Health Law and Policy Commons^™

Further Standing Lessons, Heather Elliott

Indiana Law Journal

Professor Elliott wrote a piece for the Indiana Law Journal in 2012 (available here). In this article, she updates her analysis and explores the implications of both the health-care and marriage equality cases on the Court’s standing doctrine.

The Case For Mandatory Training On Screening For Domestic Violence In The Wake Of The Affordable Care Act, Nat Stern, Karen Oehme

Scholarly Publications

No abstract provided.

Sovereignty, Citizenship, And Public Health In The United States, Polly J. Price

Faculty Articles

Sovereign boundaries, state borders, and distinctions between citizens and non-citizens undermine public health in the United States in a number of ways. For historical reasons, we are prone to view immigration and public health as separate interests, but they are in fact convergent. Historically, federal authority over immigration alleviated costs otherwise borne by state and local governments. Today, however, states are primarily responsible for the prevention and control of communicable disease acquired outside U.S. borders. The federal and state governments confront a stark division of authority with respect to non-citizens: The federal government decides which non-citizens to admit into the …

Uncovering The Silent Victims Of The American Medical Liability System, Joanna Shepherd

Faculty Articles

A frequently overlooked problem with the current medical liability system is the vast number of medical errors that go uncompensated. Although studies indicate that 1% of hospital patients are victims of medical negligence, fewer than 2% of these injured patients file claims. In this Article, I explain that many victims of medical malpractice do not file claims because they are unable to find attorneys willing to take their cases.

I conducted the first national survey of attorneys to explore medical malpractice victims' access to the civil justice system. The results from the survey indicate that the economic reality of litigation …

Selective Contracting In Prescription Drugs: The Benefits Of Pharmacy Networks, Joanna Shepherd

Faculty Articles

Selective contracting in health care involves contractual arrangements among insurers and health care providers that give covered individuals a financial incentive to obtain health care from a limited panel of providers. Although selective contracting has been an important strategy of health insurance plans for decades, it has only recently expanded to prescription drug coverage. Drug plans now create pharmacy networks that channel customers to in-network pharmacies. Pharmacies compete to be part of the networks by offering discounts on the drugs they sell to covered customers and drug plans. Although networks can lower prescription drug costs for drug plans and consumers, …

Veterans Treatment Court: A Hand Up Rather Than Lock Up, Tabatha Renz

Richmond Public Interest Law Review

There has been a gradual national shift toward rehabilitation within the justice system. This has been especially important for veterans who make up only 8% of the total population, but account for 10% of those with criminal records. Recognizing that the traditional justice system is not equipped to handle cases of individuals whose underlying cause of offense is combat trauma, there has been a call to expand the Veterans Treatment Court ("VTC") program as an alternative for offenders who are veterans of the armed forces. This issue has been compounded by over a decade of war in Iraq and Afghanistan, …

An Analysis Of The Political And Legal Debates Concerning Medicaid Expansion In Virginia, Rick Mayes Ph.D, Benjamin Paul

Richmond Public Interest Law Review

The Supreme Court's historic June 2012 ruling regarding the Affordable Care Act (ACA) in National Federation of Independent Business v. Sebelius set the stage for a massive federalism battle over Medicaid expansion in the United States. The original language of the Act was intended to nationalize Medicaid by having every state expand their program's eligibility to all individuals up to 138% of the federal poverty level. This would have significantly reshaped Medicaid, a joint federal-state health insurance program, into a universal entitlement for all low-income citizens. Currently, Medicaid eligibility varies dramatically from state to state. The Court held that the …

Health Law As Social Justice, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

Health law is in the midst of a dramatic transformation. From a relatively narrow discipline focused on regulating relationships among individual patients, health care providers, and third-party payers, it is expanding into a far broader field with a burgeoning commitment to access to health care and assurance of healthy living conditions as matters of social justice. Through a series of incremental reform efforts stretching back decades before the Affordable Care Act and encompassing public health law as well as the law of health care financing and delivery, reducing health disparities has become a central focus of American health law and …

