Health Law and Policy Commons^™

Independent Contractor Misclassification Is Making Everything Worse: The Experience Of Home Care Workers In Maryland, David J. Rodwin

Saint Louis University Journal of Health Law & Policy

The COVID-19 pandemic has exposed and magnified existing problems in the American health care system. One of these problems—existing at the intersections of race, age, disability, class, power, poverty, and health—is the widespread misclassification of home care workers as independent contractors Home care workers, who are predominantly women and people of color, provide personal assistance services and health care supports to older adults and people with disabilities in home- and community-based settings, usually for very low wages. Misclassification cuts them out of the social safety net in case of job loss or injury, imposes a greater tax burden than that …

Accommodating Pregnancy Five Years After Young V. Ups: Where We Are & Where We Should Go, Nicole Buonocore Porter

Saint Louis University Journal of Health Law & Policy

This Article will explore how pregnant employees fare when they are denied accommodations in the workplace that would have allowed them to work safely through their pregnancies. The two most commonly used legal avenues for pregnant plaintiffs are the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA). Successful cases under the ADA were rare until Congress expanded the ADA’s definition of disability in 2008. PDA claims became easier after the Supreme Court’s 2015 decision in Young v. United Parcel Service, Inc. This Article will analyze both the body of PDA cases decided since Young, and all of …

Supporting Employee Lactation: Do U.S. Workplace Lactation Benefit Mandates Align With Evidence-Based Practice?, Candice L. Thomas, Lauren D. Murphy, Drake Van Egdom, Haley R. Cobb

Saint Louis University Journal of Health Law & Policy

Within the United States, there are governmental benefits and policies in place to support breastfeeding mothers as they return to work. However, the effectiveness and inclusiveness of these policies is not always clear. Because of this, breastfeeding at work, in general, and governmental workplace mandates, specifically, often receive negative press and social media attention as women struggle to reconcile their workplace and lactation demands. To provide evidence-based recommendations for how to best support breastfeeding employees, we use an organizational science perspective to review the existing research for evidence on the (1) effectiveness of the existing legal benefits and supports within …

Costs Vs. Compensation: Legal And Policy Recommendations For Addressing Workplace Sexual Harassment, Heather Mclaughlin, Christine Thomas

Saint Louis University Journal of Health Law & Policy

The recent #MeToo Movement has unequivocally shown that workplace sexual harassment is a widespread issue. Since December 2017, workers around the globe have shared personal stories of sexual harassment, as well as the tolls it caused on their health and careers. In this Article, we review extant interdisciplinary research on the negative consequences of sexual harassment for workers’ physical, psychological, and behavioral health; their career and earnings trajectories; and for broader organizational culture. Understanding these costs sheds light on how best to reduce and respond to workplace sexual harassment. We offer three suggestions for law and policy: (1) expand legal …

Expanding Patient Access To Breast Cancer Genetic Testing Through Incentive Regimes, Megan K. Hart

Saint Louis University Journal of Health Law & Policy

It is estimated that 268,600 women were diagnosed with breast cancer in 2019 alone, and as many as 26,860 of these women could have developed breast cancer due to a genetic disposition.[1] While over one million women have undergone genetic testing to identify variations in the BRCA1 and BRCA2 genes, the test results are often ambiguous due to identified variations for which the breast cancer development risk is unknown.[2] A new technology known as CRISPR has the potential to change this state of uncertainty due to its capability to identify thousands of BRCA1 and 2 gene variations and …

The Legal And Ethical Considerations Of The Posthumous Retrieval Of Gametes, Patrick Monahan

Saint Louis University Journal of Health Law & Policy

In the United States, federal and state laws on the issue of posthumous retrieval of gametes are almost non-existent. As the field of medicine continues to grow and more posthumous gamete retrieval procedures become viable, state courts and hospitals are left on their own when patients and family members ask their doctors to perform such procedures. As such, there exists wide variability from hospital to hospital and state to state for a deeply personal and time-sensitive procedure. By reviewing state court cases and hospital policies, this article demonstrates the variability between practices and illustrates key questions that arise when requests …

