision To Shape A Course, Sallie Thieme Sanford [email protected]

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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 …

Designing Model Homes For The Changing Medical Neighborhood: A Multi-Player Pilot Offers Lessons For Aco And Pcmh Construction, Sallie Thieme Sanford [email protected]

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This Article first describes the ingrained construction incentives in our current health care system and the challenges they present. The Article then turns to key innovations to address these challenges, with a particular focus on accountable care and medical homes. Next, the Article considers the early spec houses" that provide the model for the PCMHs under development throughout the country. Then, the Article focuses on the design and finance features of Washington's ongoing pilot. Finally, the Article concludes with thoughts on a series of questions raised by this pilot and others like it. Ultimately, what medical home designs are best …

Beyond Separation In Federalism Enforcement: Medicaid Expansion, Coercion, And The Norm Of Engagement, Charlton C. Copeland

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National Federation of Independent Business v. Sebelius may be known, in both the popular and academic commentaries, as the case about the Affordable Care Act's Individual Mandate provision. History may record it as one of the most significant cases in the jurisprudence of cooperative federalism. In invalidating part of the Medicaid Expansion provision, the Roberts Court became the first to invalidate a federal spending statute as unconstitutionally coercive of state governments. This decision has the potential to impact federal-state cooperative arrangements such as No Child Left Behind, and others far beyond the health care context.

This Article argues that lack …

Debate: The Contraception Mandate And Religious Freedom, Steven D. Smith, Caroline Mala Corbin

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No abstract provided.

Miami's Medical-Legal Partnership: Preparing Lawyers And Physicians For Holistic Practice, Jonel Newman

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No abstract provided.

Sex, Privacy And Public Health In A Casual Encounters Culture, Mary D. Fan

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The regulation of sex and disease is a cultural and political flashpoint and recurring challenge that law's antiquated arsenal has been hard- pressed to effectively address. Compelling data demonstrate the need for attention—for example, one in four women aged fourteen to nineteen is infected with at least one sexually transmitted disease ("STD"); managing STDs costs an estimated $15.9 billion annually; and syphilis, once near eradication, is on the rise again, as are the rates of HIV diagnosis among people aged fifteen to twenty-four. Public health officials on the front lines have called for paradigm changes to tackle the enormous challenge. …

Malpractice Suits And Physician Apologies In Cancer Care, Eugene Chung, Jill R. Horwitz, John A.E. Pottow, Reshma Jagsi

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Conside the following case: The patient is a 44-year-old woman who presents for radiation treatment of an isolated locoregional recurrence of breat cancer in her chest wall, 3 years after undergoing masectomy. At the time of diagnosis, she had T2N2M0 disease, with four of 15 lymph nodes involved with tumor. She received a masectomy with negative margins and appropriate chemotherapy, but none of her physicians talked to her about postmasectomy radiation therapy, which would clearly have been indicated to reduce her risk of locoregional failure and would have been expected to improve her likelihood of survival. She asks the radiation …

The Unaffordable Health Care Act - A Reponse To Professors Bagley And Horwitz, Douglas A. Kahn, Jeffrey H. Kahn

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The Patient Protection and Affordable Care Act of 2010 has stirred considerable controversy. In the public debate over the program, many of its proponents have defended it by focusing on what is sometimes called the “free-rider” problem. In a prior article, we contended that the free-rider problem has been greatly exaggerated and was not a significant factor in the congressional decision to adopt the Act. We maintained that the free-rider issue is a red herring advanced to trigger an emotional attraction to the Act and distract attention from the actual issues that favor and disfavor its adoption. In a recently …

Free Rider: A Justification For Mandatory Medical Insurance Under Health Care Reform?, Douglas A. Kahn, Jeffrey H. Kahn

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Section 1501 of the Patient Protection and Affordable Care Act added section 5000A to the Internal Revenue Code to require most individuals in the United States, beginning in the year 2014, to purchase an established minimum level of medical insurance. This requirement, which is enforced by a penalty imposed on those who fail to comply, is sometimes referred to as the “individual mandate.” The individual mandate is one element of a vast change to the provision of medical care that Congress implemented in 2010. The individual mandate has proved to be controversial and has been the subject of a number …

Perspective: Massachusetts' Health Care Reform And Emergency Department Utilization, Christopher Chen, Gabriel Scheffler, Amitabh Chandra

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No abstract provided.

Rural Hospital Ownership: Medical Service Provision, Market Mix, And Spillover Effects, Jill R. Horwitz, Austin Nichols

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Objective. To test whether nonprofit, for-profit, or government hospital ownership affects medical service provision in rural hospital markets, either directly or through the spillover effects of ownership mix. Data Sources/Study Setting. Data are from the American Hospital Association, U.S. Census, CMS Healthcare Cost Report Information System and Prospective Payment System Minimum Data File, and primary data collection for geographic coordinates. The sample includes all nonfederal, general medical, and surgical hospitals located outside of metropolitan statistical areas and within the continental United States from 1988 to 2005. Study Design. We estimate multivariate regression models to examine the effects of (1) hospital …

Why It's Called The Affordable Care Act, Nicholas Bagley, Jill R. Horwitz

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The Patient Protection and Affordable Care Act of 2010 (“ACA”) raises numerous policy and legal issues, but none have attracted as much attention from lawyers as Section 1501. This provision, titled “Maintenance of Mini-mum Essential Coverage,” but better known as the “individual mandate,” requires most Americans to obtain health insurance for themselves and their dependents by 2014. We are dismayed that the narrow issue of the mandate and the narrower issue of free riding have garnered so much attention when our nation’s health-care system suffers from countless problems. By improving quality, controlling costs, and extending coverage to the uninsured, the …

Shifting The Conversation: Disability, Disparities And Health Care Reform, Elizabeth Pendo

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In keeping with the theme of this symposium, I would like to invite you to consider health care reform as a political shift in our thinking about the barriers and inequalities experienced by people with disabilities in our health care system. Traditionally, when these issues have been addressed, the predominant approach has been through a civil rights framework, specifically the Rehabilitation Act of 1973' and the American with Disabilities Act of 1990 (ADA).2 Now, the Patient Protection and Affordable Care Act of 2010 (PPACA) offers a new approach. This essay will outline the barriers to health and health care experienced …