Health Law and Policy Commons^™

Access To Primary Care And Health Care Fragmentation, Sharona Hoffman, Ishani Ganguli

Faculty Publications

This Article examines the growing crisis of long primary care wait times and the health care fragmentation that is associated with them. Patients who feel ill or are worried about new symptoms must often wait weeks or longer for appointments. In the wake of excessive wait times for primary care physician (PCP) appointments, patients increasingly turn to convenience care models such as urgent care centers, retail clinics, direct-to-consumer telemedicine, and at-home testing. While these alternatives offer prompt attention, they sacrifice other core functions of primary care and may exacerbate poor health outcomes and inequities. The Article argues that long wait …

Memoir: The Brain, Neuroethics, And Bioethics, Leslie C. Griffin

Scholarly Works

This Essay examines how developments in neuroscience (or brain science) affect our views of law, medicine, ethics, and religion. Part I shows how lack of clarity about brain death can lead to premature organ donation. Part II argues that health care too often provides inadequate brain care and incomplete rehabilitation. Part III explains why recovery may be possible for those braininjured patients who are told it is not. Part IV demonstrates how the fear of a brain-injured patient oddly affects my perspective on Tort and Criminal Law, which are being influenced by neuroscientific advances. Part V examines the new developments …

Could Have Seen That Coming: New York State Department Of Health Taken To Task For Failing To Provide Proper Oversight Of Medicaid Managed Care Provider Networks, Lance Plunkett Jd, Llm

The New York State Dental Journal

A recent audit conducted by the Office of the New York State Comptroller (OSC) found that the New York State Department of Health (NYSDOH) oversight of Medicaid managed care healthcare provider networks was largely illusory and a paperwork sham. This raises the much larger question of whether Medicaid managed care is really serving the population of Medicaid patients. It is already almost a given that it is not serving healthcare providers well.

Covid And The Great Retrenchment, Samuel R. Bagenstos

Articles

The past six years have seen two dramatic shifts in federal health and benefits policy. First, during the COVID pandemic, the government dramatically expanded public benefits. These expansions had incredibly positive effects, and recipients were largely satisfied with them. But after a relatively short time, Congress rolled back nearly all of the expansion. Worse, the immediate pullback set the stage for even more significant retrenchments in the second Trump Administration. Where in 2023 the United States came closest to universal health care in its history—with a record low uninsured rate of 7.7%—the Trump Administration’s Medicaid cuts and failure to extend …

Fda After Loper Bright, Erika Lietzan

Faculty Publications

Loper Bright, which overruled the Chevron decision from 1984, tells us that a court should determine the meaning of all statutory provisions for itself, rather than deferring to the views of the federal agencies that implement those provisions. But the overruling of Chevron may have less of an impact on the U.S. Food and Drug Administration than conventional wisdom supposes. Most challenges to FDA action do not concern its statutory interpretations. And the agency prevailed in most cases involving statutory interpretation, before the Chevron doctrine took hold. After 1984, when the doctrine did apply, the agency often lost cases at …

Advancing Neurotech Justice In Youth Digital Mental Health: Insights From An Interdisciplinary And Cross-Generational Workshop, Francis X. Shen, Craig W. Mcfarland, Donnella S. Comeau, Leo Anthony Celi, Benjamin C. Silverman, Sepideh Abdi, Mahsa Alborzi Avanaki

Articles

Researchers and clinicians are increasingly looking to leverage artificial intelligence (AI) and digital tools to improve psychiatric care. Of particular promise is addressing the youth mental health crisis. Yet, the introduction of AI-enabled digital technologies for psychiatric treatment of young adults raises a host of ethical, legal, and societal issues (ELSI). To provide guidance in addressing these issues, we convened a two-day meeting at the Radcliffe Institute for Advanced Study at Harvard University: Advancing Neurotech Justice in Mental Health: Insights from an Interdisciplinary and Cross-Generational Workshop. The meeting brought together a diverse cohort of 17 experts and 5 students …