Is Medicare For All The Answer? Assessing The Health Reform Gestalt As The Aca Turns 10, Nicole Huberfeld

Faculty Scholarship

As presidential candidates debate health reform, the expression “Medicare for All” (“M4A”) is on repeat, yet few appear to understand precisely what Medicare is or what M4A would mean. Even more striking is that Americans are vigorously debating health reform when the ACA – President Obama’s signature legislation and a health reform effort on a scale not seen in decades – turns 10 on March 23.

The ACA pioneered universal coverage, but it also ratcheted up health care complexity by building new scaffolding around an old foundation. This fragmented landscape has been exacerbated by a crazy quilt of implementation crafted …

Federalism Complicates The Response To The Covid-19 Health And Economic Crisis: What Can Be Done?, Nicole Huberfeld, Sarah H. Gordon, David K. Jones

Faculty Scholarship

Federalism has complicated the US response to the novel coronavirus. States’ actions to address the pandemic have varied widely, and federal and state officials have provided conflicting messages. This fragmented approach has cost time and lives. Federalism will shape the long-term health and economic impacts of COVID-19, including plans for the future, for at least two reasons: First, federalism exacerbates inequities, as some states have a history of underinvesting in social programs, especially in certain communities. Second, many of the states with the deepest needs are poorly equipped to respond to emergencies due to low taxes and distrust of government, …

Taking Care Of The Caretakers: An Argument For A Cross-Sectoral Approach To Mental Health Resources For Farmers, Ranchers, And Agricultural Workers, Mary Dallas

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

From Public Health To Public Wealth: The Case For Economic Justice, Barbara L. Atwell

Kentucky Law Journal

No abstract provided.

Early Access To Unapproved Medicines In The United States And France, Erika Lietzan

Faculty Publications

In 2018, President Trump signed a federal "right to try" law, claiming that it would give desperately ill patients earlier access to unapproved medicines, by allowing the patient, doctor, and drug company to arrange for access without federal oversight. Critics of the law argued that it would not meaningfully increase access to experimental medicines, because federal oversight was not the obstacle in the first place. And they were correct. U.S. law already permitted companies to provide terminally ill patients with early access to unapproved medicines. The problem was instead that companies did not take advantage of this option. This Article …

Crispr And The Future Of Fertility Innovation, June R. Carbone

SMU Science and Technology Law Review

No abstract provided.

Consumer Protections In The Context Of Holistic Healthcare, Rachel Pauerstein

SMU Science and Technology Law Review

No abstract provided.

In Re Zhu: Implied Consent To Posthumous Sperm Retrieval, Mary Kathryn Sapp

SMU Science and Technology Law Review

No abstract provided.

Resolving The Circuit Split: Pleading Healthcare Fraud With Particularity, Tricia L. Forte

Roger Williams University Law Review

No abstract provided.

Let She Who Has The Womb Speak: Regulating The Use Of Human Oocyte Cryopreservation To The Detriment Of Older Women, Browne C. Lewis

Law Faculty Articles and Essays

This article is divided into three parts. Part I examines the arguments in favor of banning human oocyte cryopreservation. Part II explores the reasons some opponents of human oocyte cryopreservation might give to support restrictions on the use of frozen oocytes. Part III analyzes the possible ethical and legal challenges that may arise in the event that the government seeks to ban the use of frozen oocytes or restrict the use of frozen oocytes based solely on the age of the potential mother.

