Health Law and Policy Commons^™

The Exclusionary Rule And The Dueling Legacies Of Utah V. Streiff: Which Will Be Suppressed., Marcos Herrera

St. Mary's Law Journal

Abstract Forthcoming.

Force Majeure: How Lessees Can Save Their Leases While The War On Fracking Rages On., Allison R. Ebanks

St. Mary's Law Journal

Abstract Forthcoming.

Entrepreneurial Administration, Philip J. Weiser

Publications

A core failing of today’s administrative state and modern administrative law scholarship is the lack of imagination as to how agencies should operate. On the conventional telling, public agencies follow specific grants of regulatory authority, use the traditional tools of notice-and-comment rulemaking and adjudication, and are checked by judicial review. In reality, however, effective administration depends on entrepreneurial leadership that spearheads policy experimentation and trial-and-error problem-solving, including the development of regulatory programs that use non-traditional tools.

Entrepreneurial administration takes place both at public agencies and private entities, each of which can address regulatory challenges and earn regulatory authority as a …

Macra And Stark: Strange Bedfellows At The Heart Of Health Care Reform, Rebecca Olavarria

Journal Publications

The enactment of the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) was well-received by all as it repealed Medicare’s Sustainable Growth Rate and, in its place, mandates the implementation of a new system for health care delivery and payment. Under MACRA, health care providers are expected to work together and coordinate their efforts with the goal of improving patient outcomes and controlling costs. For the first time ever, federal reimbursements will be tied to quality of care and improved cost efficiencies. However, as a new law, MACRA’s potential for success needs to be measured in terms of its …

What Is That Hamburger Doing To My Child's Grades? Childhood Obesity And Its Effects On A Student's Academic Performance, Cheryl Page

Journal Publications

This paper addresses childhood obesity and its correlating effects on an obese child's academic development. The terms and studies outlined in this paper specifically address the issue of obesity in children. It is important to state this distinction because obesity among children is defined and measured differently than it is among adults. Before discussing the differences in the academic development of non-obese children and obese children, I will begin by defining the following terms: "Body Mass Index (BMI)," "BMI-for-age," "Overweight," "Percentile Rates," and "Childhood Obesity."

Dr. Hoffman Among Nation's Most-Cited Health Law Scholars, Case Western Reserve University School Of Law, Law-Medicine Center

Case Law-Med

• Welcome from our Law-Medicine Center leaders
• Cleveland: A top city for health care
• Professor Sharona Hoffman among most cited health law scholars in the nation
• Law-Medicine conference explores legal challenges in Precision Medicine
• Renowned healthcare journalist, Elisabeth Rosenthal, gives talk on how healthcare became a big business
• The Law-Medicine Center’s fall events take on Medicaid, healthcare privacy and reproductive rights
• Reproductive Rights Lab: Student teams conduct legal research on abortion clinics and women in prison…
• 3L wins national health law writing competition
• CJ Sandley: Advocate for at-risk prisoners
• Seth Jacobs: Revolutionizing healthcare from within 
• Q&A: Defending pharmaceuticals and medical facilities …

Introduction: Four Views On Healthism

Marquette Benefits and Social Welfare Law Review

None

On Health, Law, And Religion, Stacey A. Tovino

Faculty Articles

The Supreme Court recently decided a number of cases involving health, law, and religion, including Whole Woman's Health v. Hellerstedt, Zubik v. Burwell, and Burwell v. Hobby Lobby Stores, Inc. These cases were important for understanding constitutional undue burden limitations and the boundaries of religious exercise during the Obama Administration. Unfortunately, the Supreme Court's recent opinions addressing health, law, and religion have little value for many health law professors and most practicing health care attorneys. These individuals, tasked with teaching and applying the thousands of federal and state statutes, regulations, and government guidance documents that address a wide …

Teaching The Hipaa Privacy Rule: Illustrative Comparisons, Stacey A. Tovino

Faculty Articles

Twenty years ago, President Clinton signed the Health Insurance Portability and Accountability Act of 1996 (HIPAA) into law. Over the past two decades, the federal Department of Health and Human Services (HHS) has published several sets of rules implementing the Administrative Simplification provisions within HIPAA as well as the Health Information Technology for Economic and Clinical (HITECH) Act within the American Recovery and Reinvestment Act (ARRA). These rules include, but certainly are not limited to, a final rule published on January 25, 2013, governing the use and disclosure of protected health information by covered entities and their business associates (the …

How Understanding And Application Of Drug-Related Legal Instruments Affects Harm Reduction Interventions In Cambodia: A Qualitative Study, Sovannary Tuot, Chanrith Ngin, Khuondyla Pal, Sochenda Sou, Ghazal Sawez, Phylicia Morgan, Siyan Yi

Background: Harm reduction interventions in Cambodia face numerous obstacles because of conflicting understanding and interests and inconsistencies in the implementation by law enforcement officials. This study aims to examine how understanding and application of Drug Control Law (DCL) and Village/Commune Safety Policy (VCSP) affects harm reduction interventions in Cambodia from the standpoints of law enforcement officials, people who inject drugs and people who use drugs (PWID/PWUD), as well as other key stakeholders.

