Health Law and Policy Commons^™

Big Data: Destroyer Of Informed Consent, A. Michael Froomkin

Articles

The 'Revised Common Rule' took effect on January 21, 2019, marking the first change since 2005 to the federal regulation that governs human subjects research conducted with federal support or in federally supported institutions. The Common Rule had required informed consent before researchers could collect and use identifiable personal health information. While informed consent is far from perfect, it is and was the gold standard for data collection and use policies; the standard in the old Common Rule served an important function as the exemplar for data collection in other contexts. Unfortunately, true informed consent seems incompatible with modern analytics …

Decriminalization Of Prostitution: The Soros Effect, Jody Raphael

Dignity: A Journal of Analysis of Exploitation and Violence

This article explores the activities of George Soros and his charitable organization, Open Society Foundations (OSF), in advocating for the full decriminalization of the sex trade industry. Research finds that OSF spends only a small amount of money on grass roots “sex worker” groups around the world advocating for full decriminalization, but the foundation awards larger amounts of funds to large human rights groups whose reports and policies have a wider reach. OSF’s rationale for full decriminalization fails to consider violence and coercion in the sex trade industry, misreads research, and does not include research from venues where full decriminalization …

Masthead, Volume 28 (2018)

Health Matrix: The Journal of Law-Medicine

No abstract provided.

Health Care Held Ransom: Modifications To Data Breach Security & The Future Of Health Care Privacy Protection, Ryan M. Krisby

Health Matrix: The Journal of Law-Medicine

The article highlights the need of modification in the U.S. Health Insurance Portability and Accountability Act of 1996 (HIPAA), as the federal data breach security regulation fails to adequately protect patient data. Topics discussed include data breach security under HIPAA; need of modifications that address these inadequacies concerning ransomware; and actions by the U.S. Federal Trade Commission to provide an impetus for healthcare organizations to carry out data security modifications.

Needles, Haystacks, And Next-Generation Genetic Sequencing, Teneille R. Brown

Health Matrix: The Journal of Law-Medicine

Genetic testing is becoming more frequent and the results more complex. Not infrequently, genetic testing conducted for one purpose reveals information about other features of the genome that may be of clinical significance. These unintended findings have been referred to as "incidental" or "secondary" findings. In 2013, the American College of Medical Genetics ("ACMG") recommended that clinical laboratories inform people if their genetic analyses indicate that they have certain secondary mutations. These mutations were selected because they probably cause a serious disease, which is treatable, and may go undetected. The ACMG's recommendations galvanized critical responses by the genetics and ethics …

The Moderating Relationship Of Comorbid Psychopathology And Treatment Outcome For Young Adult Offenders In Drug Court, Patrick Mcgonigal, Kathleen A. Moore, Matthew Scott Young

Mental Health Law & Policy Faculty Publications

Title: The moderating relationship of comorbid psychopathology and treatment outcome for young adult offenders in drug court.

Background: The drug court system is an alternative to incarceration that provides offenders with non-violent, substance motivated crimes with an opportunity to dismiss their charges and undergo a rigorous substance abuse treatment program. It is unknown whether drug court is effective for young adult clients and the role of co-occurring psychopathology within this context.

Methods: This study evaluated the overall effectiveness of a drug court system applied to young adult offenders ages 18-26, and additionally explored the moderating relationship of psychiatric symptoms on …

Wecan! A 12-Month Evaluation Of A Drug Court Treatment Program Serving Females Addicted To Prescription Drugs, Kathleen A. Moore, M. Scott Young

Mental Health Law & Policy Faculty Publications

Prescription drug abuse represents a national public health concern. This study reports on 12-month outcomes of a drug court treatment program for 102 female offenders addicted to prescription drugs. The program utilized two evidence-based treatment models (i.e., Motivational Enhancement Therapy/Cognitive Behavioral Therapy-12 and Seeking Safety). In addition, participants were required to attend monthly judicial reviews, weekly AA/NA groups, and two random drug screens per week. Participants were interviewed at baseline and 12-month follow-up. Analyses examined self-reported substance use, traumatic experiences, criminal justice involvement, readiness to change, and therapeutic alliance. Participants reported significant decreases in substance use, increased readiness to change, …