Covid-19 And Individuals With Developmental Disabilities: Tragic Realities And Cautious Hope, Samuel J. Levine

Scholarly Works

The COVID-19 pandemic has cast the United States, along with the rest of the world, into a time of crisis and uncertainty unlike any other in recent memory. Months into the pandemic, there is scant agreement among scientists, government officials, and large segments of the public, both domestic and abroad, as to determining the causes and workings of the virus, designing appropriate and effective responses to the outbreak, and constructing accurate assessments of the future—or even of the present. Indeed, the availability of concrete information about the virus and its effects is grossly inadequate and often replaced by anecdotal or …

Should I Stay Or Should I Go: Student Housing, Remote Instruction, Campus Policies And Covid-19, Patricia E. Salkin, Pamela Ko

Scholarly Works

In March 2020, as the world scrambled to understand and address myriad public health and economic challenges unfolding from the novel coronavirus labeled COVID-19, higher education was forced into a tailspin. This article examines the legal and policy challenges that result from, among other issues, the congregate housing situations existing for on- and off-campus housing at colleges and universities. The legal issues demonstrate federalism at work and include; at the federal level, regulations and guidance from the White House, the Center for Disease Control (CDC) and the U.S. Department of Education; at the State level from gubernatorial executive orders, state …

Regulate Physician Restrictive Covenants To Improve Healthcare, Judy Ann Clausen

UF Law Faculty Publications

The U.S. healthcare reform agenda seeks to expand patient choice and access, improve quality, and control costs. This Article argues these goals should govern enforceability of physician non-compete and non-solicitation agreements (restrictive covenants). Most jurisdictions apply a reasonableness test to assess the enforceability of physician restrictive covenants. Some jurisdictions hold physician non-competes per se invalid. Courts applying the reasonableness test often disrupt continuity of care and harm patients; continuity of care is key to patient health. Moreover, physicians departing a practice have an ethical obligation to notify patients of the physician's departure and how to transfer to the physician's new …

How Come Mary-Jane Is Not On Workers’ Comp?: Requiring Rhode Island Workers’ Compensation Insurers To Reimburse Employees For Medical Marijuana, Devon Q. Toro

Roger Williams University Law Review

No abstract provided.

Reviving Focused Scrutiny In The Constitutional Review Of Public Health Measures, Robert Gatter

All Faculty Scholarship

This article re-examines the "focused scrutiny" standard proposed by Prof. Scott Burris in 1989 and argues for its application particularly during an infectious disease emergency such as the COVID-19 pandemic. Focused scrutiny seeks to tie judicial review of the constitutionality of public health measures closely to the facts of the particular disease and to evidence of the efficacy of each governmental action to prevent the spread of that disease, even when courts adopt rational basis testing.

Smoke Screens: An Initial Analysis Of The Coronavirus Lawsuits In The United States Against China And The World Health Organization, Ana Santos Rutschman, Robert Gatter

All Faculty Scholarship

In this short essay we provide a preliminary analysis of the lawsuits filed by Missouri against China, and New York against the World Health Organization over the COVID-19 pandemic. We also situate the lawsuits against the expanding coronavirus-related misinformation “epidemic.”

The Intellectual Property Of Vaccines: Takeaways From Recent Infectious Disease Outbreaks, Ana Santos Rutschman

All Faculty Scholarship

This Essay examines the ways in which intellectual property regimes influence incentives for the development of new vaccines for infectious diseases. Charting the tension between market forces and public health imperatives, the Essay considers an emerging solution to the long-standing problem of insufficient incentives for vaccine research and development: the rise of public-private partnerships in the health space. The Essay provides a short case study on CEPI, a large-scale public-private partnership dedicated exclusively to funding research on vaccines for infectious diseases. In exploring how the interaction between intellectual property rules and practices affect vaccine innovation, the Essay offers illustrations from …

The Case For Face Shields: Improving The Covid-19 Public Health Policy Toolkit, Timothy L. Wiemken, Ana Santos Rutschman, Robert Gatter

All Faculty Scholarship

As the United States battles the later stages of the first wave of COVID-19 and faces the prospect of future waves, it is time to consider the practical utility of face shields as an alternative or complement to face masks in the policy guidance. Without face shields specifically noted in national guidance, many areas may be reluctant to allow their use as an alternative to cloth face masks, even with sufficient modification.

