Health Law and Policy Commons^™

The Fda And The Rise Of The Empowered Patient, Lewis Grossman

Contributions to Books

No abstract provided.

Panel 4: Translational Expectations And Issues: Making It Work In Practice, Stacey A. Tovino

Other Faculty Publications

No abstract provided.

Unwrapped: How The Los Angeles County Safer Sex In The Adult Film Industry Act's Condom Mandate Hurts Performers & Violates The First Amendment, Jason Shachner

Health Matrix: The Journal of Law-Medicine

No abstract provided.

The Increasing Weight Of Regulation: Countries Combat The Global Obesity Epidemic, Emily Whelan Parento, Allyn L. Taylor, Laura A. Schmidt

McGeorge School of Law Scholarly Articles

Obesity is a global epidemic, exacting an enormous human and economic toll. In the absence of a comprehensive global governance strategy, states have increasingly employed a wide array of legal strategies targeting the drivers of obesity. This Article identifies recent global trends in obesity-related legislation and makes the normative case for an updated global governance strategy. National governments have responded to the epidemic both by strengthening traditional interventions and by developing novel legislative strategies. This response consists of nine important trends: (1) strengthened and tailored tax measures; (2) broadened use of counter-advertising and health campaigns; (3) expanded food labeling; (4) …

Expectant Fathers, Abortion, And Embryos, Dara Purvis

Faculty Scholarship

One thread of abortion criticism, arguing that gender equality requires that men be allowed to terminate legal parental status and obligations, has reinforced the stereotype of men as uninterested in fatherhood. As courts facing disputes over stored pre-embryos weigh the equities of allowing implantation of the pre-embryos, this same gender stereotype has been increasingly incorporated into a legal balancing test, leading to troubling implications for ART and family law.

What Patients With Disability Teach Us About The Everyday Ethics Of Healthcare, Elizabeth Pendo

Articles

In Healers: Extraordinary Clinicians at Work, by David Schenck and Dr. Larry Churchill, and in What Patients Teach: The Everyday Ethics of Health Care, their follow-up with Joseph Fanning, the authors look at the everyday experience of health care and the relationships that shape it. They call attention to the ethical dimensions of the clinical encounter and the hope for, and desirability of, a genuine human engagement between the clinician and the patient. In their view, healers are clinicians who cultivate a therapeutic relationship with their patients. They identify a set of skills that accomplish this, including welcoming …

From Bibles To Biomarkers: The Future Of The Dsm And Forensic Psychiatric Diagnosis, Teneille R. Brown

Utah Law Faculty Scholarship

Given its importance to the law, it is regrettable that judges and lawyers do not fully understand how the DSM is constructed, and the bedrock of values on which it rests. As evidence of this, lawyers and judges often refer to the DSM as the “psychiatric bible.” This language is both fascinating and perplexing. This Article will attempt to correct the notion that the DSM is a legal “psychiatric bible” by explaining how it is created and used by the medical field. It will also provide a few reasons why the law may have come to view it as a …

Risk Management And Conflicts Of Interest, Leslie P. Francis

Utah Law Faculty Scholarship

Risk management aims to reduce the costs of adverse events. In entities such as hospitals, risk managers do this in two ways: reducing the likelihood or seriousness of adverse events and reducing the costs of these events when they do happen. Activities aimed at the latter present direct conflicts of interest between protecting the institution and respecting the interests of the clients served by the institution—so-called institutional conflicts of interest. Activities aimed at the former would appear to benefit all parties--those at risk of accidents (because the risk is reduced) and the institution (because reducing risks also reduces the costs …

Denying Death, Teneille R. Brown

Utah Law Faculty Scholarship

Terminal cancer patients are being kept in the dark about the purpose of their care. Several studies show that these patients undergo expensive and painful interventions because they are holding out hope for a cure, even when their physicians know that a cure is very unlikely. The current Medicare reimbursement system encourages this false hope by incentivizing physicians to medicate and operate on patients, rather than to talk about whether or why to do these things. Our culture also encourages this false hope by treating cancer as a war that must be won. As a result, patients are admitted to …

Vets Just Want Fair Benefits, Patricia E. Roberts

Faculty Articles

No abstract provided.

