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Saint Louis University Journal of Health Law & Policy

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Saint Louis University Journal of Health Law & Policy

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Tackling The Next Public Health Crisis: Lessons Regarding Long-Term Care From The Covid Era, M. Sara Rosenthal, Keith R. Knapp, Laura Morton

Saint Louis University Journal of Health Law & Policy

This paper reviews multiple ethical and clinical issues during the COVID era affecting long-term care. The authors are members of one of many long-term care COVID task forces[1] that emerged in multiple jurisdictions to address a pandemic emergency. This paper applies the pandemic ethics literature that informed healthcare providers during COVID and recommends adjusting health messaging and communication that may shift responsiveness in the next public health crisis.

[1]. Kentucky Cabinet for Health and Family Services Long-Term Care Advisory Task Force (in alphabetical order): Muhammad Babar, MD, MBA, MSc, CMD, SNF medical director; Belinda Beard, BS, RN, Division Director, …

Between Private Equity And Housing Discrimination: The Long-Term Crisis In St. Louis And Beyond, Harold Braswell, Alexandra Mcnamee, Charitha Bodepudi

Saint Louis University Journal of Health Law & Policy

On December 15, 2023, Northview Village, the largest skilled nursing facility in the Saint Louis region, closed abruptly, leading to the nighttime discharge of 170 residents. This emergency, while unique to that facility, is indicative of a broader crisis in both local and, to a significant extent, national nursing homes. This crisis has partly been catalyzed by the COVID-19 pandemic, but it rests on underlying factors that are unfortunately integral to the financing and operation of long-term care. This article will argue that understanding it requires situating long-term care at the intersection of two broader historical processes: the rise of …

The Intersection Of Regulation, Quality Care Delivery, And Ethics And Compliance: Look Carefully Before Crossing!, David R. Hoffman, Ilene Warner-Maron

Saint Louis University Journal of Health Law & Policy

Quality and compliant care delivery in nursing homes remains elusive. Four main interests are currently misaligned, thereby putting nursing home residents at risk of harm. Without a clearly defined commitment to quality and compliant care and alignment of these interests, nursing home residents will remain vulnerable to severe harm.

The first key interest concerns nursing home ownership and management. Currently, over seventy percent of nursing homes are owned by for-profit entities. Previous ownership models, including non-profit, religious-based, and county-owned facilities, have largely closed or transitioned to for-profit entities. The shift in ownership significantly impacts quality and compliant care delivery. Unfortunately, …

§1983 And The Federal Nursing Home Reform Act: A Perfect Fit, Sandra H. Johnson

Saint Louis University Journal of Health Law & Policy

The Supreme Court rarely takes a case involving federal quality standards for nursing home care, and that alone would make Health and Hospital Corporation of Marion County v. Talevski (Talevski) a significant case for those interested in long-term care. The Court’s decision in Talevski, however, reaches far beyond long-term care with implications for every federally funded program that relies on the states for administration, delivery of benefits, or enforcement of standards.

Much about the Talevski case signaled that a significant change in law may be coming. The plaintiff’s cause of action relied on a statutory instrument (§1983) frequently used by …

What Went Wrong? Identifying The Historical Roots Of Racial Disparities Among Older Adults In Nursing Facilities, Gelila Selassie

Saint Louis University Journal of Health Law & Policy

In early 2020, as the nation was just becoming familiar with COVID-19, over a million nursing facility residents were already experiencing crisis-level disasters. Extreme lockdowns, increased hospitalizations, and high mortality rates plagued nursing facilities earlier and far worse than the rest of the population. Data gradually showed that facilities with higher numbers of residents of color were facing particularly dire outcomes.

