Health Law and Policy Commons^™

Enforcing International Humanitarian Law Through The Business Responsibility To Respect Human Rights, Tara Van Ho

Faculty Articles

Insulation produced by the Danish company Rockwool—or its Russian subsidiary—lines thirty-one Russian Navy warships. Though not a weapon, this material is essential to the vessels’ operation. Did Rockwool have a responsibility under international law to stop the transfer of the insulation to the Russian Navy before Russia’s 2022 invasion of Ukraine? This article examines the business responsibilities under the 2011 United Nations Guiding Principles on Business and Human Rights (“UNGPs”). In doing so, the article finds that the business responsibility to respect human rights in the UNGPs provides a strong mechanism for enforcing international humanitarian law (“IHL”). However, it requires …

Medicaid's Broken Promise To Children, Jerron R. Wheeler

Faculty Articles

In the United States, poor children's access to necessary healthcare is determined more by geography than medical need. This variation is not the result of thoughtful local tailoring but of excessive state autonomy and passive federal oversight. The result is a fragmented and unequal system that obscures accountability and fails the Nation's most vulnerable children.

Building on scholarship showing how decentralized implementation of federal social programs can erode America's social safety net, this Article examines how one of Congress's most ambitious entitlements for children-Medicaid's Early and Periodic Screening, Diagnostic and Treatment (EPSDT) benefit has been quietly undermined. In light of …

Excluded At The Root: Health Insurance Discrimination Against Hair Loss Conditions, Stacey A. Tovino, Tracy Hresko Pearl

Faculty Articles

No abstract provided.

Artificial Intelligence And The Hipaa Privacy Rule: A Primer, Stacey A. Tovino

Faculty Articles

No abstract provided.

Federalism, State Action, And Workers’ Medical Privacy, Ani B. Satz

Faculty Articles

Injured workers entering state workers’ compensation systems effectively forego their medical privacy. This is due to widespread judicial misinterpretation of the HIPAA Privacy Rule (HPR) as excluding injured workers from federal medical privacy protections. As a result, medical privacy for workers’ compensation claims is effectively governed by state law. This Article argues that states have failed to protect the medical privacy of injured workers adequately and that there is a pressing need for legislative reform. The Article presents the first comprehensive survey in the legal literature of state action protecting the medical privacy of injured workers. Part I describes the …

Moral Panic Or Public Health Crisis? Lessons From Drugs And Gambling For “Addictive” Design, Matthew B. Lawrence, Haomin (Kevin) Yan

Faculty Articles

In her important book, Unwired: Gaining Control Over Addictive Technologies, Gaia Bernstein illustrates the value of a comparative approach, drawing lessons from fights around the regulation of tobacco and ultra-processed food for the regulation of social media. Building on Bernstein’s work, this symposium contribution aims to draw additional insight from experience with drug and gambling regulation for the regulation of social media, video games, AI, and other potentially-addictive technologies.

Specifically, after introducing Bernstein’s book and the foundation it lays, we draw six lessons from the study of psychoactive drugs and gambling. As we elaborate below: Lesson one is that …

Defederalizing Opioid Addiction Care, Matthew B. Lawrence

Faculty Articles

Lack of access to evidence-based care for drug addiction is an urgent problem amid a decades-long overdose crisis that kills tens of thousands of Americans a year. Opioid addiction is the primary driver of overdoses today, and medicines exist to treat such addiction that can dramatically improve quality of life while reducing the risk of deadly overdose by more than half. Yet fewer than one in four of the nine million Americans who need such evidence-based medical care for their addiction receive it. Chief among barriers to access are restrictive and burdensome federal requirements limiting the use of narcotic medications …

Corporate Takeover: A New Clash In The Old Struggle Between Corporate Rights And Public Health, John J. Locurto, Rachel Radke, Xyruz Villariz, Jasmine Ann Castillejos

Faculty Articles

Corporations have used the federal courts to secure many of the same constitu­tional rights as individuals. As corporate rights proliferate so does corporate power to influence and resist laws that protect the public. One such law is the Patient Protection and Affordable Care Act—legislation that reformed health insurance coverage with important implications for public health.

