Health Law and Policy Commons^™

The Rules Of The Fight Must Be Fair: States Should Pass A Uniform Code For Nonprofit Hospital Tax Exemption Of Real Property, Lowell R. Mintz

Journal of Law and Health

The lines have been blurred between a charitable hospital and a profit-generating healthcare business. The definition of charitable care has been under pressure from government taxing authorities seeking to raise tax revenues by challenging the tax exemption for vast amounts of hospital real estate. Charitable hospitals are pushing to expand the definition of charitable care, while at the same time seeking tax exemption for a growing number of satellite properties. This conflict between governments and hospitals is leading to confusion about what qualifies as charity care, warranting nonprofit status, and the privilege of tax exemption. Local taxing authorities, state courts, …

County Care: A Step Forward For Adequate Health Insurance For Undocumented Immigrants?, Alisha Howell

Public Interest Law Reporter

No abstract provided.

A "Common" Proposal, Stacey A. Tovino

Scholarly Works

The Federal Policy for the Protection of Human Subjects (the “Common Rule”) is codified in separate regulations by seventeen federal departments and agencies, including the Department of Health and Human Services (HHS). HHS’s version of the Common Rule currently contains a basic policy for the protection of all human subjects, codified at Subpart A of the Common Rule, as well as special provisions governing human subjects research involving three sets of vulnerable populations, including pregnant women, fetuses, and neonates (Subpart B); prisoners (Subpart C); and children (Subpart D). This Article proposes that HHS amend the Common Rule to add a …

Getting Paid In Probate Court., Robert J. Augsburger

St. Mary's Law Journal

After reviewing the Texas Probate Code, the Texas Property Code, and current case law, this Essay compiles relevant information designed to assist attorneys in obtaining payment for services provided to their clients. An attorney ad litem is an officer of the court whose “fees are assessed as costs of suit” rather than requiring the ad litem to seek “fees only from his clients’ recovered shares.” Therefore, each attorney ad litem appointed under § 34A of the Texas Probate Code is entitled to reasonable compensation for services in the amount set by the court. The attorney’s fees “must be supported by …

The Co-Author Prenup., David A. Schlueter

St. Mary's Law Journal

Producing a book or article with co-authors is not an easy task. There are six potential issues one might consider before deciding to co-author a book or article. First, do you really want to be a co-author? Second, how many co-authors are going to be involved in the project? Having more than one co-author can make the departure of a co-author less of an issue, but each co-author needs to have a clearly defined role. Third, what role will each member of the team perform and what are those roles? Fourth, what should the co-author “marriage” look like? Multiple scenarios …

The Executive Right To Lease Mineral Real Property In Texas Before And After Lesley V. Veterans Land Board., Christopher S. Kulander

St. Mary's Law Journal

Abstract Forthcoming.

Deceiving Law Students: Employment Statistics And Tort Liability., Angie Roberts-Huckaby

St. Mary's Law Journal

Abstract Forthcoming.

Specialty Juvenile Courts In Texas: Using The Rehabilitative Juvenile Justice Approach To Reform Texas's Youngest Gang Members., Drew Darnell

St. Mary's Law Journal

Abstract Forthcoming.

New Oil And Old Laws: Problems In Allocation Of Production To Owners Of Non-Participating Royalty Interests In The Era Of Horizontal Drilling., Benjamin Holliday

St. Mary's Law Journal

Oil and gas exploration and production is not only a big business, it is also an expensive one. As with any business, when faced with competing alternatives, operators generally prefer to pursue exploration in areas with more stable and predictable legal environments. Efforts have previously been made to make Texas such an environment, but as technology advances, legal rules often become unclear in their application. The explosion in horizontal drilling activity is challenging the courts and the Texas Railroad Commission to apply and adapt traditional legal and regulatory concepts to horizontal wells. The growing dominance of horizontal well development is …

The Strange Case Of Lieutenant Waddell: How Overly Restrictive Rules Of Engagement Adversely Impact The American War Fighter And Undermine Military Victory., Jeffrey F. Addicott

St. Mary's Law Journal

A rules of engagement (“ROE”) Review Board should be created in order to provide an impartial review process for service members facing adverse administrative action for violations of ROE. Politicians defining the ROE, rather than military experts, create rules that are so restrictive and confusing that they ultimately run counter to the military objective of victory. A violation of a ROE can be a criminal offense under the Uniform Code of Military Justice, but violations are issued arbitrarily, and often the military does not charge the service member with a crime, instead using adverse administrative measures to impose punishment. While …

Plugging The School-To-Prison Pipeline By Improving Behavior And Protecting Core Judicial Functions: A Constitutional Crisis Looms., Patrick S. Metze