Methods: This qualitative study was conducted in the capital city of Phnom Penh in 2015. We held five focus group discussions (FGDs) with groups of PWID/PWUD, …

The American Health Care Act Would Toss The States A Hot Potato, David Gamage, Darien Shanske

Articles by Maurer Faculty

This essay explains how the American Health Care Act (AHCA) – the House Republicans’ proposed replacement for Obamacare – would toss a hot potato to state governments. Were the AHCA to be enacted into law, state governments would need to act promptly if they are to save individual insurance markets within their states. This essay explains measures that state governments might take to respond to this threat.

How States Can Respond To The Ahca: Using The Mccarran-Ferguson Act, David Gamage, Darien Shanske

Articles by Maurer Faculty

No abstract provided.

Genome Editing And The Jurisprudence Of Scientific Empiricism, Paul Enriquez

Vanderbilt Journal of Entertainment & Technology Law

Humankind has reached, in tow by the hand of a scientific breakthrough called CRISPR, the Rubicon of precise genetic manipulation first envisioned over fifty years ago. Despite CRISPR's renown in science and its power to transform the world, it remains virtually unaddressed in legal scholarship. In the absence of on-point law, the scientific community has attempted to reach some consensus to preempt antagonistic regulation and prescribe subjective standards of use under the guise of a priori scientific empiricism. Significant and complex legal issues concerning this technology are emerging, and the void in legal scholarship is no longer tolerable.

This Article …

Privatizing Bars On Abortion: Eviscerating Constitutional Rights Through Tort Remedies, Maya Manian

Scholarly Articles in Law Reviews & Journals

State governments have devised a new means to evade the Constitution. Their new means is to enact tort statutes that, in effect, ban constitutionally protected conduct. In particular, some states have made the provision of an abortion a tort for which there can be no defense and no cap on the amount of liability. These states have made performing an abortion essentially illegal. Yet, because tort statutes are enforced through private litigation, rather than public prosecution, a number of courts have held that they lack jurisdiction to review these laws. Federal courts have concluded that standing doctrine and state sovereign …

Utilizing Alternative Dispute Resolution To Foster Comprehensive Traumatic Brain Injury Research, Michael Meyers

Cardozo Journal of Conflict Resolution

ADR, and more specifically mediation, could increase funding towards TBI prevention and recovery research. Section II explores the TBI Reauthorization Act in an effort to highlight its many successes and some of its shortcomings. Following the assessment of the national legislation, it is appropriate to examine efforts being made at the state-level. Next, because professional and collegiate sports leagues control a great deal of revenue, it is important to assess the initiatives set forth through their official league policies and rules, public relations efforts, and scientific contributions. This calls for an extensive examination of the NFL, NHL, NCAA, and FIFA's …

Personalized Medicine, Mayo, And The Uncertain Future Of Integrated Health Care, Peter S. Selness

Minnesota Journal of Law, Science & Technology

No abstract provided.

Tradition And Culture In Africa: Practices That Facilitate Trafficking Of Women And Children, Norah Hashim Msuya

Dignity: A Journal of Analysis of Exploitation and Violence

Many states in Africa have adopted legislative, administrative and institutional measures to combat trafficking in human beings. These measures include, among other things, the formulation and implementation of both national and regional action plans by African states to provide for comprehensive and coordinated interventions. Many African countries have also enacted an anti-trafficking legislation at the country level. Despite these measures, African women and children have been trafficked annually worldwide for purposes of forced labor, sexual exploitation, and domestic servitude. Additionally, women and children are trafficked within their countries from rural to urban areas. Misconception and abuse of African tradition and …

Certificate Of Need In The Post-Affordable Care Act Era, Emily Whelan Parento

McGeorge School of Law Scholarly Articles

Certificate of need (“CON”) programs were conceived approximately fifty years ago as supply constraint mechanisms for healthcare services, in an environment that is essentially unrecognizable today. Every aspect of the healthcare landscape has changed dramatically, particularly in the years since the enactment of the Affordable Care Act. The historical rationales in support of CON programs have been vigorously questioned by scholars across disciplines, roundly criticized by the federal government, and largely disproven by research. Yet the status quo persists with thirty-five states retaining CON laws, due in large part to a combination of entrenched interests and political inertia that prevents …

Medical Futility And Religious Free Exercise, Teneille R. Brown

Utah Law Faculty Scholarship

A tragic scenario has become all too common in hospitals across the United States. Dying patients pray for medical miracles when their physicians think that continuing treatment would render no meaningful benefit. This situation is unfortunately referred to as “medical futility.” In these cases, physicians, who are less likely than their patients to rely on God as a means of coping with major illness, are at an impasse. Their patients request everything be done so that they can have more time for God to intervene, but in the physician’s professional experience, everything will probably do nothing. What is the physician …

