Health Law and Policy Commons^™

A Proposal For Comprehensive And Specific Essential Mental Health And Substance Use Disorder Benefits, Stacey A. Tovino

Faculty Articles

This Article analyzes the initial efforts of the Federal Department of Health and Human Services to implement the essential mental health and substance use disorder services benefit required by section 1302(b)(1)(E) of the Affordable Care Act and proposes the adoption of a comprehensive and specific essential mental health and substance use disorder benefit set. At a minimum, the benefit set should cover medically necessary and evidence-based inpatient and outpatient mental healthcare services, inpatient substance abuse detoxification services, inpatient and outpatient substance abuse rehabilitation services, emergency mental healthcare services, prescription drugs for mental health conditions, participation in psychiatric disease management programs, …

All Illnesses Are (Not) Created Equal: Reforming Federal Mental Health Insurance Law, Stacey A. Tovino

Faculty Articles

This article is the second, and most important, installment in a three-part series that presents a comprehensive challenge to lingering legal distinctions between physical and mental illness. The basic impetus for this historical, medical, and legal project is a belief that there exists no rational or consistent method of distinguishing physical and mental illness in the context of health insurance law. The first installment in this series narrowly inquired as to whether a particular set of disorders, the postpartum mood disorders, are or should be classified as physical or mental illnesses in a range of health law contexts. This second …

Further Support For Mental Health Parity Law And Mandatory Mental Health And Substance Use Disorder Benefits, Stacey A. Tovino

Faculty Articles

In this Article, I provide additional support for my recent proposal (All Illnesses Are (Not) Created Equal: Reforming Federal Mental Health Insurance Law, Harvard Journal on Legislation, Vol. 49, forthcoming 2012.) to extend federal mental health parity law and mandatory mental health and substance use disorder benefits to all public healthcare program beneficiaries and private health plan members. I begin by examining health-related doctrine outside the context of mental health insurance law, including disability discrimination law, civil rights and human rights law, health information confidentiality law, healthcare reform law, and child and adult health and welfare law, and …

Affordable Care Act Litigation: The Supreme Court And The Future Of Health Care Reform, Lawrence O. Gostin, Kelli K. Garcia

Georgetown Law Faculty Publications and Other Works

In Florida v. HHS, a lawsuit brought on behalf of 26 states challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA), the Supreme Court will determine the future direction of health care reform in the United States. During the unprecedented 5-1/2 hours of oral arguments, the Court will hear 4 issues: the individual purchase mandate, severability, the Medicaid expansion and the Anti-Injunction Act.

The states challenging the ACA maintain that the purchase mandate uniquely penalizes individuals for failing to purchase insurance. Uninsured individuals, however, rarely do nothing. Instead, they self-insure, rely on family, and cost-shift to …

Marketing Pharmaceuticals: A Constitutional Right To Sell Prescriber-Identified Data?, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Pharmaceutical companies have strong economic interests in influencing physician-prescribing behaviors. They advertise direct-to-the-consumer and to the physician. Beyond general marketing, manufacturers promote their drugs to physicians through “detailing”—sales representatives (“detailers”) visiting medical offices to persuade physicians to prescribe their products.

By law, pharmacies receive specific information with every prescription, including the physician’s name, the drug, and the dose. Pharmacies sell these records to Prescription Drug Intermediaries (data miners), who use advanced computing to analyze prescriber-identified information (which physicians prescribe what drugs, in what dose, and with what prescribing patterns). Data miners, in turn, lease sophisticated reports to pharmaceutical companies to …

Pregnancy As 'Disability' And The Amended Americans With Disabilities Act, Jeannette Cox

School of Law Faculty Publications

The recent expansion of the Americans with Disabilities Act’s (ADA) protected class invites reexamination of the assumption that pregnant workers may not use the ADA to obtain workplace accommodations. The ADA’s scope now includes persons with minor temporary physical limitations comparable to pregnancy’s physical effects. Accordingly, the primary remaining justification for concluding that pregnant workers may not obtain ADA accommodations is that pregnancy is a physically healthy condition rather than a physiological defect. Drawing on the social model of disability, this Article challenges the assumption that medical diagnosis of “defect” must be a prerequisite to disability accommodation eligibility. The social …

An Enduring Oddity: The Collateral Source Rule In The Face Of Tort Reform, The Affordable Care Act And Increased Subrogation, Adam Todd

School of Law Faculty Publications

Today, despite significant legislative changes in healthcare insurance, tort reform, and subrogation, the collateral source rule has remained in force in many jurisdictions even in the face of rising health insurance costs. This Article argues that as long as health insurance markets are fragmented, the collateral source rule will continue to play an important normative role in the administration of the tort injury compensation process. The rule also helps deter tortious behavior, supports the insured's contractual expectations, is consistent with distributive fairness, and ensures that those engaging in risky activities bear the full cost of injuries. The collateral source will …

Woman Scorned?: Resurrecting Infertile Women's Decision-Making Autonomy, Jody L. Madeira