Rationalizing Home And Community-Based Services Under Medicaid, Laura Hermer

Faculty Scholarship

This article examines efforts states are making to expand access to community-based services for elderly and disabled Medicaid beneficiaries and suggests several options that might improve such access nationally. Like much of Medicaid, Medicaid long term services and supports (LTSS) have developed through a complex process of accretion. Policymakers appear only rarely to have considered an overarching view of such services and the needs of those who require them. Rationalizing Medicaid LTSS will accordingly require not only additions but also substantial pruning, and may even warrant a reconsideration of who should have ultimate authority to develop and direct such services. …

Context Matters: Disability, The End Of Life, And Why The Conversation Is Still So Difficult, Alicia Ouellette

NYLS Law Review

No abstract provided.

Should All Drugs Be Patentable?: A Comparative Perspective, Cynthia M. Ho

Faculty Publications & Other Works

Although there has been substantial discussion of the proper scope of patentable subject matter in recent years, drugs have been overlooked. This Article begins to address that gap with a comparative perspective. In particular, this Article considers what is permissible under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as well as how India and Canada have utilized TRIPS flexibilities in different ways to properly reward developers of valuable new drugs, while also considering the social harm of higher prices beyond an initial patent term on drugs.

This Article brings valuable insight into this area at a critical …

Drugged Out: How Cognitive Bias Hurts Drug Innovation, Cynthia M. Ho

Faculty Publications & Other Works

No abstract provided.

Sex, Science, And The Age Of Anxiety, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

This article examines the question of whether the HPV vaccine should be mandated (for girls and/or boys) in the context of declining rates of childhood immunization, and the potential threat to public health that this decline poses. The article addresses two interconnected legal issues: first, is mandating vaccines to prevent the spread of disease constitutional under substantive due process and equal protection principles, and second, should parents be permitted to “opt out” of mandatory vaccination on their children’s behalf, either for all vaccines or those which prevent particular diseases. The article addresses these issues in the context of America’s growing …

Beyond Title Vii: Rethinking Race, Ex-Offender Status, And Employment Discrimination In The Information Age, Kimani Paul-Emile

Faculty Scholarship

More than sixty-five million people in the United States—more than one in four adults—have had some involvement with the criminal justice system that will appear on a criminal history report. A rapidly expanding, for-profit industry has developed to collect these records and compile them into electronic databases, offering employers an inexpensive and readily accessible means of screening prospective employees. Nine out of ten employers now inquire into the criminal history of job candidates, systematically denying individuals with a criminal record any opportunity to gain work experience or build their job qualifications. This is so despite the fact that many individuals …

Asbestos Lawsuits In Russia: Bring One If You Can, Anna Linetskaya

Cardozo Journal of International and Comparative Law

The note examines the challenges faced by asbestos victims in Russia in seeking legal redress, highlighting the barriers posed by the country's legal system, lack of regulatory oversight, and the dominance of the asbestos industry. It argues that despite the existence of tort law as a potential avenue for relief, numerous structural and procedural obstacles deter victims from pursuing claims, underscoring the need for legal reforms to improve access to justice.

Concussions And Sports: Introduction, David Orentlicher

Scholarly Works

No abstract provided.

A Restatement Of Health Care Law, David Orentlicher

Scholarly Works

No abstract provided.

Giving Thanks: The Ethics Of Grateful Patient Fundraising, Stacey A. Tovino

Scholarly Works

Grateful patient fundraising, defined as the solicitation of philanthropic donations by health care providers from current and former patients, raises a number of legal and ethical issues. Elsewhere, I detailed the confidentiality issues raised by the use and disclosure of patient identifiable information by hospital development officers, major gifts officers, institutionally-related foundations, and commercial fundraisers, and proposed corrections to federal health information confidentiality regulations to better balance the competing aims of health care philanthropy and health information confidentiality. In this Article, I analyze several outstanding issues raised by physician involvement in grateful patient fundraising. That is, physicians who solicit philanthropic …

Silence Is Golden . . . Except In Health Care Philanthropy, Stacey A. Tovino

Scholarly Works

No abstract provided.