The Duration Of Untreated Psychosis: A Phenomenological Study, Sarah R. Kamens, Larry Davidson, Emily Hyun, Nev Jones, Jill G. Morawski, Matthew M. Kurtz, Jessica Pollard, Gerrit Ian Van Schalkwyk, Vinrod Srihari

Mental Health Law & Policy Faculty Publications

Mounting evidence has indicated that early intervention leads to improved clinical and functional outcomes for young persons experiencing recent onset psychosis. As part of a large early detection campaign, the present study aimed to investigate subjective experiences during the duration of untreated psychosis (DUP), or time between psychosis onset and treatment contact. Participants were 10 young adults participating in early intervention services for psychosis. After DUP was estimated during standardized baseline assessment, participants engaged in qualitative interviews focused on their life experiences prior to treatment and leading up to the present. Mixed methods data analyses compared standardized DUP estimates with …

New Frontiers In Medical Privacy: Protecting The Biometric Data Of Patients In The Healthcare Industry, Jordan T. Shewmaker

Kentucky Law Journal

No abstract provided.

Table Of Contents

Marquette Benefits and Social Welfare Law Review

No abstract provided.

Table Of Contents

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Masthead

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Regulatory Implications Of The Comprehensive Care For Joint Replacement Demonstration Project, Thomas W. Brewer

Saint Louis University Journal of Health Law & Policy

An often overlooked provision in the Patient Protection and Affordable Care Act is the authorization of demonstration projects which incentivize providers to develop, implement, and test novel, cost-cutting approaches to care delivery. One such project, the Comprehensive Care for Joint Replacement demonstration project, encourages providers across the continuum of care to collaborate on strategies that improve the quality of and lower the cost of complete joint replacements. The project allows providers to share the benefits of cost savings, and liabilities for cost overruns, across the surgeons performing procedures, acute care facilities, and post-acute care facilities. Arrangements of this type, outside …

Putting The Brakes On Consumer Driven Medicaid: The Failures And Harms Of Healthy Indiana Plan (Hip) 2.0, Sidney D. Watson

Saint Louis University Journal of Health Law & Policy

In January 2015, the U.S. Department of Health and Human Services (HHS) granted Indiana a Section 1115 Demonstration Waiver to experiment with consumer driven Medicaid. The Healthy Indiana Plan (HIP) 2.0 combines a $2,500 high deductible with a Personal Responsibility and Wellness (POWER) Account, premiums, and copays. Described as “the most significant departure from traditional Medicaid ever approved,” Indiana claims that the POWER Account, the signature feature of HIP 2.0, is “similar to a health savings account (HSA)” and encourages members to be more cost-conscious consumers, helps familiarize members with how commercial health insurance works, and encourages continuous Medicaid enrollment. …

The Body Politic: Federalism As Feminism In Health Reform, Elizabeth Y. Mccuskey

Saint Louis University Journal of Health Law & Policy

This essay illuminates how modern health law has been mainstreaming feminism under the auspices of health equity and social determinants research. Feminism shares with public health and health policy both the empirical impulse to identify inequality and the normative value of pursing equity in treatment. Using the Affordable Care Act’s federal health insurance reforms as a case study of health equity in action, the essay exposes the feminist undercurrents of health insurance reform and the impulse toward mutuality in a body politic. The essay concludes by revisiting—from a feminist perspective—scholars’ arguments that equity in health insurance is essential for human …

Finding An Unlikely Combatant In The War Against Ransomware: Opportunities For Providers To Utilize Off-Site Data Backup Within The Hipaa Omnibus And Hitech Amendments, Jordan Butler

Saint Louis University Journal of Health Law & Policy

Each day the health care sector is subjected to an onslaught of thousands of ransomware virus attacks which attempt to capture a provider’s IT operations until a ransom is paid to the hacker. Apart from monetary, functional, and civil liability considerations, compromised health systems that contain electronic patient health information could expose a provider to legal liability under multiple HIPAA laws. This article will explore how recent amendments made to HIPAA, particularly under the Omnibus and HITECH Acts, incentivize providers to obtain legal, functional, and policy-based benefits by utilizing off-site data backup business associates as part of their cybersecurity defense …