St. Mary's Law Journal

The consolidation of the Texas Youth Commission (TYC) and the Texas Juvenile Probation Commission (TJPC) into the Texas Juvenile Justice Department (TJJD) in 2011, produced a unified state juvenile justice agency to promote public safety first and to produce positive outcomes for youth, families, and communities second. As Professor Metze’s second paper discussing ways to effect a change in the School-to-Prison Pipeline, he first highlights the progress of TJJD’s use of Positive Behavioral Interventions and Supports (PBIS) in the Texas juvenile correctional context as continued evidence that such techniques, if effective in the correctional setting, will certainly work in the …

Texas Legislative Implications For Minors Accused Of Sexting., Mallory N. Myers

St. Mary's Law Journal

State legislation criminalizing sexting—the possession or electronic transmission of visual material capturing a minor engaged in sexual conduct—should not punish minors similarly to adults. The Adam Walsh Child Protection and Safety Act of 2006 (Walsh Act) in conjunction with the Sex Offender Registration & Notification Act (SORNA), require that any individual, including a minor, convicted of child pornography register as a sex offender. As a result, states with legislation that categorize sexting as child pornography, will require a minor with a sexting conviction to register as a sex offender. This disportionate punishment on the minor will make it difficult for …

Water Can Be For Drinking Again: Economic And Collaborative Solutions To A Texas Water Fight., Aaron Culp

St. Mary's Law Journal

Abstract Forthcoming.

In Denial: The Role Of Law In Preparing For Death, Barbara A. Noah

Faculty Scholarship

Only approximately 20% of Americans have engaged in any form of advance care planning and, even among older Americans, the process frequently is delayed until an acute illness provides sufficient pressure to act. End of life law, though flawed, offers some opportunity to express individual values and preferences via advance directives of various kinds in order to prepare for death before it is imminent. Yet many people avoid making these preparations because the thought of death is uncomfortable to confront. This Article considers the utility of existing law in preventing and resolving end of life disputes and avoiding over-utilization of …

Introduction, Peter J. Strauss

NYLS Law Review

No abstract provided.

An Insurance Structure To Encourage Investment In Preventative Health Care, Nicholas Georgakopoulos

University of Michigan Journal of Law Reform

The incentives for investments in Americans' health are poorly aligned. Health insurers are not sufficiently motivated to invest for the long term. The structure of health insurance does not compensate insurers for investments in lasting health, such as measures preventing chronic disease. If an American changes insurers, the new insurer reaps the benefits of the good health the prior insurer's investment produced. This Essay explores insurers' incentives to invest in health, illustrates how those incentives fail, explores possible improvements, and shows that subsequent insurers should have an obligation to compensate the prior insurer for the averted expenses of expected diseases …

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

Articles

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 …

A "Common" Proposal, Stacey A. Tovino

Faculty Articles

The Federal Policy for the Protection of Human Subjects (the "Common Rule") is codified in separate regulations by seventeen federal departments and agencies, including the Department of Health and Human Services (HHS). HHS’s version of the Common Rule currently contains a basic policy for the protection of all human subjects, codified at Subpart A of the Common Rule, as well as special provisions governing human subjects research involving three sets of vulnerable populations, including pregnant women, fetuses, and neonates (Subpart B); prisoners (Subpart C); and children (Subpart D). This Article proposes that HHS amend the Common Rule to add a …

Conflicts Of Interest In Medicine, Research, And Law: A Comparison, Stacey A. Tovino

Faculty Articles

Several of the remarks and articles presented in this symposium have addressed conflicts of interest arising during the provision of legal counsel to individuals who are elderly, including specific conflicts of interest implicated by estate planning, retirement planning, and long-term care planning. Topics examined thus far include conflicts of interest with respect to the application of rules of confidentiality within state rules of professional conduct to elderly clients with impaired decision-making capacity; conflicts of interest involving representative payees for Social Security benefits; conflicts of interest in distributions when parents enter into marriages that are unprotected by law; and conflicts of …

Gone Too Far: Federal Regulation Of Health Care Attorneys, Stacey A. Tovino

Faculty Articles

Outside health care counsel frequently obtain medical records, billing records, health insurance claims records, and other records containing individually identifiable health information in the course of representing health industry clients in medical malpractice, licensure, certification, accreditation, fraud and abuse, peer review, and other civil, criminal, and administrative health law matters. This Article is the first to argue that state rules of professional conduct, not federal health information confidentiality regulations, should govern outside health care counsel’s use and disclosure of confidential client information, and that outside counsel should be excepted from direct federal regulation under the HIPAA Privacy Rule.