Aging Populations And Physician Aid In Dying: The Evolution Of State Government Policy, David Orentlicher

Scholarly Works

Professor David Orentlicher explores the evolution of physician assisted suicide from illegal taboo to the passage of Death with Dignity legislation and caselaw.

Employer-Based Health Care Insurance: Not So Exceptional After All, David Orentlicher

Scholarly Works

No abstract provided.

The Changing Legal Climate For Physician Aid In Dying, David Orentlicher

Scholarly Works

No abstract provided.

Health Care Reform And Efforts To Encourage Healthy Behavior By Individuals, David Orentlicher

Scholarly Works

No abstract provided.

The Future Of The Affordable Care Act: Protecting Economic Health More Than Physical Health?, David Orentlicher

Scholarly Works

No abstract provided.

Lost In The Shuffle: How Health And Disability Laws Hurt Disordered Gamblers, Stacey A. Tovino

Scholarly Works

Gambling disorder is not a legally sympathetic health condition. Health insurance policies and plans have long excluded treatment for gambling disorder from health insurance coverage. Individuals with gambling disorder who seek disability income insurance benefits from public and private disability income insurers also tend not to be successful in their claims. In addition, federal and state antidiscrimination laws currently exclude individuals with gambling disorder from disability discrimination protections. This Article is the first law review article to challenge the legal treatment of individuals with gambling disorder by showing how health insurance and antidiscrimination laws hurt problem gamblers. Using neuroscience, economics, …

I Need A Doctor: A Critique Of Medicare Financing Of Graduate Medical Education, Stacey A. Tovino

Scholarly Works

In its broadest sense, this Article examines the complex relationship between population booms, doctor shortages, and United States government financing of graduate medical education (GME). More specifically, this Article argues that current rules governing the calculation of Medicare payments to teaching hospitals for the costs of GME are based on cost, population, and other data that are no longer relevant. As applied, these formulas discriminate in favor of the nation's oldest teaching hospitals, located in New England and the Middle Atlantic, and against current and future teaching hospitals located in growing population centers, especially regions in the South and West. …

Abortion Distortions, Caroline Mala Corbin

Articles

No abstract provided.

Literacy, Poverty, And Brain Development: Toward A New, Place-Based Educational Intervention, Michael R. Hilton

Richmond Public Interest Law Review

This paper provides an overview of emerging research focused on how living in an area of concentrated poverty can impact brain development and explores some possible applications of this research to education policy. One of the key findings is that state and federal policy-makers may need to adopt programs that integrate educational policy with housing and planning policy in order to protect and fulfill each child's educational rights. In order to impress upon readers the scale of the nation's current educational failures and the need for a significant change in policy, this paper first addresses adult illiteracy in the United …

Lost In The Shuffle: How Health And Disability Laws Hurt Disordered Gamblers, Stacey A. Tovino

Faculty Articles

Gambling disorder is not a legally sympathetic health condition. Health insurance policies and plans have long excluded treatment for gambling disorder from health insurance coverage. Individuals with gambling disorder who seek disability income insurance benefits from public and private disability income insurers also tend not to be successful in their claims. In addition federal and state antidiscrimination laws currently exclude individuals with gambling disorder from disability discrimination protections. This Article is the first law review article to challenge the legal treatment of individuals with gambling disorder by showing how health insurance and antidiscrimination laws hurt problem gamblers. Using neuroscience, economics, …

Silence Is Golden ... Except In Health Care Philanthropy, Stacey A. Tovino

Faculty Articles

No abstract provided.