Overlapping And Concurrent Surgeries: An Analysis Of Informed Consent When There Is Incomplete Risk Information, Caitlan E. Grombka-Murphy

Saint Louis University Journal of Health Law & Policy

The practice of overlapping and concurrent surgeries—where a single surgeon runs two or more operations at once—is not new. However, it was not until 2015, through the Boston Globe’s investigation, that the general public learned the details of such practices. Lack of transparency surrounding these practices regrettably has created a culture of distrust within the surgeon-patient relationship. The core concern of overlapping and concurrent surgeries is the potential for patient risk. Scientific research on how much additional risk overlapping or concurrent surgeries place on the patient is still in its early stages. This article explores current scientific research, noting …

Table Of Contents

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Masthead

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Foreword, Robert Gatter

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Independence Is The New Health, Laura D. Hermer

Saint Louis University Journal of Health Law & Policy

Medicaid plays key roles in supporting our nation’s health. Under the Affordable Care Act, Medicaid took an even more central position in public health endeavors by extending coverage in all interested states to millions of adults who typically fell through the health care cracks. Nevertheless, the Trump administration is now undoing these gains by actively encouraging states to curtail access to Medicaid in key respects while using the rhetoric of health.

This article examines Trump administration efforts in two contexts: (1) state § 1115 waiver applications seeking to better align their Medicaid programs with cash welfare and food stamp programs, …

Health Justice In The Age Of Alternative Facts And Tax Cuts: Value-Based Care, Medicaid Reform, And The Social Determinants Of Health, Elizabeth Tobin-Tyler

Saint Louis University Journal of Health Law & Policy

Some provisions of the Patient Protection and Affordable Care Act of 2010 (ACA) as well as regulatory policies under the Obama administration reflected the overwhelming evidence that to reduce health care costs, and to improve quality of care and population health, the social determinants of health (SDOH) must be addressed. These policies included funding for partnerships between public health agencies, community organizations, and health care institutions, promotion of value-based payment models that incentivize integrated health and social care delivery, and support for Medicaid program innovations that directly address social needs as part of health care. The Trump administration, through a …

What Hope For Health In All Policies’ Addition And Multiplication Of Equity In An Age Of Subtraction And Division At The Federal Level?: The Memphis Experience, Amy T. Campbell

Saint Louis University Journal of Health Law & Policy

Increasingly, people recognize that social factors, such as poverty, the living environment, and educational status, substantially affect health outcomes. A “health in all policies approach” (HiAP) seeks structural reform of policymaking to require purposeful consideration, across an interconnected range of public sector actors, of the health equity and justice policy-level considerations of these factors. With the election of Donald J. Trump as 45th President in the United States, however, the U.S. entered a world where the math of the day is division and subtraction, rather than addition or multiplication. And yet, hope in HiAP remains through examples of innovative approaches …

Political Rhetoric And Minority Health: Introducing The Rhetoric-Policy-Health Paradigm, Kimberly Cogdell Grainger

Saint Louis University Journal of Health Law & Policy

Rhetoric is a persuasive device that has been studied for centuries by philosophers, thinkers, and teachers. In the political sphere of the Trump era, the bombastic, social media driven dissemination of rhetoric creates the perfect space to increase its effect. Today, there are clear examples of how rhetoric influences policy. This Article explores the link between divisive political rhetoric and policies that negatively affect minority health in the U.S. The rhetoric-policy-health (RPH) paradigm illustrates the connection between rhetoric and health. Existing public health policy research related to Health in All Policies and the social determinants of health combined with rhetorical …