A New Framework For Drug Pricing Law And Policy, Rachel E. Sachs

Indiana Law Journal

Scholars and policymakers have expressed concern about the impact of high prescription drug costs on patients and healthcare budgets. This Article presents a new theoretical framework for evaluating both the problem to be addressed by drug pricing reforms as well as the efficacy of potential solutions. In seeking to solve “the drug pricing problem,” our legal system has given primacy to competition rather than regulation to drive down drug prices. This Article disaggregates the broader concept of drug competition into four steps, each of which must be addressed and each of which elevates different institutional actors to key roles. In …

When Death Is Not Binary, Teneille R. Brown

Indiana Law Journal

There are few dichotomies more recognized than the one between life and death. Given the many legal rights that pivot on this distinction, one would think that the law has exceptionally clear standards for diagnosing death. It may surprise you then to learn that the line between legal life and death is no longer so obvious. That is, in a growing number of cases, there is now disagreement about whether someone is legally dead or alive. This is due to two things: the development of medical devices that can breathe for patients with severe brain injuries, and neuroimaging technology that …

Reconceiving Safety Regulation For Ai And Ml Medical Software, Barbara J. Evans, Eric S. Rosenthal, Azra Bihorac

UF Law Faculty Publications

This article explores the challenges of regulating AI and ML clinical decision support tools intended to assist trained health care professionals in delivering clinical care. Two old, twentieth-century regulatory models have dominated discussions of medical AI policy since 2013. Thinking inside these old regulatory boxes has not produced effective regulatory solutions to address the novel risks AI poses in clinical care. The first regulatory box treats software as a medical device, which tasks medical device regulators with making software safe but neglects the crucial roles physicians, nurses, administrators, medical practice regulators, and other health oversight bodies must also play to …

True Man, Captive Mother: Abortion As A Fundamental Self-Defense Right, Nicholle Vandy

Indiana Journal of Law and Social Equality

Abortion healthcare has faced significant challenges since the Supreme Court held in Dobbs v. Jackson Women’s Health Organization that there exists no constitutional right to abortion. Contrastingly, the right to bear arms, grounded in the right to self-defense, has strong constitutional protections, as highlighted in New York State Rifle & Pistol Association v. Bruen. The extension of the right to self-defense is exemplified by the proliferation of Stand Your Ground laws in numerous states.

This Comment examines the growing tension between self-defense doctrine, particularly through Stand Your Ground laws, and the increasing criminalization of abortion in various states. It …

Immortal Justice: Why The Henrietta Lacks Family Merits Restitution Today, Suzette Malveaux

Scholarly Articles

Almost three quarters of a century have passed since Henrietta Lacks had her cells biopsied from her cervix without her knowledge or consent. Upon discovering that Henrietta’s cells were immortal, scientists have been able to solve the most vexing medical problems of modern times and save countless lives worldwide. Aware of the cells’ scandalous origins, big pharma has nonetheless commercialized and wildly profited from the HeLa cell line without sharing the benefit with Henrietta’s family, who has been left traumatized and destitute by the initial theft.

Despite the passage of time, Henrietta’s family is seeking restitution today from pharmaceutical companies …

The Law’S Failure To Protect Our Drinking Water From Pfas, Emily Levine

Indiana Law Journal

How did per- and polyfluoroalkyl substances (PFAS), the forever chemicals known to harm human health and appear in most Americans’ blood, spread so widely in drinking water? Why didn’t someone with the power and knowledge to stop this crisis step in sooner? Simply imposing limits on PFAS levels in public water systems is the bare minimum to protect American drinking water—a necessary step but only the starting point of a long path toward creating a regulatory framework that can withstand the whims of changing presidential administrations and political influences.