Frontiers In Precision Medicine Ii: Cancer, Big Data And The Public, Emily Coonrod, Jorge L. Contreras, Willard Dere, Jeffrey Botkin, Leslie Francis, Jim Tabery

Utah Law Faculty Scholarship

Precision medicine is being developed within a complex landscape of public policy, science, economics, law, and regulation. In these and other policy areas, the goal of developing individually-tailored therapies poses novel challenges for health care research, delivery and policy. In this symposium, a range of experts in genetics, medicine, bioinformatics, intellectual property, health economics and bioethics identified and discussed many of the pressing questions raised by the development and practice of precision medicine. These and other issues will need to be taken into account as precision medicine moves ahead and becomes the standard of medical practice and care in the …

Is Surrogacy Ethically Problematic?, Leslie P. Francis

Utah Law Faculty Scholarship

This chapter takes up less well-trodden questions about whether a surrogacy arrangement in which one person carries a pregnancy for another is ethically problematic in itself—and if so, why. Pregnancy and delivery are quintessential bodily labor. One set of arguments tests whether carrying a pregnancy is the type of bodily labor one person ethically may perform for another, whether or not for pay. These arguments contend that surrogacy cannot be a permissible service, no matter how well intended or structured. Another set of questions probes the value and identity of the child, asking whether surrogacy is inevitably akin to baby …

Fracking Health Care: How To Safely De-Medicalize America And Recover Trapped Value For Its People, William M. Sage

Faculty Scholarship

The wealth trapped within American health care is simultaneously a tragedy and a miracle. It is a tragedy because stagnating wages, widening disparities in income, ballooning deficits, and stunted investments in education and social services make such medical profligacy shameful. It is a miracle because it still exists, whereas other U.S. economic resources of similar magnitude have already been dissipated by global market forces without addressing any of the aforementioned failings – indeed, sometimes having contributed to them. It therefore can be released and used.

It is time to “frack the health care system” and innovate the de-medicalization of America. …

Lessons From Ferguson And Beyond: Bias, Health, And Justice, Sidney D. Watson

Minnesota Journal of Law, Science & Technology

No abstract provided.

A Small Price To Pay: Incentivizing Cadaveric Organ Donation With Posthumous Payments, Stephanie Zwerner

Minnesota Journal of Law, Science & Technology

No abstract provided.

Prejudicial Interpretation Of Expert Reliability On The “Cutting Edge” Enables The Orthopaedic Implant Industry’S Bodily Eminent Domain Claim, Frank Griffin M.D.

Minnesota Journal of Law, Science & Technology

No abstract provided.

Regulating Human Germline Modification In Light Of Crispr, Sarah Ashley Barnett

University of Richmond Law Review

No abstract provided.

Don’T Pull The Plug On Bioethics Mediation: The Use Of Mediation In Health Care Settings And End Of Life Situations, Amy Moorkamp

Journal of Dispute Resolution

A hefty decision, such as the life or death of a loved one, requires more than a few minutes of deliberation and a handful of outside consultations. Delicate, emotional, and potentially contentious medical decisions compel a structured, compassionate approach to produce quality and well-informed results. Due to the magnitude of the decision being made, as well as the abundance of other considerations, (emotional, religious, historic, financial, etc.) the case for a creative, problem-solving process of dispute resolution, such as mediation, is ripe.

This Comment will explore the use of mediation in bioethical disputes. In Part II, the Comment will give …

United States V. Mcintosh: Ninth Circuit Limits Federal Prosecutors From Spending To Enforce Marijuana Laws In Medicinal States., Daniel Haley

St. Mary's Law Journal

Abstract Forthcoming.

Covenants Running With The Land., Michael P. Pearson

St. Mary's Law Journal

The analysis of real covenants in wellhead contracts (e.g., gas purchasing, gathering, processing, etc.) by Texas courts has not been consistent. As a result, some bankruptcy courts are holding that a debtor in bankruptcy is not liable for a prior contractual obligation, unless the covenant is held to be a real covenant running with the land. For instance, the holding in In re Sabine Oil & Gas Corp. (Sabine I) contradicts the holdings in Westland Oil Development Corp. v. Gulf Oil Corp. and in Inwood North Homeowners' Association, Inc. v. Harris. The Sabine I court held that because the Acreage …

Patient Outcomes And Managed Care: What Was The Impact Of The State Regulatory Backlash?, Tina C. Highfill

Theses and Dissertations

Hundreds of state regulations were passed during the “managed care backlash” of the late 1990s and early 2000s. Many of these anti-managed care regulations eased or eliminated constraints on patient utilization of health care services imposed by managed care organizations. Other regulations gave managed care providers more flexibility in the way they practiced care or helped patients appeal denials of claims. Despite the effort undertaken to pass these regulations, limited research exists on whether the regulations achieved their goal. To fill this gap, this study takes advantage of the variety of regulations enacted during the managed care backlash of the …