The Faltering Promise Of Fda Tobacco Regulation, Micah L. Berman

Saint Louis University Journal of Health Law & Policy

Congress passed the Tobacco Control Act (TCA) in 2009, giving the FDA the authority to regulate tobacco products for the first time. Ten years later, the promise that the TCA’s enactment would be a transformative moment for public health has not materialized. To the contrary, the FDA’s most notable regulatory effort—requiring graphic warnings on cigarette packages and advertisements—has been struck down in court, and the FDA is now scrambling to address a youth e-cigarette epidemic that caught it off guard. This Article provides a brief review of TCA implementation during the Obama administration, and it reviews the Trump administration’s “comprehensive …

“I Walk In, Sign. I Don’T Have To Go Through Congress.” President Trump’S Use Of Executive Orders To Unravel The Patient Protection And Affordable Care Act, Elizabeth Van Nostrand, Tina Batra Hershey

Saint Louis University Journal of Health Law & Policy

Executive orders, used by presidents to advance their administrations’ agendas, have changed history. These powerful written instruments were used to confine Japanese Americans during World War II, desegregate public schools, and create NASA. On the day of his inauguration, President Donald J. Trump issued his first Executive Order which directed secretaries of executive branch agencies to begin dismantling President Barack Obama’s flagship initiative—the Patient Protection and Affordable Care Act (ACA). This action, along with subsequent executive orders, precipitated a flurry of regulatory change and judicial challenges. Whether President Trump will ultimately be successful in crippling the ACA is still to …

Three Lost Ebola Facts And Public Health Legal Preparedness, Robert Gatter

Saint Louis University Journal of Health Law & Policy

Three key facts about Ebola Transmission should drive policy designed to control the risk of transmission during a crisis.

• Ebola—like HIV—is not easily transmissible human-to-human.
• Ebola has “dry” and “wet” symptoms, and only the wet symptoms threaten public health.
• A fever is Ebola’s canary in a coal mine; it provides timely warning of a coming threat.

Yet, during the U.S. Ebola scare in 2014, these three facts were lost. Unnecessary quarantine, stigma, and burden on those exposed to Ebola resulted, including especially for those who volunteered to fight the disease at its source abroad. Tragically, the law permitted these injustices …

Stretching Armstrong: How The Eighth Circuit Incorrectly Applied Supreme Court Precedent In Does V. Gillespie, Lauren E. Pair

Saint Louis University Journal of Health Law & Policy

Medicaid serves as an important source of health insurance for millions of Americans. One of the Act’s core tenants is the patient’s freedom to choose from any qualified and willing provider. This “freedom of choice” provision was eventually codified, and subsequent protections were put in place to protect a patient’s choice regarding family planning services. However, as states attempt to limit access to family planning services by severing their Medicaid contracts with Planned Parenthood, patients must rely on § 1983 to pursue relief in federal courts. Section 1983 provides a right of action for the violation of any federal right …

Let Your Conscience Be Your Guide: Comparing And Contrasting Washington's Death With Dignity Act And Pharmacy Regulations After The Ninth Circuit's Decision In Stormans, Inc. V. Wiesman, Jared B. Magnuson

Georgia Law Review

In 2015, the Ninth Circuit held in Stormans, Inc. v.
Wiesmani that the Christian owners of a pharmacy in
Washington who objected to carrying and distributing
emergency contraception because it conflicted with their
religious beliefs must distribute those drugs under the
state's pharmacy regulations. Washington's
Pharmacist Responsibility Rule and Delivery Rule
require pharmacy owners to carry and distribute
emergency contraception but do not allow any
exemptions for owners or pharmacists who object to
doing so for conscience reasons. At the same time,
Washington's Death with Dignity Act makes physician-
assisted suicide legal in the state and contains a broad
exemption …

Increasing Vaccination Rates Without Eliminating Nonmedical Exemptions, Hillel Y. Levin, Timothy D. Lytton

Popular Media

This essay on shifting states' incentives to reduce nonmedical exemptions while respecting the choice not to vaccinate, is based on a forthcoming article, A Model Law for Nonmedical Immunization Exemptions Using the Least Restrictive Means, coauthored by Daniel A. Salmon, Stacie Kershner, Timothy D. Lytton, Hillel Y. Levin, Claire Hannan, and Saad B. Omer.