Legislating Morality Progressively - The Contraceptive Coverage Mandate, Religious Freedom, And Public Health Policy And Ethics, Michael J. Deboer

Journal of Law and Health

This Article studies the contraceptive coverage mandate from three different perspectives. First, it provides a historical treatment of the regulatory rules adopted by agencies in the Obama Administration – specifically, the Departments of the Treasury, Labor, and Health and Human Services, which this Article collectively refers to as “the Administration” or “the Departments” – that imposed the mandate, focusing specifically on the rulemaking processes used to develop and promulgate the rules. In performing this historical study, the Article traces the development of the mandate from its root in the ACA to full implementation in legislative (substantive) rules finalized by the …

Reproductive Justice, Public Policy, And Abortion On The Basis Of Fetal Impairment: Lessons From International Human Rights Law And The Potential Impact Of The Convention On The Rights Of Persons With Disabilities, Carole J. Petersen

Journal of Law and Health

This article argues that we should consider not only American constitutional law but also comparative law and emerging international human rights norms, in order to navigate the difficult issue of abortion on the basis of fetal impairment. The United States is a State Party to the International Covenant on Civil and Political Rights (ICCPR)13 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). It is also a signatory (but not a full State Party) to several other relevant treaties, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the …

Striking The Soda Ban: The Judicial Paralysis On The Department Of Health, Alana Sivin

Journal of Law and Health

Media coverage surrounding the New York City Department of Health’s recent portion-cap on sugary beverages sold in food service establishments tends to focus on public opinions regarding the role of government. Within this dialogue, there are two camps. On one hand lies the opposition; these individuals criticize the Department of Health as a “nanny state” involving itself with individual consumption choices. On the other side lay the supporters who recognize the gravity of the obesity epidemic and applaud government efforts to ameliorate its effects.

There's No Place Like Home: How Ppaca Falls Short In Expanding Home Care Services To The Elderly, Nick Vento

Journal of Law and Health

On March 23, 2010, President Barack Obama signed into law the Patient Protection and Affordable Care Act (PPACA). In an effort to rebalance states’ spending on long-term services and supports (LTSS) towards home care, PPACA created four new options under Medicaid with which states could provide home care services to their citizens. While PPACA’s creation of these four optional Medicaid HCBS programs allows states more flexibility and the capability to provide enhanced home care services to its citizens, it falls short of completely addressing the existing institutional bias in Medicaid by failing to create a mandatory Medicaid state service plan …

Draft Provincial/Territorial Legislation To Implement A Regulatory Framework For Medically-Assisted Dying Consistent With Carter V. Canada (Attorney General) 2015 Scc 5 And The Final Report Of The Provincial-Territorial Expert Advisory Group On Physician-Assisted Dying, Jocelyn Downie

Reports & Public Policy Documents

On February 6, 2015, the Supreme Court of Canada unanimously declared that the Criminal Code prohibitions on physician-assisted dying (both assisted suicide and voluntary euthanasia) violate the Canadian Charter of Rights and Freedoms. They immediately suspended the declaration for 12 months thus allowing the government time to craft new legislation. This paper is a contribution to the project of meeting that deadline -- it presents draft provincial/territorial legislation. This draft legislation is based on: 1) a thorough review of existing legislation in all permissive regimes throughout the world (reviewed through a "lessons learned" lens); 2) the requirements for constitutional validity …

Hiv Infrastructure Study Jackson, Mississippi, Susan S. Reif, Elena Wilson, Carolyn Mcallaster, Miriam Berger

Faculty Scholarship

No abstract provided.

Denaturalizing Transparency In Drug Regulation, Matthew Herder

Articles, Book Chapters, & Popular Press

In the arena of pharmaceutical drug regulation, transparency is the favoured focus of many current policy initiatives. Transparency is predominantly understood in terms of information disclosure. Requirements to register clinical trials, publish summary results, share clinical trial data, and disclose physician-industry relationships as well as rationales behind regulatory decision making are each predicated upon this idea that imparting information will both inform and deter unwanted behaviours. In this paper, I argue that understanding transparency qua disclosure has clear limitations and suggest transparency can and should serve an additional function - namely, of enabling standard setting through a more participatory, public …

Does The Dsm-5 Threaten Autism Service Access?, Rebecca Johnson

Utah Law Review

The present paper addressed the question: how will the DSM-5 revisions impact access to autism services? While media commentators posited a straightforward link between DSM-5 changes and service access, we should consider the different strength of couplings between a DSM diagnosis and entitlement access by investigating the factors that result in a diagnoses translation into service access. The Article began by outlining the pre DSM-5 policy background for autism entitlements. This background helps contextualize the policy environment into which the DSM-5 changes entered. Rather than examining autism medical and educational services in isolation, we should conceive of these services as …

Will Uncooperative Federalism Survive Nfib?, Abigail Moncrieff, Jonathan Dinerstein

Faculty Scholarship

In October Term 2012, the Supreme Court decided two cases that are fundamentally at odds: NFIB v. Sebelius and Douglas v. Independent Living Center of Southern California. In NFIB, the Court held that the federal government, at least under some circumstances, may not use the threat of reduced funding in cooperative federalism programs to require states to comply with federal statutory requirements. In Douglas, however, the Court indicated that private litigants should sue federal agencies under the Administrative Procedure Act if those agencies refuse to enforce federal statutory requirements against the states. The problem is that the withdrawal of funding …

Trafficked? Aids, Criminal Law And The Politics Of Measurement, Aziza Ahmed

Faculty Scholarship

Since early in the HIV epidemic, epidemiologists identified individuals who transact sex as a high-risk group for contracting HIV. Where the issue of transacting sex has been framed as sex work, harm-reduction advocates and scholars call for decriminalization as a primary legal solution to address HIV. Where the issue is defined as trafficking, advocates known as abolitionists argue instead for the criminalization of the purchase of sex.

