Health Law and Policy Commons^™

Intersectional Complications Of Healthism

Marquette Benefits and Social Welfare Law Review

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Tobacco Denormalization, Anti-Healthism, And Health Justice

Marquette Benefits and Social Welfare Law Review

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Remedying Stigma-Driven Health Disparities In Sexual Minorities, Valarie K. Blake

Scholarly Works

This paper explores the health harms of stigma in both patient-provider relationships and health insurer arrangements, before turning to legal solutions to combat healthcare discrimination on the basis of sex. It argues that Section 1557 of the Affordable Care Act is aptly designed to remedy stigma against sexual minorities in healthcare and has already done significant work to that end. This article also discusses the implications of repeal of either the ACA or Section 1557.

Unduly Burdening Women’S Health: How Lower Courts Are Undermining Whole Woman’S Health V. Hellerstedt, Leah M. Litman

Michigan Law Review Online

At the end of the Supreme Court’s 2016 Term, the Court issued its decision in Whole Woman’s Health v. Hellerstedt. One of the more closely watched cases of that Term, Hellerstedt asked whether the Supreme Court would adhere to its prior decision in Planned Parenthood v. Casey, which reaffirmed that women have a constitutionally protected right to decide to end a pregnancy.

The state of Texas had not formally requested that the Court revisit Casey or the earlier decision Casey had affirmed, Roe v. Wade, in Hellerstedt. But that was what Texas was, in effect, asking …

Charting The Middle Course: An Argument For Robust But Well-Tailored Health Care Discrimination Protection For The Transgender Community, John E. Farmer

Georgia Law Review

Section 1557 of the Patient Protection and Affordable
Care Act offers sweeping discriminationprotections for
patients, applicable to both health insurers and health
care providers who receive federal funding or are
subject to federal administration. Placing itself in the
canon of federal antidiscriminationlaws, Section 1557
incorporates Title IX of the Education Amendments of
1972 to prohibit discrimination on the basis of sex.
Just how sweeping this aspect of Section 1557s
prohibitions is has been the subject of controversy
exemplified in litigation in the federal courts, as well as
in the starkly contrasting views of two presidential
administrations. The Department of Health …

Private Right Of Action Jurisprudence In Healthcare Discrimination Cases, Allison M. Tinsey

Law Student Publications

Section 1557 of the Affordable Care Act provides that entities covered by the Act which receive federal funds are prohibited from discriminating on the basis of race, color, national origin, sex, age or disability. But since the provision’s enactment and the U.S. Department of Health and Human Services’ promulgation of a regulation creating a private right of action for alleged discrimination under the Act, courts have disagreed on whether a private right of action exists to enforce Section 1557. This Comment summarizes the courts’ confusion in applying the holding of Alexander v. Sandoval and Chevron deference to the nondiscrimination provision …

Health Information Equity, Craig Konnoth

Publications

In the last few years, numerous Americans’ health information has been collected and used for follow-on, secondary research. This research studies correlations between medical conditions, genetic or behavioral profiles, and treatments, to customize medical care to specific individuals. Recent federal legislation and regulations make it easier to collect and use the data of the low-income, unwell, and elderly for this purpose. This would impose disproportionate security and autonomy burdens on these individuals. Those who are well-off and pay out of pocket could effectively exempt their data from the publicly available information pot. This presents a problem which modern research ethics …

Introduction: Four Views On Healthism

Marquette Benefits and Social Welfare Law Review

None

Surviving The Storm 2016: Employee Benefit Compliance & Employment Law Update, George Thompson, Brooks R. Magratten, Mark A. Pogue, Kelli Viera, Cecily Banks, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Unfulfilled Promises: Discrimination And The Denial Of Essential Health Benefits Under The Affordable Care Act, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

The passage of the ACA is a source of great pride for President Barack Obama's Administration, and the President undoubtedly hopes that the ACA will be his greatest legacy. 285 As a result, it is difficult to understand why, under his administration, HHS has relinquished its rulemaking authority to the states regarding the core guarantees of the Act. For the individuals living in states in which promised essential health benefits have not yet become a reality, HHS has offered a glimmer of hope. In 2012, the agency released a bulletin stating that it would "revisit" its approach of allowing states …