     It is too easy for the EPA Administrator, either out of …

Creating An Abortion Safe Harbor Using The Doctrine Of Double Effect, Evelyn M. Tenenbaum

American University Journal of Gender, Social Policy & the Law

[INTRODUCTION] In the three years since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (Dobbs) holding that women no longer have a constitutional right to an abortion, many family physicians, obstetricians, and gynecologists have refrained from—or delayed—providing abortion services to pregnant women, even when that restraint created a substantial risk of causing serious injury or death. This reluctance to provide care is labeled physician hesitancy, which is defined as physicians acting in their own professional or personal interest to deny or delay care that would otherwise be provided under the prevailing standard of care.

It …

Founding Mothers: The Nineteenth Amendment’S Place In Originalist Due Process Analysis, Tracy Turner

American University Journal of Gender, Social Policy & the Law

[INTRODUCTION] During a public speech in 1856, Sojourner Truth is described as stating: “I have had two husbands yet I never possessed one of my own. I have had five children and never could take any one of them up and say “my child” or “my children . . .” One of Truth’s two husbands was an older enslaved man, forced upon her for the purpose of providing new victims of slavery. The second husband may have been a man she considered to be her real husband but was never allowed to marry. By law, Truth’s children belonged entirely to …

Civil Rights In Theory, Health Disparities In Practice: Affordable Care Act Section 1557 And The Maternal Mortality Crisis, Grace Hall

American University Journal of Gender, Social Policy & the Law

[INTRODUCTION] On a hot Fourth of July in 2021, Harmony Ball-Stribling spent her final day laughing with her husband, hours before preeclampsia killed her. Harmony was eight months pregnant and living in Belzoni, Mississippi, where she celebrated the holiday with her church congregation. Her congregation prayed over her and her baby for a safe delivery, as she was scheduled to have a cesarean section in five days.

Later that evening, Harmony woke in agony, vomited, and complained of chest pain to her husband, Mr. Stribling. Harmony’s husband put his wifein their car and began the more than thirty-mile drive to …

Enforcing International Humanitarian Law Through The Business Responsibility To Respect Human Rights, Tara Van Ho

Faculty Articles

Insulation produced by the Danish company Rockwool—or its Russian subsidiary—lines thirty-one Russian Navy warships. Though not a weapon, this material is essential to the vessels’ operation. Did Rockwool have a responsibility under international law to stop the transfer of the insulation to the Russian Navy before Russia’s 2022 invasion of Ukraine? This article examines the business responsibilities under the 2011 United Nations Guiding Principles on Business and Human Rights (“UNGPs”). In doing so, the article finds that the business responsibility to respect human rights in the UNGPs provides a strong mechanism for enforcing international humanitarian law (“IHL”). However, it requires …

Medicaid's Broken Promise To Children, Jerron R. Wheeler

Faculty Articles

In the United States, poor children's access to necessary healthcare is determined more by geography than medical need. This variation is not the result of thoughtful local tailoring but of excessive state autonomy and passive federal oversight. The result is a fragmented and unequal system that obscures accountability and fails the Nation's most vulnerable children.

Building on scholarship showing how decentralized implementation of federal social programs can erode America's social safety net, this Article examines how one of Congress's most ambitious entitlements for children-Medicaid's Early and Periodic Screening, Diagnostic and Treatment (EPSDT) benefit has been quietly undermined. In light of …

Fluoride Justice, Brandon Ambrosino Phd, Mts, Ma

Journal of the American College of Dentists

Despite once being hailed as the second most effective medical intervention of the 20th century, fluoride has recently come under public attack. Taking aim at community water fluoridation, critics allege that fluoridation should be a matter of personal choice. This claim, however, overlooks both basic dental science and, more importantly, questions about our mutual obligations. This essay argues that providing people from all walks of life with access to a safe, low-cost, easy-to-use water source proven to improve oral health outcomes is an issue of community justice.