Global health governance institutions are porous to these competing ideas and ideologies. This article first historicizes the contestation between harm-reduction and abolition in global governance on health. The paper then turns to a …

The Impact Of Law On The Right To Water And Adding Normative Change To The Global Agenda, Michael Ulrich

Faculty Scholarship

A resolution was passed at the United Nations Water Conference in 1977 to achieve universal access to sufficient water by 1990. This bar was lowered significantly as part of the Millennium Development Goals (MDGs). However, as the MDGs come to an end this year, even this reduced benchmark will not be reached. Water is inescapably intertwined with every other MDG, as well as the ability to exercise any human right. Consequently, the failure to achieve this goal implores an exploration of its causes. As the global community embarks on setting a new post-MDG agenda, one currently overlooked aspect is the …

Challenges For People With Disabilities Within The Health Care Safety Net, Michael Ulrich

Faculty Scholarship

Medicare and Medicaid were passed to serve as safety nets for the country's most vulnerable populations, yet, the disabled community continues to be one whose health care needs are not being met. This group is all too frequently left to suffer health disparities due to cultural incompetency, stigma and misunderstanding, and an inability to create policy changes that covers the population as a whole and their acute and long-term needs.

The Universality Of Medicaid At Fifty, Nicole Huberfeld

Faculty Scholarship

This essay, written for the Yale Law School symposium on The Law of Medicare and Medicaid at 50, explores how the law of Medicaid after the ACA creates a meaningful principle of universalism by shifting from fragmentation and exclusivity to universality and inclusivity. The universality principle provides a new trajectory for all of American health care, one that is not based on individual qualities that are unrelated to medical care but rather grounded in non-judgmental principles of unification and equalization (if not outright solidarity). This essay examines the ACA's legislative reformation, which led to universality, and its quantifiable effects. The …

“Play Or Pay”: Interpreting The Employer Mandate Of The Patient Protection And Affordable Care Act As It Relates To Tribal Employers, Rachel Sibila

American Indian Law Review

No abstract provided.

Kickbacks And Contradictions: The Anti-Kickback Statute And Electronic Health Records, Daniel E. Rheiner

Vanderbilt Journal of Entertainment & Technology Law

The Obama Administration has made the universal adoption of electronic health records a major policy priority, passing the Health Information Technology for Economic and Clinical Health (HITECH) Act, which creates incentives for physicians and hospitals to computerize their medical records. This effort has been largely successful, as evidenced by the significant increase in medical providers who have adopted electronic health records. However, for the President to achieve his goal of computerizing all medical records in the United States, he will need to ensure that other federal laws do not conflict with the incentive structure created by the HITECH Act. The …

State’S Highest Bench Approves Reduced Charges For Hiv Transmission, Arthur S. Leonard

Other Publications

No abstract provided.

The Four Stages Of Youth Sports Tbi Policymaking: Engagement, Enactment, Research, And Reform, Hosea H. Harvey, Dionne L. Koller, Kerri M. Lowrey

All Faculty Scholarship

This article advances, for the first time, a framework for situating public health law interventions as occurring in a predictable four-stage process. In this article, written in connection with our panel at the Public Health Law Research Conference (2014), we briefly apply this four-stage framework to youth sports TBI laws, and conclude that public health lawmaking in this area is consistent with prior high-visibility public health law interventions.

Agreements To Alter The Limitation Period Imposed By U.C.C. Section 2-725: Some Overlooked Complications., Gregory Crespi

St. Mary's Law Journal

Abstract Forthcoming.

Cueing Democracy: Replacing The Texas Election Code's Title Prohibition., Christopher M. Childree

St. Mary's Law Journal

Abstract Forthcoming.

Resolving Drug Manufacturer Liability For Generic Drug Warning Label Defects., Frank Scaglione

St. Mary's Law Journal

Although generic drugs are beneficial to consumers because they are offered as a more cost effective alternative to brand-name prescriptions, brand-name manufacturers are vulnerable to potential lawsuits because of generic drugs. Under the Drug Price Competition and Patent Term Restoration Act of 1984 (Hatch-Waxman Act), generic manufacturers are able to quickly enter the market following the termination of a brand-name drug’s patent. As a result of the Hatch-Waxman Act, 75% of all drugs on the market are generic. The Hatch-Waxman Act, however, also requires generic drug manufacturers to duplicate the brand-name drug’s warning label. As an unintended consequence, injuries have …