The ACA has been a frequent target of litigation. Recent corporate lawsuits have invoked the Religious Freedom Restoration Act to challenge the ACA’s preventive care mandate, which requires health plans to cover preventive services without cost sharing. In Braidwood Management, Inc. v. Becerra, a …

Operationalizing Power In Health Law: The Hospital Abolition Hypothesis, Matthew B. Lawrence

Faculty Articles

This symposium Article describes how prison abolitionist arguments also support the hypothesis that a defining goal of health law should be the abolition of hospitals. Like prison abolitionism, the hospital abolition hypothesis can provide a constructive way to shift the focus of legal analysis from substantive dimensions (in health law — cost, quality, access, and equity) to the dimension of power.

Rethinking Health Law Architecture, Ani B. Satz

Faculty Articles

Neither the individualistic regulatory health paradigm nor the vulnerable populations approach of public health can provide the legal structure necessary to address the most pressing problems in health care today. These approaches fail to address conflicts between individuals and populations as well as challenges to qualifying for care and are in inherent conflict with each other, sometimes within the same statute. As health concerns become more global, it is necessary to move past a vulnerable populations approach to a broader population approach that respects individual choice but does not sacrifice community health for liberty interests.

Consumer Privacy And The Dobbs Disruption, Mason R. Clark

Faculty Articles

The right to reproductive privacy is under attack in the United States, and it is losing ground. Dobbs v. Jackson Women's Health Organization, the Supreme Court's 2022 decision that overruled Roe v. Wade's constitutional protection of abortion and jeopardized privacy rights by proxy, reflects this losing posture. Scholarship in reproductive privacy varyingly critiques federal privacy initiatives, evaluates regulatory interventions, and proposes civil rights frameworks in response to Dobbs. This Article, however, pinpoints how Dobbs created a gaping hole in state consumer privacy laws even as they propagated across the United States. Currently, there are no state consumer privacy laws that …

Medicare Advantage? If You Say So. Fraud, Waste, And Abuse In Medicare Part C, John J. Locurto

Faculty Articles

Debates about health care often emphasize distributive justice. How should society allocate finite resources? Who will get access to them, who will not? Is the allocation fair? Who decides and by what standard? Answers to these questions rarely consider health care fraud, waste, and abuse. This is a material omission. Fraud alone costs the health care system billions of dollars annually, dissipating limited funds and degrading quality of care. This paper considers how fraud, waste, and abuse occur in Medicare Part C - better known as Medicare Advantage - an increasingly popular coverage option. Medicare Advantage experiences unique challenges that …

Public Health Law’S Digital Frontier: Addictive Design, Section 230, And The Freedom Of Speech, Matthew B. Lawrence

Faculty Articles

This Article argues that, even if courts are unpersuaded by the broadest arguments in favor of a public health approach to regulation of addictive design, they should nonetheless reject the platforms’ efforts to make addictive design a public-health-law-free zone. The public health and internet paradigms can be reconciled as a policy matter because addictive design threatens both public health and innovation online. The public health and internet paradigms can also be reconciled as a legal matter be-cause even strong theories of section 230 and the First Amendment, properly understood, leave states a safe harbor in which to regulate much addictive …

Climate Security Insights From The Covid-19 Response, Mark P. Nevitt

Faculty Articles

The climate change crisis and COVID-19 crisis are both complex collective action problems. Neither the coronavirus nor greenhouse gas (GHG) emissions respect political borders. Both impose an opportunity cost that penalizes inaction. They are also increasingly understood as nontraditional, novel security threats. Indeed, COVID-19’s human cost is staggering, with American lives lost vastly exceeding those lost in recent armed conflicts. And climate change is both a threat accelerant and a catalyst for conflict—a characterization reinforced in several climate-security reports. To counter COVID-19, the President embraced martial language, stating that he will employ a “wartime footing” to “defeat the virus.” Perhaps …

Addiction And Liberty, Matthew B. Lawrence

Faculty Articles

This Article explores the interaction between addiction and liberty and identifies a firm legal basis for recognition of a fundamental constitutional right to freedom from addiction. Government interferes with freedom from addiction when it causes addiction or restricts addiction treatment, and government may protect freedom from addiction through legislation empowering individuals against private actors’ efforts to addict them without their consent. This Article motivates and tests the boundaries of this right through case studies of emergent threats to liberty made possible or exacerbated by new technologies and scientific understandings. These include certain state lottery programs, addiction treatment restrictions, and smartphone …

Medicare Disadvantaged: A Raft Of Lawsuits Exposes Fraud In Medicare Part C, John J. Locurto

Faculty Articles

Healthcare fraud is a massive and stubborn problem that can be confirmed by examining the annual Health Care Fraud and Abuse Control Program Report that the United States Departments of Justice and Health and Human Services prepare.

