Health Law and Policy Commons^™

Nevada's Medical Malpractice Damages Cap: One For All Heirs Or One For Each?, Patrick C. Mcdonnell

Nevada Law Journal

No abstract provided.

Enough About The Constitution: How States Can Regulate Health Insurance Under The Aca, Brendan S. Maher, Radha A. Pathak

Faculty Scholarship

Last term, the United States Supreme Court upheld the constitutionality of the Affordable Care Act in a landmark decision. It is a forceful reminder that America’s oldest question — how power should be shared between federal and state sovereigns — retains powerful political salience. Critics have reflexively attacked the decision as an assault on states’ rights, while supporters have celebrated the result. Regrettably, insufficient attention has been paid to how, in actuality, health care regulatory authority has been and will be divided between federal and state governments. In this Article, we fill that gap. To do so, we apply “federalism-in-fact,” …

Treating A Chronic Case Of Discrimination: The Ninth Circuit's Prescription For Mental Health Patients' Rights In Harlick V. Blue Shield, Megan Lagreca

Villanova Law Review (1956 - )

No abstract provided.

"At The Hospital There Are No Human Rights": Reproductive And Sexual Rights Violations Of Women Living With Hiv In Namibia, Aziza Ahmed

Faculty Scholarship

This report documents the ongoing stigma and discrimination of women living with HIV in Namibia, building on prior findings and investigations on the subject, such as the 2008 research conducted by the International Community of Women Living with HIV/AIDS (ICW) and the Namibian Women’s Health Network (NWHN). The report, based upon both desk research and a field mission, examines the human rights situation related to sexual and reproductive health of women living with HIV, including the gravity and ongoing nature of forced and coerced sterilizations in Namibia. The report also provides evidence of violations of informed consent in the context …

The "Coopetition" Model: Caring For San Diego's Low-Income Population, Lisa Sprague, Jessamyn Taylor

National Health Policy Forum

This site visit explored aspects of health care delivery for Medicaid beneficiaries and the uninsured in a California county marked by a diverse population, dominant managed care, and stakeholder dedication to solving problems in a spirit of "coopetition." The program looked at the impact of California's Bridge to Reform (the state's Medicaid section 1115 waiver) on federally qualified health centers and the people they serve. Eligibility and enrollment expansions in the Low Income Health Program and Medi-Cal, health information technology adoption and its use to improve care delivery and health, and patient-centered medical homes and care coordination were discussed. The …

Implications Of Rhode Island’S Global Consumer Choice Compact Medicaid Waiver For Rebalancing Long-Term Care Under The Affordable Care Act, Edward Alan Miller, Divya Samuel, Susan Allen, Amal Trivedi, Vincent Mor

Gerontology Institute Publications

Federal approval of Rhode Island’s Global Consumer Choice Compact Global Waiver in 2009 provided Rhode Island with greater flexibility to modify its Medicaid program. Because 96% of long-term care expenditures in Rhode Island were directed toward institutional settings, a primary goal was to facilitate the state’s efforts to shift the locus of long-term care to non-institutional settings. This study draws lessons from Rhode Island’s experience with the Global Waiver for the long-term care rebalancing provisions of the Patient Protection and Affordable Care Act of 2010. Data derive from 325 archival sources and 26 semi-structured interviews. Results suggest that prospectively documenting …

Implications Of Rhode Island’S Global Consumer Choice Compact Medicaid Waiver For Designing And Implementing State Health Reform, Edward Alan Miller, Divya Samuel, Susan Allen, Amal Trivedi, Vincent Mor

Gerontology Institute Publications

Provisions in the Medicaid statute permit states to apply for waivers from traditional program requirements. On January 16, 2009, the federal government approved Rhode Island's Global Consumer Choice Compact Waiver. In exchange for a cap on combined federal and state spending of $12.075 billion through 2013, Rhode Island received greater flexibility to adopt certain Medicaid program changes. This study analyzes the design and implementation of the Global Waiver to draw general lessons for health reform at the state-level, a key concern given ongoing state discretion to improve their health care systems under the Patient Protection and Affordable Care Act. Data …

Implications Of Rhode Island’S Global Consumer Choice Compact Medicaid Waiver For Block Granting Medicaid And Other Retrenchment, Edward Alan Miller, Divya Samuel, Susan Allen, Amal Trivedi, Vincent Mor

Gerontology Institute Publications

On January 16, 2009, the Federal government approved Rhode Island’s application for a Global Consumer Choice Compact Medicaid Waiver whereby the state became the first granted permission to operate its entire Medicaid program under the state plan and a single 1115 “research and demonstration” waiver. The Global Waiver has been implemented in the context of Republican proposals to turn Medicaid into a block grant which would give states substantially more flexibility administering the program in exchange for receiving an upfront allotment from the Federal government. Proponents have held up the Global Waiver as a successful example of what might be …