An Incidental Standard For Medical Ai, Nicholson W. Price Ii

Articles

Medical AI is poised to make a major difference in the provision of health. It brings major challenges, though: how can developers and implementers ensure that it will work safely and effectively—especially within the context of complex and highly variable health-care systems? Standards provide one key tool, potentially providing guidelines for everything from privacy to accuracy to how AI interacts with human clinicians. This Essay considers the last of these, describing a powerful quasi-standard from a surprising source: an FDA guidance document that tells developers when certain AI systems are not considered medical devices, and are therefore not regulated by …

Overbreadth In Medical Practice Acts: A Threat To Preventive Speech, Barbara Zabawa

Faculty Works

Many Americans consult unlicensed wellness coaches for scientifically-valid advice on diet, exercise, and lifestyle interventions. Yet state medical practice acts and ambiguous government line drawing between wellness and medical care chill the speech of these coaches as it relates to disease prevention, even though conventional medicine systematically fails to deliver the speech-heavy preventive care consumers need and want. This Article argues that medical practice acts, particularly the sixteen state statutes that include "prevention" in their definition of medical practice, are constitutionally overbroad restrictions on protected speech. Despite judicial and scholarly assumptions to the contrary, not all those working in wellness …

J Am Coll Dent 2026 92 2b

Journal of the American College of Dentists

This special issue of the Journal of the American College of Dentists responds to a growing but long-underrecognized demand for humanities and ethics in dental education, practice, and scholarship. It emerges from the work of the National Collaborative on Humanities and Ethics in Dentistry (NCHED), a multi-institutional partnership formed in 2023 to address the persistent exclusion of dentistry from broader health humanities conversations. Through national webinars and scholarly collaboration, NCHED has demonstrated substantial interest in ethical reflection, historical analysis, narrative inquiry, and the arts as essential to understanding oral health and dental care.

The unexpectedly strong response to the call …

The New Transgender Tipping Point: Trumpism, Medical Necessity & Gender-Affirming Care, Molly J. Nunn

William & Mary Journal of Race, Gender, and Social Justice

Following the rise and eventual triumph of Trumpism 2024, President Donald J. Trump and his administration have sought to discredit the internationally recognized standards of effective health care practice for gender-affirming care. Now, ten years after Time Magazine published “The Transgender Tipping Point,” the political discourse of transgender identity is tipping again. Under the second Trump Administration, transgender identity sits at the edge of an abyss. Trumpism seeks to eradicate or significantly limit access to gender-affirming care through executive actions and the judiciary, despite the plethora of medical associations stating that that care is medically necessary. Public policies that widely …

The Dead Hand And Frozen Lives: Embryonic Personhood And The Disruption Of Property Interests, Emma Miloglav

Fordham Law Review

Advances in assisted reproductive technology and the expansion of fetal personhood laws are colliding with a body of property doctrine built on assumptions about reproduction that no longer hold. In LePage v. Center for Reproductive Medicine, P.C., the Supreme Court of Alabama held that extrauterine embryos—fertilized and frozen in a laboratory—are “children” under the state’s Wrongful Death of a Minor Act. LePage represents a dramatic extension of fetal personhood.

This shift carries profound consequences for trusts and estates. If frozen embryos are treated as legal persons, they may qualify as heirs under intestacy statutes and as beneficiaries of wills, …

Striving To Thrive: Balancing Digital Health Innovation And Patient Protection Under Thailand’S Legal Framework, Thidarat Liamsomboon

Theses and Dissertations

The digitalization of health care has fundamentally transformed how health care services are accessed, delivered, and experienced worldwide. Telemedicine, artificial intelligence–assisted diagnostics, electronic health records, wearables, and mobile health applications are no longer novelties, but have become a substantial part of a modern clinical practice. Although these technologies offer great prospects for making health care more accessible, reducing administrative burden, and improving the quality of care, they also pose significant legal and regulatory challenges. The rate of technological development has far outpaced Thailand’s existing legal frameworks for regulating medical practice, professional accountability, and patient protection. This regulatory “lag” has generated …