Although the severity of COVID-19 was surprising, the pandemic highlighted existing and long-standing problems with the country’s long-term care facilities. Many of the problems that led to the horrible disparities during COVID-19 are rooted in a wholly insufficient long-term …

The Layered Harms Of Nursing Home Segregation, Mary Crossley

Saint Louis University Journal of Health Law & Policy

This Essay explores several dimensions of how segregation, separation, and shielding from view permit and contribute to the ethically problematic state of nursing home care in the United States. A quarter of a century ago, the Supreme Court recognized in the Olmstead decision that institutional care can function to segregate disabled people (whether young or old) from the richness of community life. Research over the past few decades confirms that racial segregation exists within the nursing home industry, and during the COVID-19 pandemic, the correlations between nursing homes’ racial makeup and their level of COVID fatalities were shocking. On another …

Whose “Best Interests”? Concerns About The Use Of Fiduciary Framing In Long-Term Care Decisions, Jennifer L. Herbst

Saint Louis University Journal of Health Law & Policy

As part of reimagining America’s long-term care system, this article will explain how today’s system is, in many ways, the logical extension of historical presumptions that are foundational to our understanding of family, medical, and organizational governance as “fiduciary” in nature. More specifically, much of our current language (operating in someone’s “best interests,” acting consistent with their “substituted judgment” if now incapacitated) and jurisprudence (parens patriae, trusts, guardianships, conservatorships, and corporate governance) descends from centuries of equity and law centered on the management of property, not people or health.

This legal framework is firmly rooted in English statutes, court opinions, …

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Saint Louis University Journal of Health Law & Policy

No abstract provided.

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Saint Louis University Journal of Health Law & Policy

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From Deference To Indifference: Judicial Review Of The Scope Of Public Health Authority During The Covid-19 Pandemic, Wendy E. Parmet

Saint Louis University Journal of Health Law & Policy

For most of American history, courts have granted public health officials significant deference in construing the scope of their own authority. This changed during the COVID-19 pandemic, especially in the federal courts, where deference was replaced with skepticism as courts used the major questions doctrine to narrow the scope of public health powers. This Article examines this development and considers its implications for public health. Part II begins by recounting the long history of judicial deference to officials’ determination of the scope of their public health powers. Part III notes some of the problems with such deference and the pre-pandemic …

Authority To Improve Or Harm Health: The Public Health Front In A Decades-Long Battle Over Governmental Powers, Sabrina Adler, Sara Bartel, Heather Wong

Saint Louis University Journal of Health Law & Policy

Backlash to local, state, and federal responses to combat COVID-19 has resulted in a small but vocal cohort of legislatures and courts trying to change long-settled and foundational principles of public health decision-making. They have shifted authority away from experts and local decision-makers, limiting emergency response in ways that also impact day-to-day public health efforts. Considering some examples of other recent preemption efforts, it is clear that COVID-era backlash is part of a longer-term deregulatory agenda, often framed as an effort to keep “big government” out of people’s lives and to preserve individual freedoms. However, the impact of such deregulation …

The Model Public-Health Emergency Authority Act, Robert Gatter

Saint Louis University Journal of Health Law & Policy

The Uniform Law Commission recently approved the Model Public-Health Emergency Authority Act (MPHEAA or the Act or the Model Act). The MPHEAA grants governors specific and plenary powers to issue public health emergency orders while also ensuring executive branch transparency and accountability. The Act improves public health emergency preparedness by resecuring the legal foundation for states to respond effectively to future emergencies. However, more work is needed to enhance data collection and support vulnerable populations in emergencies.

This Article discusses the origins of the MPHEAA, key policy and drafting choices the Drafting Committee made in creating the MPHEAA, and the …

Doing More With Less: State Public Health Emergency Powers Post-Pandemic, Kelly J. Deere

Saint Louis University Journal of Health Law & Policy

Three years after COVID-19 arrived in the United States, many governors and public health officials are equipped with fewer—not more—public health emergency powers than at the start of the pandemic. This may seem counterintuitive, considering that this virus has killed more than 1.1 million Americans and counting. While public health emergency powers were stripped on the federal, state, and local level, this loss is most acutely felt at the state executive level. Some state legislatures passed laws banning state and local governments from implementing a mask or vaccine mandate, while others amended their state emergency disaster statutes to limit the …