Playing God: The Legality Of Plans Denying Scarce Resources To People With Disabilities In Public Health Emergencies, Wendy F. Hensel, Leslie E. Wolf

Florida Law Review

Public health emergencies can arise in a number of different ways. They can follow a natural disaster, such as Hurricane Katrina, the 2004 tsunami, and the recent earthquakes in Haiti and Chile. They may be man-made, such as the September 11 attacks and the anthrax scare. They may also be infectious. While no pandemic flu has yet reached the severity of the 1918 flu, there have been several scares, including avian flu and most recently H1N1.

Few questions are more ethically or legally loaded than determining who will receive scarce medical resources in the event of a widespread public health …

Group Life And Health Ins. V. Royal Drug Co.: The Narrowing Exemption Of The Business Of Insurance From Federal Antitrust Scrutiny , Stanley K. Yamada Jr.

Pepperdine Law Review

No abstract provided.

Truman V. Thomas: The Rise Of Informed Refusal, Thomas M. O'Neil

Pepperdine Law Review

Truman v. Thomas addresses the issue of whether or not a physician must inform a patient of the possible consequences of her refusal to submit to a diagnostic test. The California Supreme Court has determined that a physician has such a duty, and the author provides an examination of this decision and a view of previous case law in the area of informed consent. Although increasing the physician's burden of disclosure, the decision can be seen as a continuation of the trend of cases allowing patients more control over the care of their own bodies.

The Impact Of Medical Liability Standards On Regional Variations In Physician Behavior: Evidence From The Adoption Of National-Standard Rules, Michael Frakes

Cornell Law Faculty Publications

I explore the association between regional variations in physician behavior and the geographical scope of malpractice standards of care. I estimate a 30-50 percent reduction in the gap between state and national utilization rates of various treatments and diagnostic procedures following the adoption of a rule requiring physicians to follow national, as opposed to local, standards. These findings suggest that standardization in malpractice law may lead to greater standardization in practices and, more generally, that physicians may indeed adhere to specific liability standards. In connection with the estimated convergence in practices, I observe no associated changes in patient health. (JEL …

Personalized Medicine, Genetic Exceptionalism, And The Rule Of Law: An Analysis Of The Prevailing Justification For Invalidating Brca1/2 Patents In Association Of Molecular Pathology V. Uspto, Kristen L. Burge

Washington Journal of Law, Technology & Arts

As medicine advances toward a more personalized model, the significance of genetic information is growing exponentially. While unlocking the genetic code has advanced the state of medicine, it has also reinvigorated the debate over the boundaries of patentable subject matter. The potential clash between having access to state-of-the-art medicine and protecting intellectual property investments came to a head in the case, Association of Molecular Pathology v. USPTO (“Myriad”). This Article analyzes the legal opinion rendered by the district court through the unique lens of genetic exceptionalism—a concept previously reserved to social science and public policy. Then, this Article …

Liability Cure-All For Insidious Disease Claims, Susan Frankewich

Pepperdine Law Review

Recent decisions handed down in various circuits have created virtual chaos in predicting the liability and damage amounts of insidious disease claims. At least three substantially divergent theories have been adopted to impute liability to the manufacturers of the disease catalysts. Additionally, a new trust fund concept has been used on a limited basis to reconcile differences in court decisions. The trust fund approach is relatively flexible and simple to apply in apportioning damages for insidious disease claims. The author examines and analyzes these three liability theories. In conclusion, the adoption of the trust fund concept is recommended.

Medical Malpractice: The Right To Recover For The Loss Of A Chance Of Survival, Patricia L. Andel

Pepperdine Law Review

Traditionally, a plaintiff suffering from misdiagnosis has been precluded from recovery unless he could show that "but for" the misdiagnosis he would have had a better-than-even chance of recovery. While many courts have attempted to avoid this doctrine by reducing the standard of causation, this has led to inconsistent results. The better approach is to recognize that a "chance" of recovery has a compensable value in and of itself This comment will explore the concept of loss of a chance and trace its development as it relates to medical malpractice actions.

Antitrust And California's New Preferred Provider Organization Legislation: A New Alternative In Health Care Cost Containment , Carol A. Woo

Pepperdine Law Review

No abstract provided.

Aids: Do Children With Aids Have A Right To Attend School?, Gilbert A. Partida

Pepperdine Law Review

No abstract provided.

Assisted Living: Facilities, Financing, And Oversight, Carol O'Shaughnessy

National Health Policy Forum

This publication briefly describes assisted living facilities that provide long-term services and supports to people with functional or cognitive impairments who do not need the level of skilled nursing care offered in nursing homes but cannot live independently. It also describes selected resident characteristics, reviews cost and financing arrangements, and reviews state responsibilities for regulation and oversight of assisted living facilities.