Articles by Maurer Faculty

Legal scholarship portrays women as reproductive decision makers in conflicting ways. The distinctions between depictions of infertile women and women considering abortion are particularly striking. A woman seeking infertility treatment, even one who faces no legal obstacles, is often portrayed as so emotionally distraught and desperate that her ability to give informed consent is potentially compromised. Yet, the legal academy has roundly rejected similar stereotypes of pregnant women considering abortion, depicting them as confident and competent decision makers. This Article argues that legal scholars' use of a "desperate woman" stereotype denies women's ability to critically assess the health risks and …

Appropriate Testing And Resolution: How To Determine Whether Appropriation Art Is Transformative Fair Use Or Merely In Unauthorized Derivative., Eric D. Gorman

St. Mary's Law Journal

This Article addresses the copyright concerns in appropriation art today and concludes that copyright law should be amended to address the complex issues found in this area of the law. Part II provides a background on appropriation art and the different facets of copyright law, including the doctrine of fair use. Part III analyzes whether appropriation art can even be considered “fair use” under the current exceptions of copyright infringement. Part IV discusses various legal tests to determine whether appropriation art that utilizes copyrighted material can exercise the doctrine of fair use against alleged copyright infringement. It also proposes a …

War Powers Pursuant To False Perceptions And Asymmetric Information In The Zone Of Twilight., Robert Bejesky

St. Mary's Law Journal

Abstract Forthcoming.

Some Thoughts On Health Care Exchanges: Choice, Defaults, And The Unconnected, Brendan Maher

Faculty Articles and Papers

One feature of the ACA that appealed to observers across the political spectrum was the creation of health insurance “exchanges.” Among other things, exchanges are intended to aid consumers in making simple and transparent choices regarding the purchase of health insurance. This Article considers how exchanges might benefit from the use of “default” options — both online and off. Given the significant number of Americans that have limited or no Internet access, offline defaults may be an attractive way to promote coverage of the “unconnected.”

What The New Deal Settled, Jamal Greene

Faculty Scholarship

Not since George H.W. Bush banned it from the menu of Air Force One did broccoli receive as much attention as during the legal and political debate over the Patient Protection and Affordable Care Act ("ACA"). Opponents of the ACA have forcefully and repeatedly argued that if Congress has the power to require Americans to purchase health insurance as a means of reducing health care costs, then it likewise has the power to require Americans to eat broccoli. Broccoli is mentioned twelve times across the four Supreme Court opinions issued in the ACA decision – that's eleven more appearances than …

"The Birth Of Death": Stillborn Birth Certificates And The Problem For Law, Carol Sanger

Faculty Scholarship

Stillbirth is a confounding event, a reproductive moment that at once combines birth and death. This Essay discusses the complications of this simultaneity as a social experience and as a matter of law. While traditionally, stillbirth didn't count for much on either score, this is no longer the case. Familiarity with fetal life through obstetric ultrasound has transformed stillborn children into participating members of their families long before birth, and this in turn has led to a novel demand on law.

Dissatisfied with the issuance of a stillborn death certificate, bereaved parents of stillborn babies have successfully lobbied state legislatures …

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

Articles

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 …

Obligatory Health, Noa Ben-Asher

Faculty Publications

The Supreme Court will soon rule on the constitutionality of the Patient Protection and Affordable Care Act passed in March 2010. Courts thus far are divided on the question whether Congress had authority under the Commerce Clause to impose the Act's "Individual Mandate" to purchase health insurance. At this moment, the public and legal debate can benefit from a clearer understanding of the underlying rights claims. This Article offers two principal contributions. First, the Article argues that, while the constitutional question technically turns on the interpretation of congressional power under the Commerce Clause, underlying these debates is a tension between …

Genes 101: Are Human Genes Patentable Subject Matter?, Andrew Bowman

Richmond Journal of Law & Technology

Genes are the fundamental building blocks of all living things. They dictate hair color, eye color, even susceptibility to cancer. As such, genes inherently possess untold power. The ability of a sole company to wield this omnipotence makes a human gene patent highly sought after.

A Case Of Conflict Of Cultures: End-Of-Life Decision Making Among Asian Americans, Pat K. Chew

Cardozo Journal of Conflict Resolution

This essay presents a case example of a conflict between two cultures. One culture is the U.S. mainstream culture, as illustrated in a federal statute, the Patient Self-Determination Act. This statute provides legal guidelines for health care providers dealing with individuals' end-of-life decision making. Lawyers and health care providers refer to these guidelines in their counseling and treatments, apparently assuming that these guidelines are in the best interest of those they serve. The other culture is Asian American culture and its approach to end-of-life decision making. As this essay will discuss, Asian Americans have strong and long-established beliefs, values, and …

At Risk Patients And Doctors: Why Increased Agency Enforcement And Private Causes Of Action Under The Supremacy Clause Are Needed To Protect Medicaid Providers And Beneficiaries, Steven Clark

Kentucky Law Journal

No abstract provided.

Health Care Reform, Wellness Programs And The Erosion Of Informed Consent, Matt Lamkin

Kentucky Law Journal

No abstract provided.