In this piece, we discuss the benefits of face shields as a substitute to face masks in the context of public health policy. We further discuss the implications …

Nonexcludable Surgical Method Patents, Jonas Anderson

Utah Law Faculty Scholarship

A patent consists of only one right: the right to exclude others from practicing the patented invention. However, one class of patents statutorily lacks the right to exclude direct infringers: surgical method patents are not enforceable against medical practitioners or health care facilities, which are the only realistic potential direct infringers of such patents. Despite this, inventors regularly file for (and receive) surgical method patents. Why would anyone incur the expense (more than $20,000 on average) of acquiring a patent on a surgical method if that patent cannot be used to keep people from using the patent?

The traditional answer …

The Problems With Decision-Making, Joanna K. Sax

Faculty Scholarship

Our society faces major challenges in numerous areas, including climate change and healthcare. Addressing these problems with technological advances are of great importance. Increasingly, however, consumers are resisting or rejecting such technological interventions based on inappropriate assignment of risk. In other words, the consumer assessment of risk is not in line with evidence-based assessment of risk. This article focuses on two controversial areas, vaccines and genetically engineered food, as examples in which consumers assign a high risk despite an evidence-based assessment of low risk. This article describes how empirically tested decision-making theories explain why consumers inappropriately assign risk. While these …

Saving Money On Health Insurance Just Got A Lot Easier . . . Or Did It?: The Preserving Employee Wellness Programs Act And Its Impact On The Future Of Employee Health, Zachary Maciejewski

Indiana Law Journal

This Note addresses the growing use of employer-sponsored wellness programs in the American workplace and the concomitant harms and risks these programs impose on employee privacy and insurance costs. Specifically, this Note analyzes the Preserving Employee Wellness Programs Act (PEWPA)—a proposed law that would allow employers to require employees to disclose genetic information to qualify for an employer-sponsored wellness program (and the program’s associated insurance premium benefits). This Note ultimately argues that employees and employee advocacy groups must work to thwart PEWPA to preserve employee privacy in the face of mounting corporate pressure to alter the structure of employer-sponsored health …

Against The "Safety Net", Matthew B. Lawrence

Faculty Articles

Then-Representative Jack Kemp and President Ronald Reagan originated the “safety net” conception of U.S. health and welfare laws in the late 1970s and early 1980s, defending proposed cuts to New Deal and Great Society programs by asserting that such cuts would not take away the “social safety net of programs” for those with “true need.” Legal scholars have adopted their metaphor widely and uncritically. This Article deconstructs the safety net metaphor and counsels against its use in understanding health and welfare laws. The metaphor is descriptively confusing because it means different things to different audiences. Some understand the safety net …

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Faculty Articles

One thing we have seen today that we talk about in health law all the time is how the policy, the laws and institutions up at the 10,000 foot level, can so dramatically influence the personal, people’s lived experiences. Our speakers today have done a really great job of drawing out abstract institutional questions and also showing us how those questions have influenced the lives of real people in often tragic ways. Another thing we have seen that we talk about in administrative law all the time is the importance of expertise, especially given how hard it is to trace …

The Federal Law Clerk Hiring Pilot And The Coronavirus Pandemic, Carl Tobias

Law Faculty Publications

Just when law students attained a comfort level with the arcane intricacies of the federal law clerk employment process, as increasingly exacerbated by the second year of an experimental hiring pilot plan, the coronavirus attacked the country and has been ravaging it ever since. To date, the virus has inflicted the most profound harm on the jurisdictions that comprise all of the “coastal elite circuits” that span the District of Columbia north to Maine, as well as the United States Courts of Appeals for the Seventh and Ninth Circuits, which apply the pilot. This piece examines impacts that the coronavirus’ …