Educating The Whole Physician: The Case For Teaching The Business Of Medicine, John J. Locurto, Adam V. Ratner

Faculty Articles

The century-old medical education paradigm emphasizes the basic sciences and clinical training. While this traditional approach churns out physicians with deep knowledge and technical proficiency, it does not prepare them for the business of practicing medicine. By omitting the business of medicine from their curricula, medical schools squander a chance to ready their students for the commercial, regulator, and legal environments in which they will treat patients. The cost of this omission is more than just a missed opportunity. Unprepared students are prone to exploitation, frustration, and burnout. While there may be no easy way to bridge the gulf between …

One Age Does Not Fit All: Late Career Practitioner Policies And Managed Care, Adella Katz, John J. Locurto

Faculty Articles

A late career practitioner policy (LCPP) is an age-based approach to screening physicians for physical, cognitive, and other limitations that could impact patient care. What makes LCPPs controversial is that they subject physicians to heightened or more frequent screenings based on arbitrary age thresholds, without specific evidence that their skills have diminished, their acuity has declined, or their performance has deteriorated. Supporters justify LCPPs based on data showing that capabilities decline with age. Aging is natural, they contend, and physicians are not immune to its effects. Critics call LCPPs discriminatory, the embodiment of capricious action that stigmatizes older practitioners by …

Not So Private, Stacey A. Tovino

Faculty Articles

Federal and state laws have long attempted to strike a balance between protecting patient privacy and health information confidentiality on the one hand and supporting important uses and disclosures of health information on the other. To this end, many health laws restrict the use and disclosure of identifiable health data but support the use and disclosure of de-identified data. The goal of health data de-identification is to prevent or minimize informational injuries to identifiable data subjects while allowing the production of aggregate statistics that can be used for biomedical and behavioral research, public health initiatives, informed health care decision making, …

Medicare "Bankruptcy", Matthew B. Lawrence

Faculty Articles

Medicare, the social insurance program for the elderly and disabled, is once again facing insolvency. Spending from the program’s hospital insurance trust fund is predicted to exceed the accumulated payroll taxes and other revenues that support the fund within the next five years, leaving Medicare unable to honor some of its obligations. Yet, what happens if and when Medicare becomes insolvent has not previously been explored in legal scholarship and is not addressed in statute or regulation. This Article confronts for the first time the major legal questions that Medicare insolvency would present. It explains what policymakers could do to …

On Florida Law, Language, And Alcohol Use Disorder, Stacey A. Tovino

Faculty Articles

No abstract provided.

An Immigration Solution For Improving Rural Healthcare, Kit Johnson

Faculty Articles

If you are one of the more than 249 million people who live in urban areas of the United States, more than 80% of the U.S. population, you’ve likely never thought much about your physical proximity to a doctor. Primary care physicians and medical specialists abound in urban America. But if you are among the more than 59 million people who live in rural areas of the country, you may well know the struggle of finding primary care, a specialist, or a dentist. That is because there is a worrying shortage of medical professionals in rural America. There is a …

The World Health Organization: A Weak Defender Against Pandemics, Chenglin Liu

Faculty Articles

Why did the World Health Organization (WHO) not act in a timely fashion to declare the coronavirus outbreak a Public Health Emergency of International Concern (PHEIC)? If it had done so, could the United States have heeded the warning and controlled the spread of the virus? Is the WHO's delay a factual cause of the calamities that the United States has suffered? This article addresses these questions. Part I examines the development of the WHO and its governance mechanism, major powers and limits, and past achievements and failures. It also explores how the WHO responded to the COVID-19 pandemic and …

The Aoc In The Age Of Covid - Pandemic Preparedness Planning In The Federal Courts, Zoe Niesel

Faculty Articles

The 2020 COVID-19 pandemic created a crisis for American society—and the federal courts were not exempt. Court facilities came to a grinding halt, cases were postponed, and judiciary employees adopted work-from-home practices. Having court operations impacted by a pandemic was not a new phenomenon, but the size, scope, and technological lift of the COVID-19 pandemic was certainly unique.

