Health Law and Policy Commons^™

The Costs Of Having (Too) Many Choices: Reshaping The Doctrine Of Informed Consent, Maytal Gilboa, Omer Y. Pelled

Brooklyn Law Review

This article suggests a reshaping of the doctrine of informed consent to accommodate the potential costs of choices vis-à-vis patients’ well-being. Applying insights from psychology and behavioral economics, it makes four main claims. First, the current doctrine imposes a broad duty of disclosure on physicians toward their patients, based on the premise that patients want and need to know all the alternative treatments for their ailment. We argue that this premise is misguided. The process of choice making is not cost free. Since patients incur costs when they must choose a treatment from too many alternatives, the current duty should …

Law In The Time Of Zika: Disability Rights And Reproductive Justice Collide, Seema Mohapatra

Brooklyn Law Review

This article focuses on finding common ground between those seeking to ensure abortion access and those advocating for disability rights, using the reaction to the Zika virus as a case study. Although the symptoms of Zika in women were often mild, the correlation of Zika infection in pregnant women to microcephaly affecting their newborns led to travel advisories and alarm bells for pregnant women in areas where the Zika virus was prevalent. Although the rise of microcephaly and its connection to Zika was a cause for concern and investigation, the condition itself is not a death sentence, as headlines suggested. …

Equitable Health Savings Accounts, Samuel Estreicher, Clinton G. Wallace

Faculty Publications

This Article offers the first comprehensive legal-policy critique of existing Health Savings Accounts (HSAs), arguing that the current approach is redistributively regressive, thus exacerbating inequality, and also fails to accomplish stated healthcare goals. We propose an alternative—Equitable Health Savings Accounts—which uses cash grants as a tool to address both of these problems. Equitable HSAs are a market-based social program that calibrates size and delivery of a government subsidy to help the least well off and to facilitate participation in healthcare markets. Equitable HSAs can serve as a model for using cash grants to bridge the gap between Republican social policy …

The Patent Ability Of Genetic Therapies: Car-T And Medical Treatment Exclusions Around The World, Luis Gil Abinader, Jorge L. Contreras

American University International Law Review

No abstract provided.

Masthead, Volume 29 (2019)

Health Matrix: The Journal of Law-Medicine

No abstract provided.

Liability (And) Rules For Health Information, Jorge L. Contreras, Francisca Nordfalk

Health Matrix: The Journal of Law-Medicine

The recent trend toward propertization of health data could pose significant challenges to biomedical research and public health. Property rule systems can result in sizable up-front costs in the acquisition of consent from individual data subjects, as well as the ongoing risk that data subjects will retract consent or object to unanticipated data uses, thus compromising existing data resources and analyses. Instead, we propose that research using individual health data should be subject to a regulatory regime, enforceable by government/public repositories, while at the same time permitting private enforcement actions to address particularized individual injury. Thus, while the physical collection …

How Failure To Protect Laws Punish The Vulnerable, Amanda Mahoney

Health Matrix: The Journal of Law-Medicine

No abstract provided.

50 Shades Of Data Sharing: How A Uniform Fifty-State Prescription Drug Monitoring Program Can Restore Discretion To Opioid Prescribers And Autonomy To Chronic Pain Patients, Allyson Cady

Health Matrix: The Journal of Law-Medicine

No abstract provided.

Everyone Bleeds Guilty: Blood Draws For Law Enforcement Purposes In Light Of The Hipaa Privacy Rule And Recent Supreme Court Decisions, 52 Uic J. Marshall L. Rev. 489 (2019), Bianca Valdez

UIC Law Review

Intoxicated driving claims more than 10,000 lives per year. In efforts to combat this devastating statistic, states have enacted laws that permit law enforcement officers to order warrantless blood draws from suspects of driving under the influence. In doing so, law enforcement officers seek the assistance of medical personnel to carry out the phlebotomy process. While medical personnel are obliged to assist law enforcement with their investigations, they also have an ethical duty to their patient and a legal duty to comply with the Health Insurance Portability and Accountability Act of 1996. What are the legal implications when the suspect …

Conflicts Of Interest And Academic Research, Jorge L. Contreras, Mark Rinehart

Utah Law Faculty Scholarship

This chapter discusses financial conflicts of interest in academic research. After exploring the definition of conflicts of interest, the chapter focuses on the manner in which conflicts are addressed by policies promulgated by the U.S. federal government, research institutions and scholarly journals. It concludes with suggestions for further research and policy analysis.