"A Matter Of Grace": Alternatives To Billing Insurance For Sexual Assault Forensic Examinations, Jessica C. Harvey

Kentucky Law Journal

No abstract provided.

Why The Initiative Process Is The Wrong Way To Go: Lessons We Should Have Learned From Proposition 215, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

Racial Disparities In Accessing Health Care And Health Status, Ruqaiijah Yearby

All Faculty Scholarship

Point (Overview): Interpersonal and institutional racial biases are the principal reasons for racial disparities in accessing health care and disparities in African Americans’ health status, which can only be addressed by acknowledging and putting an end to interpersonal and institutional racial bias in the health care system that adversely affects the health status African-Americans.

Counterpoint (Overview): The irrational structure of health care, which is based on ability to pay, rather than need is the main cause of racial disparities in health, which will not be equalized until the structure of the health care system is fixed or when African Americans’ …

Regulators As Market-Makers: Accountable Care Organizations And Competition Policy, Thomas L. Greaney

All Faculty Scholarship

Of the many elements animating structural change under health reform, Accountable Care Organizations (ACOs) have drawn the greatest attention. The ACO strategy entails regulatory interventions that at once aim to reshape the health care delivery system, improve outcomes, promote adoption of evidence based medicine and supportive technology, and create a platform for controlling costs under payment system reform. Ambitious aims to be sure. Implementation, however, has proved a wrenching process. This article looks at the intersection of markets and regulation under the Affordable Care Act. Specifically, it analyzes regulatory interventions under the MSSP designed to foster commercial market competition. Assessing …

Dynamics Of Healthcare Reform: Bitter Pills Old And New, Christopher N.J. Roberts

Vanderbilt Journal of Transnational Law

The United States is at a crossroads--albeit one it has visited several times before. Although the Supreme Court has ruled upon the constitutionality of the Patient Protection and Affordable Care Act, the polarizing controversy surrounding national healthcare that began several generations ago is likely to continue into the foreseeable future. In this latest round of national debates, the issue of healthcare has been framed exclusively as a domestic issue. But history shows that the question of national healthcare in the United States has also been an extremely important issue for international law and international politics. To shed light on the …

"The Life Of The Flesh Is In The Blood": State Storage And Usage Of Baby's Blood Sample, Jaclyn S. D'Arminio

Cardozo Journal of Equal Rights & Social Justice

The note highlights the ethical, legal, and policy challenges surrounding Newborn Screening (NBS) programs, particularly the storage and use of newborn bloodspots. It argues that while these programs provide crucial health benefits, the lack of informed consent regarding the retention and use of bloodspots raises significant privacy concerns. The central argument is that balancing public health benefits with individual privacy rights requires robust informed consent frameworks to maintain trust and ensure scientific progress.

Litigating Federal Health Care Legislation And The Interstices Of Procedure,, Wendy Collins Perdue

Law Faculty Publications

Forward to the 2012 Allen Chair Symposium issue, focused on the litigation challenges to the Patient Protection and Affordable Care Act ("ACA").

2010-2011 Veterans Law Update, Tara L. Casey

Law Faculty Publications

2011 saw multiple changes to the laws relating to veterans, their rights and benefits, and the Department of Veterans Affairs ("VA"). This Article will cover select updates to the field of veterans law codified in the Code of Federal Regulations and the United States Code, proposed in the Federal Register, and adjudicated in the courts. Part I will cover updates related directly to veterans' benefits and rights. Part II will focus on updates to rules involving veterans' caregivers and healthcare facilities. Part III will cover proposed rules dealing with veterans' claims and insurance. Part IV will focus on rules and …

Internet Advertising After Sorrell V. Ims Health: A Discussion On Data Privacy & The First Amendment, Agatha M. Cole

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Breaking The Cycle Of “Unequal Treatment” With Health Care Reform: Acknowledging And Addressing The Continuation Of Racial Bias, Ruqaiijah A. Yearby

All Faculty Scholarship

Since the Civil War access to health care in the United States has been racially unequal. This racially unequal access to health care remains even after the passage of Title VI of the Civil Rights Act of 1964 (“Title VI”) and the election of an African-American President. Both of these events held the promise of equality, yet the promise has never been fulfilled. Now, many hail the passage of the Patient Protection and Affordable Health Care Act (“ACA”) as the biggest governmental step in equalizing access to health care because it has the potential to increase minority access to health …

Advancing Health Law & Social Justice In The Clinic, The Classroom And The Community, John J. Ammann

All Faculty Scholarship

Law school clinics are paramount to developing law school graduates who embrace their “special responsibility for the quality of justice,” as well as their role in ensuring equal access to justice for marginalized, impoverished and underserved members of society. This responsibility permeates every aspect of lawyering, especially the practice of health law. This article explores, first, how clinics and social justice fit into the practice of health law and into the training of future health law attorneys and policymakers. Second, it defines social justice in the context of health and, finally, it provides examples that demonstrate how we can, and …