Against this background, this Article examines the history and future of pandemic preparedness planning in the federal court system and seeks to capture some of the lessons learned from initial federal court transitions to pandemic operations in 2020. The Article begins by …

An Update On Gambling Disorder, Neuroscience, And The Law, Stacey A. Tovino

Faculty Articles

No abstract provided.

Fiscal Waivers And State "Innovation" In Health Care, Matthew B. Lawrence

Faculty Articles

This Article describes how the Department of Health and Human Services (HHS) has used fiscal waiver authorities—delegated power to alter federal payments to states under Medicaid and the Affordable Care Act (ACA)—to influence state health policy choices. It highlights how the agency uses its fiscal waiver authorities to shape which reforms states choose to pursue, in some cases inspiring genuine state innovation and in others encouraging states to adopt reforms favored by HHS or discouraging states from adopting disfavored reforms. Moreover, while HHS has sometimes influenced state policy making in ways that further the substantive goals of the ACA and …

Health Reform Reconstruction, Lindsay F. Wiley, Elizabeth Y. Mccuskey, Matthew B. Lawrence, Erin C. Fuse Brown

Faculty Articles

This Article connects the failed, inequitable U.S. coronavirus pandemic response to conceptual and structural constraints that have held back U.S health reform for decades and calls for reconstruction. For more than a half-century, a cramped “iron triangle” ethos has constrained health reform conceptually. Reforms aimed to balance individual interests in cost, quality, and access to health care, while marginalizing equity, solidarity, and public health. In the iron triangle era, reforms unquestioningly accommodated four legally and logistically entrenched fixtures — individualism, fiscal fragmentation, privatization, and federalism — that distort and diffuse any reach toward social justice. The profound racial disparities and …

Pandemics, Paid Sick Leaves, And Tax Institutions, Alex Zhang

Faculty Articles

The COVID-19 pandemic is currently ravaging the world, and the United States has been largely unsuccessful at containing the coronavirus. One long-standing policy failure stands out as having exacerbated the pandemic in our country: the lack of a national mandate of paid sick leaves, without which workers face financial and workplace-cultural pressures to attend work while sick, thus spreading the virus to their fellow employees and the public at large.

This Article provides the blueprint for a national, subsidized mandate of paid sick leaves and two additional insights about our tax institutions as mechanisms of effectuating broader societal goals. It …

At A Covid Crossroads : Public Health, Patient Privacy, And Health Information Confidentiality, Stacey A. Tovino

Faculty Articles

This essay summarizes and assesses the various bulletins, guidance documents, and notices of enforcement discretion released by the federal Department of Health and Human Services regarding the application of the HIPAA Privacy Rule to the COVID-19 pandemic. Among other topics and actions, these authorities address the application of the HIPAA Privacy Rule to the use and disclosure of protected health information for public health activities, waive the application of certain HIPAA Privacy Rule requirements during the COVID-19 pandemic, and announce enforcement discretion regarding certain covered entities’ non-compliance with particular provisions within the HIPAA Privacy Rule. These authorities overwhelmingly, and appropriately, …

Covid-19 And The Hipaa Privacy Rule: Asked And Answered, Stacey A. Tovino

Faculty Articles

The severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), the virus that causes coronavirus disease 2019 (COVID-19), raises important and vexing privacy and security issues. Public health officials, law and policy makers, and members of the general public disagree, for example, regarding the amount and type of individually identifiable health data that should be collected, used, and disclosed for public health surveillance, public health investigation, and public health intervention. Stakeholders also diverge in their opinions regarding the sufficiency of federal and state data privacy and security laws. Some stakeholders believe that current statutes and regulations are sufficient to protect individually identifiable …