Constitutional Cohesion And The Right To Public Health, James G. Hodge, Daniel G. Aaron, Haley R. Auger, Ashley Cheff, Joseph Daval

Utah Law Faculty Scholarship

Despite years of significant legal improvements stemming from a renaissance in public health law, Americans still face major challenges and barriers in assuring their communal health. Reversals of legal reforms coupled with maligned policies and chronic underfunding contribute to diminished public health outcomes. Underlying preventable morbidity and mortality nationally are realities of our existing constitutional infrastructure. In essence, there is no general obligation of government to protect or promote the public’s health. Under principles of “constitutional cohesion,” structural facets and rights-based principles interwoven within the Constitution protect individuals and groups from governmental vices (i.e., oppression, overreaching, tyranny, and malfeasance). Structural …

Constitutional Cohesion And The Right To Public Health, James G. Hodge Jr., Daniel Aaron, Haley R. Augur, Ashley Cheff, Joseph Daval, Drew Hensley

University of Michigan Journal of Law Reform

Despite years of significant legal improvements stemming from a renaissance in public health law, Americans still face major challenges and barriers in assuring their communal health. Reversals of legal reforms coupled with maligned policies and chronic underfunding contribute to diminished public health outcomes. Underlying preventable morbidity and mortality nationally are realities of our existing constitutional infrastructure. In essence, there is no general obligation of government to protect or promote the public’s health. Under principles of “constitutional cohesion,” structural facets and rights-based principles interwoven within the Constitution protect individuals and groups from governmental vices (i.e., oppression, overreaching, tyranny, and malfeasance). Structural …

About A Revolution: Toward Integrated Treatment In Drug And Mental Health Courts, Sara Gordon

Scholarly Works

This Article examines specialty courts, including drug, alcohol, and mental health courts, which proponents claim created a revolution in criminal justice. Defendants whose underlying crime is the result of a substance use disorder or a mental health disorder can choose to be diverted into a specialty court, where they receive treatment instead of punishment. Many of these individuals, however, do not just suffer from a substance use disorder or a mental health disorder; instead, many have a “co-occurring disorder.” Approximately 8.9 million American adults have co-occurring mental health and substance use disorders, and almost half of individuals who meet diagnostic …

Florida Law, Mobile Research Applications, And The Right To Privacy, Stacey A. Tovino

Scholarly Works

This Article investigates whether state law contains comprehensive privacy, security, and breach notification standards that could apply to independent scientists who conduct mobile app mediated health research. Focusing only on Florida law, this Article assesses potentially relevant and applicable sources of privacy, security, and breach notification standards for health data of the type obtained during mobile app mediated health research studies. This Article concludes that, with one exception, Florida law tends to fall into one of two categories: (1) the law contains at least one data privacy, security, or breach notification standard, but the standard is limited in application to …

A Timely Right To Privacy, Stacey A. Tovino

Scholarly Works

On December 28, 2017, the federal Department of Health and Human Services ("HHS") settled its fiftieth case involving potential violations of the privacy, security, and breach notification rules ("Rules") that implement the Health Insurance Portability and Accountability Act ("HIPAA") and the Health Information Technology for Economic and Clinical Health Act ("HITECH"). This Article catalogues and examines currently available enforcement actions involving the HIPAA and HITECH Rules, including the cases in which HHS has entered into a settlement agreement with a HIPAA covered entity or business associate, the cases in which HHS has imposed a civil money penalty on a HPAA …

Substance Use Disorder Insurance Benefits: A Survey Of State Benchmark Plans, Stacey A. Tovino

Scholarly Works

Professor Tovino presents the results of a survey of state benchmark health plan coverage of substance use disorder treatments and services, including treatments and services for opioid use disorder.

Mine Reclamation's Reliance On King Coal: Meeting Legacy Environmental Obligations With A Declining Industry, Claire Jarrell

University of Colorado Law Review

Coal mines throughout Appalachia have left the land scarred and the water damaged. Although mine reclamation programs are the only major system of recourse for addressing environmental degradation caused by mining, the downturn of the coal market has put reclamation programs in a precarious position for achieving that end. Funds for coal mine reclamation are derived from the current coal industry's profits. As coal profits continue to atrophy, so too does the pot of money designated for reclamation efforts. These dwindling financial resources are particularly problematic because there is still significant need for reclamation funding throughout Appalachia.

This Comment explores …

Medical Records And Privacy Rights: The Unintended Consequences Of Aggregated Data In Electronic Health Records, Andrea C. Maciejewski

University of Colorado Law Review

In an era of rapid-pace technological innovation and political focus on healthcare, the federal government is pushing for nationwide interoperability of electronic health records. While there are many benefits from such a program, the lack of federal or state privacy regulations for patients' personal data opens up the possibility of widespread dissemination of private and sensitive information. This inattention to privacy will cause major problems if exploited.