Better Health, But Less Justice: Widening Health Disparities After National Federation Of Independent Business V. Sebelius, Emily W. Parento, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

At the time it was enacted in 2010, the Patient Protection and Affordable Care Act (ACA) was widely applauded by health activists, as it meant that the United States would at last join the overwhelming majority of industrialized countries in providing its population with guaranteed access to affordable health care. Roughly half of the increase in access to health insurance was to come from the expansion of Medicaid eligibility to all U.S. citizens and legal residents with income below 138% of the Federal Poverty Level. However, the Supreme Court’s 2012 ruling in National Federation of Independent Business v. Sebelius ( …

Towards A Framework Convention On Global Health: A Transformative Agenda For Global Health Justice, Lawrence O. Gostin, Eric A. Friedman

Georgetown Law Faculty Publications and Other Works

International law has responded weakly to the inequities in health care, public health, and the broader determinates of health that collectively cause the greatest loss of lives and human potential every year. Approximately one-third of global deaths can be attributed to enduring and unconscionable inequities. Despite significant progress in improving global health over the past several decades, these inequities persist. Current global governance for health is inadequate to the task of resolving these inequities, from lack of accountability and enforcement to inadequate funding and the absence of leadership required to respond to the threats to health that arise from other …

Sacrificial Lambs: Compensating First Subscribers To Fda-Approved Medications For Postmarketing Injuries Resulting From Unlabeled Adverse Events, Rodney K. Miller

Catholic University Law Review

No abstract provided.

A Time For Change: Why The Msm Lifetime Deferral Policy Should Be Amended, Vianca Diaz

University of Maryland Law Journal of Race, Religion, Gender and Class

"A Time for Change: Why the MSM Lifetime Deferral Policy Should be Amended," discusses the need to amend the men who have sex with men (MSM) Lifetime Deferral to blood donations enforced by the Food and Drug Administration. This comment reviews the current policy within the current legal and cultural landscape and argues for the immediate need for reform.

Acequias, Brigette Buynak, Jerold Widdison, Darcy S. Bushnell

Water Matters!

Acequias are community irrigation systems in the villages and pueblos of New Mexico. They have deep roots in two ancient traditions—Pueblo Indian and Spanish. The Pueblos collected and shared water for centuries before the arrival of Spanish colonists in 1598. The Spanish settlers brought technical knowledge and institutional frameworks for governing irrigation systems, which originated in the Moors’ seven-century occupation of Spain. Both traditions remain important to an understanding of New Mexico’s acequia heritage and the continuing relevance of these “water democracies.”Today, these traditions must meld with state law as the legislature has provided that acequias are “political subdivisions” or …

American Indian Water Rights, Michael Osborn, Darcy S. Bushnell

Water Matters!

Pueblos and tribal reservations are located within most of the larger stream systems in New Mexico. Each has claims to rights to use the water in its stream. In New Mexico, Indian rights are significant because of their early priority dates, because of the large amounts of water rights claimed, or both. In some instances, such claims have the potential to displace a significant number of junior water rights.

Common law theories or doctrines pertaining to Indians continue to be judicially refined and to evolve so that discussing the nature and extent of “Indian water rights” is a complex topic.

Groundwater, Darcy S. Bushnell, Diego Urbina

Water Matters!

Since the late nineteenth century, New Mexicans have been developing the state’s groundwater resources. From hand-dug wells to proposed wells that could penetrate to 12,000 feet, residents have sought sources to supplement and replace surface water. The state relies upon groundwater to supply almost 50 percent of its needs.

As the population grows and drought intensifies, groundwater sources are tapped with increasing urgency. Limited steps are being taken to preserve groundwater through conservation, groundwater recharge, and regulation.

State And Regional Water Planning, Brigette Buynak, Susan Kelly, Sarah Armstrong

Water Matters!

A statewide water planning effort was initiated by the New Mexico legislature in the 2003 session. The Interstate Stream Commission (ISC),in collaboration with the Office of the State Engineer (OSE) and the Water Trust Board, was tasked with preparing and implementing a comprehensive state water plan. Regional water planning had begun much earlier, prompted by a lawsuit that El Paso filed against New Mexico in 1983, El Paso v. Reynolds.

The State Water Plan Act of 2003 (Act) was intended to promote stewardship of the state’s water resources and to establish clear policies and strategies for management of the state’s …

Community Water Systems, Joanne Hilton, Susan Kelly, Sarah Armstrong

Water Matters!

Apart from the major cities along the Rio Grande corridor, much of New Mexico remains relatively rural. Recent studies estimate a 2013population of around 2,085,500 statewide. In the state fiscal year 2011,about 1,836,000 people, or 88 percent of New Mexico’s population obtain their water from community water systems. Approximately 284,000 people, or about14 percent of the population, receive their drinking water from community water systems serving fewer than 5,000 people. As of 2012, there are 1,148 public water systems that provide drinking water in New Mexico. Of these systems, 593are community water systems; of these, 546 serve fewer than 5,000 …

Deep Water Regulation, Paul Bossert, Kari Olson

Water Matters!

With most of the surface water in New Mexico fully appropriated and with groundwater sources being drawn down and becoming less reliable, the search for new sources of water is reaching further and further afield of traditional sources and methods. Water wells deeper than 2,000 feet have been rare due to the expense of deep drilling and the uncertainty of finding potable water. Yet the combined circumstances of advances in hydrology and the escalating demand for new water have driven the search for water deeper than was previously considered practical.