Food Stamp Participation And Health Outcomes In Ca Immigrants, Esther Kang

Scripps Senior Theses

The U.S. social welfare system includes programs aiming to increase access to nutritious food to reduce nutrition insecurity. However, studies suggest that immigrants continue to face disproportionate risks of nutrition insecurity and may face barriers to enrollment due to legal status. This study, using secondary data from the 2023 California Health Interview Survey, examines the associations between food stamp participation, food insecurity, and clinical diagnosis of diabetes among adult U.S.-born, naturalized, and non-citizen adults in California. The findings suggest that those enrolled in food stamps are more likely to report food insecurity than those who are not enrolled, and that …

Treatment Sentences, Evelyn Malavé

Faculty Publications

One of the most common mandates of a non-incarceratory sentence is to submit to treatment. Across the criminal legal system, from problem-solving courts to probation, millions of defendants sentenced to non-incarceratory sentences—including people not diagnosed with a substance abuse disorder—are required to attend drug treatment programs. After decades of policies that criminalized drug use, non-incarceratory sentences that match people with treatment may appear to be a step forward—or at least not the most pressing problem.

But criminal law scholarship has not fully reckoned with the harms of treatment sentences, including the harms of mandated treatment itself. Analysis of treatment sentences …

Fear, Delay, And Preventable Death: Rethinking Wyoming's Legislative Framework To Reduce Barriers In Overdose Emergency Reporting, Shoshana Sangros

Wyoming Law Review

This Comment asks whether Wyoming’s current immunity framework for reporting overdoses truly reduces delays in emergency treatment when distance, weather, and limited emergency medical service (EMS) capacity already regularly extend response times. It proposes that by amending two Wyoming statutes and funding statewide education, the goal of reducing barriers to calling 9-1-1 to report overdoses can be better achieved, and residents better protected. To support these proposed changes, Part II provides a concise account of relevant Wyoming statutory protections. Part III proposes specific amendments that would address the on-the-ground challenges of the Wyoming emergency response system. These adjustments will utilize …

Health Care Fraud And The End Of Chevron, Joan H. Krause

Health Matrix: The Journal of Law-Medicine

What do the Environmental Protection Agency’s “plantwide” definition of a “stationary” pollution source,” a National Marine Fisheries Service determination of who pays for fishing boat observers, and a Department of Health and Human Services rule governing the marketing of prescription drugs have in common? In short, a government agency’s interpretation of a federal statute. All three cases go to the heart of the administrative state: the ability of an agency, staffed by experts in the field, to interpret static statutory language to offer practical guidance to an ever-evolving industry.

The same is true of health care fraud, although it is …

Contrasting Visions Of Age: Manifestations Of Ageism In Law, Art, And Health Care, Janet L. Dolgin

Health Matrix: The Journal of Law-Medicine

Ageism has befuddled the law’s attempts at remediation. Each “ism” (e.g., sexism, racism) differs from the others. Ageism, however, differs fundamentally from other “isms.” That difference explains the law’s failure to limit it. This article describes the difference, and it explains why that difference has rendered ageism resistant to legal remedies. Legal scholars and gerontologists have asked why the law’s efforts to limit the bias, stigma and discrimination that stem from ageism have largely failed. A remarkable framework for responding to that query derive from literary and artistic depictions of old people over time.

This article has identified shifting visions …

Predictive Health Discrimination: Cabining Ai Risk Assessment To Protect Worker Data, Elizabeth A. Brown

Health Matrix: The Journal of Law-Medicine

Predictive health data monitoring is rapidly expanding in workplaces, outpacing legal protections and exposing workers to new risks. Employers may now use analytics powered by artificial intelligence (“AI”) to identify which workers are most likely to develop future disabilities, raising the threat that these workers will face limited opportunities and discrimination before such action is clearly illegal.

Employers are accelerating predictive biometric surveillance, fueled by financial incentives like reduced health insurance costs and higher productivity, accommodations for older workers, and the ubiquity of predictive analytics in general. Current federal and state laws offer scant protection against discrimination based on predicted …