What Is A Public Health Lawyer Today? Acting For, Against, And Beyond Public Health, Scott Burris

Saint Louis University Journal of Health Law & Policy

Health in America is not looking good. Unique among countries in the Organization for Economic Co-operation and Development, the basic measure of national health—life expectancy—was declining even before COVID-19. Public health, both as a system of institutions and as a profession working to promote longer and healthier lives, is also struggling. The normal insularity of the field’s professional culture—including a lack of legal competency—helped undermine the response to COVID-19, which was dismal by any measure. At this difficult time, this Article considers three different ways public health lawyers can make a contribution to public health as a goal and as …

The Supreme Court’S 2022-23 Access To Court Decisions, Sarah Somers, Abigail Coursolle, Sarah L. Grusin, Jane Perkins

Saint Louis University Journal of Health Law & Policy

The Supreme Court’s 2022–23 Term yielded significant decisions bringing about goals long-sought by conservatives. This debut Term for the first Black woman Justice also included some results welcomed by progressives, including decisions on voting rights, Native American sovereignty, and individual enforcement of Spending Clause enactments. In this Article, we discuss significant decisions that have implications for access to court for civil litigants, focusing on those affecting access for low-income and marginalized litigants. We also look ahead to what the 2023–24 Term may bring for those seeking access to the courts.

The Future Of Jacobson V. Massachusetts And Modern Substantive Due Process For Public Health Preparedness, Helen S. Webster

Saint Louis University Journal of Health Law & Policy

Both the threat of public exposure to Ebola in the United States in 2014 and the COVID-19 pandemic beginning in 2020 prompted states to impose quarantine and mask mandates, among other responses, to protect the public’s health. When these state actions were eventually challenged on substantive due process grounds in courts across the nation, judges struggled to determine which legal test applied when reviewing the constitutionality of the state actions. On one hand, courts considered the precedent set forth in Jacobson v. Massachusetts, a 1905 Supreme Court case that upheld a Massachusetts vaccine mandate as a valid exercise of …

“The People” Getting Sick Of Orders: Legislative Vetoes And Checks And Balances, José Manuel Sandoval Jr.

Saint Louis University Journal of Health Law & Policy

During the COVID-19 pandemic, state legislators rushed to amend their public health emergency statutes or state’s constitution to alter the balance of power between the executive and legislative branches during public health emergencies. The power to exercise an unconditional and unilateral legislative veto of a governor’s declaration of public health emergency is among one of the most forceful of these pandemic-era amendments. The Pennsylvania legislature attempted to exercise this kind of power in June 2020 to prematurely terminate the governor’s declaration of public health emergency, which was challenged in Wolf v. Scarnati. While the Supreme Court of Pennsylvania held that …

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Saint Louis University Journal of Health Law & Policy

No abstract provided.

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Saint Louis University Journal of Health Law & Policy

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Rethinking Foundations And Analyzing New Conflicts: Teaching Law After Dobbs, Nicole Huberfeld, Linda C. Mcclain, Aziza Ahmed

Saint Louis University Journal of Health Law & Policy

This Article draws on our diverse and complementary areas of scholarly expertise and teaching experiences across law school and public health curricula to offer a multidisciplinary model for teaching in a variety of courses after Dobbs. Teaching reproductive rights and justice poses extensive challenges in the wake of Dobbs’ overruling Roe v. Wade and Planned Parenthood v. Casey, upending a half century of precedents protecting a constitutional right to abortion, and returning the issue to “the people”—and the states. This Article offers theoretical and pedagogical perspectives on teaching courses in Reproductive Rights and Justice, as well as relevant …

Teaching Dobbs As A Contemporary Case Study Of Federalism In Action And An Introduction To The Cross-Disciplinary Nature Of The Law, Antonia A.B. Miceli