Benign Sex Discrimination Revisited: Constitutional And Moral Issues In Banning Sex-Selection Abortion , George Schedler

Pepperdine Law Review

No abstract provided.

Commentary: Hospital Tax-Exempt Policy: A Comparison Of Schedule H And State Community Benefit Reporting Systems, Laura L. Hitchcock

Frontiers in Public Health Services and Systems Research

In Hospital Tax-Exempt Policy: A Comparison of Schedule H and State Community Benefit Reporting Systems, Rosenbaum et aldescribe the numerous variations between current state law in 24 states and federal requirements regarding nonprofit hospitals’ community benefit activities. The potential for nonprofit hospitals to help shape community health is great, and how states choose to address requirements regarding community benefit, and potentially reinforce the new federal requirements to incentivize hospital participation in addressing root causes of poor health, should be of significant interest to the public, policy makers and public and population health experts, given the large percentage of …

Carrots, Sticks And False Carrots: How High Should Weight Control Wellness Incentives Be? Findings From A Population-Level Experiment, Harald Schmidt

Frontiers in Public Health Services and Systems Research

Employers are increasingly using wellness incentives, including penalties for unhealthy behavior. Survey data suggests that people are willing to accept the principle of penalizing those perceived to take health risks, but the equally relevant question of the magnitude of acceptable penalties is unclear.

While the principle of penalizing overweight and obese people has some support, findings from a population-level experiment (n=1,000) suggest that the acceptable size of penalties is comparatively small, around $50: more than 10-fold below levels favored by advocates. Reward-based incentives are favored over penalty-based ones by a factor of 4. Of two different ways of framing penalty …

Family Caregivers: The Primary Providers Of Assistance To People With Functional Limitations And Chronic Impairments, Carol O'Shaughnessy

National Health Policy Forum

An extensive body of research conducted over the past several decades has documented that family or other unpaid caregivers provide the majority of care to people who need assistance because of functional limitations or multiple and complex chronic conditions. Families play a central role not only in assisting impaired family members with personal care needs, but also in helping them coordinate health care and supportive services, and, increasingly, providing and/or supervising home-based medical care. This paper presents background information on family caregiving, briefly describes federal programs that provide direct assistance to caregivers, and discusses possible future policy and practice directions.

Religious Freedom And Women's Health - Litigation On Contraception, Timothy Stoltzfus Jost

Scholarly Articles

Not available.

The Community Living Assistance Services And Supports (Class) Act: Major Legislative Provisions, Carol O'Shaughnessy

National Health Policy Forum

Update (January 3, 2013) — In 2010, Congress enacted the Community Living Assistance Services and Supports (CLASS) Act as part of the Patient Protection and Affordable Care Act (P.L. 111-148). The CLASS Act was repealed as part of the American Taxpayer Relief Act of 2012 signed by the President on January 2, 2013.

During 2011 the Department of Health and Human Services (HHS) conducted an analysis of possible CLASS implementation options consistent with the statutory requirements that the program be actuarially solvent over a 75-year period and self-funded. After a 19-month period of analysis, HHS officials stated in testimony before …

Pursuing Quality Through Medical Staff And Physician Oversight, Rick D. Barton

Center for Health Law Policy and Bioethics

No abstract provided.

Legal Aspects Of Assessing The Aging Physician, Rick D. Barton, Jamie D. Quient

Center for Health Law Policy and Bioethics

No abstract provided.

Duty To Warn Of The Risk Of Hiv/Aids Infection In Africa: An Appropriate Legal Response?, Obiajulu Nnamuchi, Remigius Nwabueze

Annals of Health Law and Life Sciences

No abstract provided.

All Roads Lead From Vietnam To Your Home Town: How Veterans Have Become Casualties Of The War On Drugs, Susan Stuart

Law Faculty Publications

No abstract provided.

Why Broccoli? Limiting Principles And Popular Constitutionalism In The Health Care Case, Mark D. Rosen, Christopher W. Schmidt

All Faculty Scholarship

Crucial to the Court’s disposition in the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which Congress never had considered and nobody thought would ever be enacted. For the five Justices who concluded the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to offer an adequate explanation for why upholding that mandate would not entail also upholding a federal requirement that all citizens purchase broccoli. The minority insisted the broccoli mandate was distinguishable. This Article argues that the fact that all the Justices insisted on providing …

Hyde-Care For All: The Expansion Of Abortion-Funding Restrictions Under Health Care Reform, Cynthia Soohoo

Publications and Research

No abstract provided.