Currently, there are no federal or Colorado laws that protect against potential privacy violations and provide recourse for a patient if a medical professional decides to insert nonmedical information, such as information about …

Redefining What It Means To "Furnish Items In Excess Of A Patient's Needs": A Federal Tool To Guide Physician Prescribing Behavior And Combat The Opioid Crisis, Carson Schneider

University of Colorado Law Review

The United States is in the midst of one of the deadliest drug epidemics in its history: the opioid crisis. The relevant players- prominent physicians, federal investigators, and multiple presidents, to name a few-have demonstrated a desire to combat the crisis, but they have not always focused on addressing one of the crisis's most prominent causes. This Comment starts by identifying a major cause of the opioid crisis-physician-prescribed opioid painkillers-and then advocates for federal regulation and monitoring through the Department of Health and Human Services (HHS) as a remedy.

Under the current statutory regime, HHS has the power to control …

Risks And Remedies For Artificial Intelligence In Healthcare, W. Nicholson Price Ii

Other Publications

Artificial intelligence (AI) is rapidly entering health care and serving major roles, from automating drudgery and routine tasks in medical practice to managing patients and medical resources. As developers create AI systems to take on these tasks, several risks and challenges emerge, including the risk of injuries to patients from AI system errors, the risk to patient privacy of data acquisition and AI inference, and more. Potential solutions are complex but involve investment in infrastructure for high-quality, representative data; collaborative oversight by both the Food and Drug Administration and other health-care actors; and changes to medical education that will prepare …

Nobody Knew How Complicated: Constraining The President's Power To Re(Shape) Health Reform, Sallie Thieme Sanford

Articles

Beginning on inauguration day, President Trump has attempted an executive repeal of the Affordable Care Act. In doing so, he has tested the limits of presidential power. He has challenged the force of institutional and non-institutional constraints. And, ironically, he has helped boost public support for the ACA’s central features. The first two sections of this article respectively consider the use of the President’s tools to advance and to subvert health reform.

The final two sections consider the forces constraining the administration’s attempted executive repeal. I argue that the most important institutional constraint, thus far, is found in multifaceted actions …

Health Reform And Higher Ed: Campuses As Harbingers Of Medicaid Universality And Medicare Commonality, Sallie Thieme Sanford

Articles

Between 2010 and 2016, the percentage of uninsured higher education students dropped by more than half. All the Affordable Care Act’s key access provisions contributed, but the most important factor appears to be the Medicaid expansion. This article is the first to highlight this phenomenon and ground it in data. It explores the reasons for this dramatic expansion of coverage, links it to theoretical frameworks, and considers its implications for the future of health reform.

Drawing on Medicaid universality scholarship, I discuss potential consequences of including the educationally privileged in this historically stigmatized program. Extending this scholarship, I argue that …

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.

Could We Pass The Ada Today?: Disability Rights In An Age Of Partisan Polarization, Michael Waterstone

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Could We Pass The Ada Today? Disability Rights In An Age Of Partisan Polarization, Tony Coelho

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Would The Ada Pass Today?: Disability Rights In An Age Of Partisan Polarization, Laura Rothstein

Saint Louis University Journal of Health Law & Policy

The Americans with Disabilities Act of 1990 (ADA) was the most significant civil rights legislation enacted since the Civil Rights Act of 1964. It provided comprehensive protection against discrimination for individuals with disabilities in employment, public accommodations, and public services. It built on § 504 of the Rehabilitation Act that provided these protections only to programs receiving federal financial assistance. It afforded broad access to those individuals who had benefitted from the 1975 Individuals with Disabilities Education Act. This complex and far-reaching legislation was made possible by a confluence of timing and the right people at the right place at …

Threats To Medicaid And Health Equity Intersection, Mary Crossley

Saint Louis University Journal of Health Law & Policy

The year 2017 proved politically tumultuous in the U.S. on many fronts, but perhaps none more so than health care. For enrollees in the Medicaid program, it was a “year of living precariously.” Long-promised Republican efforts to repeal the Affordable Care Act also took aim at Medicaid, with proposals to fundamentally restructure the program and drastically cut its federal funding. These proposals provoked pushback from multiple fronts, including formal opposition from groups representing people with disabilities and people of color and individual protesters. Opposition by these groups should not have surprised the proponents of “reforming” Medicaid. Both people of color …

The Costs Of Uncertainty: The Doj’S Stalled Progress On Accessible Medical Equipment Under The Americans With Disabilities Act, Elizabeth Pendo

Saint Louis University Journal of Health Law & Policy

No abstract provided.

A State’S Effort To Enhance Health Care: Empowering Pharmacists With Prescribing Authority, Madhav Y. Bhatt

Saint Louis University Journal of Health Law & Policy

High rates of unintended pregnancies and costs associated with them have been a concern for the health care system in the U.S. The State of Oregon took a unique approach to reduce unintended pregnancy rates within its borders. Oregon enacted a statute that authorized pharmacists to prescribe hormonal contraceptives, which expanded the scope of practice of pharmacists. This Article explores whether states, instead of the Food and Drug Administration (FDA), should regulate the scope of practice of health care professionals. This Article further explores the impact of Oregon’s law on access to hormonal contraceptives, safety of women’s health, and costs …