Saint Louis University Journal of Health Law & Policy

With its decision in Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court ended the constitutional right to an abortion, overturning Roe v. Wade and Planned Parenthood v. Casey, and returned the issue of legal access to an abortion to the states. Prior to Dobbs, reproductive rights and the right to an abortion were firmly situated within the substantive due process and fundamental rights coverage of law school constitutional law courses. But this coverage often falls late in, or completely outside the scope of, the required constitutional law curriculum at U.S. law schools. This Article offers the …

The Shifting Landscape Of Substantive Due Process: Could Dobbs Pose A Threat To Contraceptive Rights?, Madeline C. Tatro

Saint Louis University Journal of Health Law & Policy

Nearly two years ago, the Supreme Court issued its infamous decision in Dobbs v. Jackson Women’s Health Organization, a challenge to one of the then-most restrictive abortion bans in the country. In a stunning—yet not entirely surprising—6-3 decision, the Court held that the Fourteenth Amendment’s Due Process Clause does not protect abortion as a fundamental right and returned the power to regulate abortion to the states. Of course, legal questions abound as to the future of reproductive care in the United States following this infamous decision, and Justice Thomas’ concurring opinion raises one of the largest-looming concerns. In that …

Emtala Preemption Of State Laws Restricting Emergency Abortions, Rachel N. Reeder

Saint Louis University Journal of Health Law & Policy

The Emergency Medical Treatment and Labor Act (EMTALA) was established to restrict hospitals from refusing to treat or transferring patients with an unstable emergency medical condition. While intended to protect vulnerable groups from discrimination, the duty EMTALA imposes on hospitals also applies when a pregnant patient presents to a participating emergency room experiencing an emergency medical condition where the standard of care is pregnancy termination. Since Dobbs v. Jackson Women’s Health Organization, states have enacted laws prohibiting abortions, many with no exception or exceptions too narrow for stabilizing a pregnant patient’s emergency medical condition as required by EMTALA. This …

Divine Law Or Constitutional Flaw: The Clash Of Religious Belief And Legal Neutrality In Missouri’S Abortion Ban, Caela M. Camazine

Saint Louis University Journal of Health Law & Policy

This Note explores the constitutional implications of Missouri’s recent abortion ban enacted in the wake of the Dobbs v. Jackson Women’s Health Organization decision, which overturned Roe v. Wade and Planned Parenthood v. Casey. This Note examines the clash of religious beliefs and the law by dissecting the legislative history and intent behind Missouri’s abortion ban. The ban, known as House Bill 126 or the “Missouri Stands for the Unborn Act,” took effect immediately upon certification by State Attorney General Eric Schmitt and prohibits nearly all abortions, except in cases of a narrowly defined “medical emergency.” Notably, the law invokes …

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Saint Louis University Journal of Health Law & Policy

No abstract provided.

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Saint Louis University Journal of Health Law & Policy

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Regulating The Pains Of Racial Discrimination, Alice Abrokwa

Saint Louis University Journal of Health Law & Policy

This essay examines the relationship between experiences of racial discrimination and pain, assessing how social, legal, and regulatory responses to racial pain in the United States can enable further discrimination and compound the underlying pain. The essay articulates a conceptual framework for understanding this relationship, contending that: racial discrimination can contribute to pain severity and sensitivity; patients of color seeking pain relief are subject to heavy social scrutiny, including from their medical providers; social scrutiny and regulatory restriction together limit patients’ lawful avenues for pain relief, including their access to controlled substances that are used to manage pain; patients who …

Desegregating Behavioral Health Care For Medicaid Youth, Caroline M. Marsh, Valarie K. Blake

Saint Louis University Journal of Health Law & Policy

The Supreme Court held in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 581 (1999) that it is a violation of the Americans with Disabilities Act (ADA) for states to rely on institutionalized care when home and community-based care is more appropriate. Yet, over a quarter of a century later, states persist in institutionalizing youth experiencing behavioral health disabilities. This article explores Olmstead’s impact thus far on deinstitutionalization of youth behavioral health care, and the limits of Olmstead as a vehicle for lasting change. We argue that, although recent enforcement actions reflect critical change, Olmstead enforcements alone cannot succeed …