Organ Transplantation Eligibility: Discrimination On The Basis Of Cognitive Disability, Tien-Kha Tran

Journal of Law and Policy

Congress passed the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 in response to the extensive history of discrimination Americans with disabilities have faced. These federal statutes provide that no individual is to be precluded from enjoying the programs provided by certain entities solely on the basis of their disability. However, this is difficult in regards to organ transplantation and individuals with cognitive disabilities. The issue lies where a physician is faced with the difficult decision in pursuing their moral and ethical obligations to preserve life while determining whether a specific cognitive disability is a contraindication …

Classifying Obesity As A Disability Under The Americans With Disabilities Act: How Seff V. Broward County Is Incongruent With Recent Ada Litigation, Maura Flaherty Mccoy

Catholic University Law Review

This Note discusses how employer wellness programs are potential breeding grounds for Americans with Disabilities Act discrimination claims in light of recent ADA cases relating to obesity and how courts’ treatment of the safe harbor provision of the ADA is incongruent with the broadening of ADA claims. It looks at the provisions of the ADA and how courts have traditionally defined “disability” in obesity cases, describes the ADA safe harbor provision, and discusses the advent of corporate wellness programs. This Note then analyzes Seff v. Broward County, the most notable wellness program case to-date, and how the court’s decision …

Contextualizing Gay‐Straight Alliances: Student, Advisor And Structural Factors Related To Positive Youth Development Among Members, Matthew P. Shaw

Vanderbilt Law School Faculty Publications

Gay-straight alliances (GSAs) may promote resilience. Yet, what GSA components predict well-being? Among 146 youth and advisors in 13 GSAs (58% lesbian, gay, bisexual, or questioning; 64% White; 38% received free/reduced-cost lunch), student (demographics, victimization, attendance frequency, leadership, support, control), advisor (years served, training, control), and contextual factors (overall support or advocacy, outside support for the GSA) that predicted purpose, mastery, and self-esteem were tested. In multilevel models, GSA support predicted all outcomes. Racial/ethnic minority youth reported greater well-being, yet lower support. Youth in GSAs whose advisors served longer and perceived more control and were in more supportive school contexts …

Modernizing The Emergency Medical Treatment & Labor Act To Harmonize With The Affordable Care Act To Improve Equality, Quality And Cost Of Emergency Care, Katharine A. Van Tassel

Faculty Publications

The Emergency Medical Treatment and Active Labor Act (EMTALA) is a federal statute passed almost 30 years ago which was designed to ensure equal access to emergency treatment and to halt the practice of “patient dumping.” Patient dumping is a situation where some patients—typically uninsured, disabled, and minority individuals—receive inferior emergency medical care or are denied emergency medical treatment altogether. The goal of EMTALA is to ensure that everyone coming to the emergency room will receive equal care.

Unfortunately, despite EMTALA, the practice of patient dumping has continued to this day. The most recent case in the news is the …

The Dsm-5: Implications For Health Law, Stacey A. Tovino

Faculty Articles

In May 2013, the American Psychiatric Association released the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders ("DSM-5"). Among other changes, the DSM-5 includes new entries for hoarding disorder and premenstrual dysphoric disorder as well as a reclassified entry for gambling disorder. Using these changes as examples, this Article examines the implications of the DSM-5 for key issues in health law, including health insurance coverage, public and private disability benefit eligibility, and disability discrimination protection. As a descriptive matter, this Article illustrates how the addition of new disorders and the reclassification of existing disorders in the DSM-5 …

Will Neuroscience Redefine Mental Injury?: Disability Benefit Law, Mental Health Parity Law, And Disability Discrimination Law, Stacey A. Tovino

Faculty Articles

No abstract provided.

The Americans With Disabilities Act At 25: The Highest Expression Of American Values, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Enacted in 1990, the Americans with Disabilities Act (ADA) is a watershed piece of legislation which enshrines in law a social promise of equality and inclusion into all facets of life, while offering an inspiring model that much of the world has come to embrace. This editorial launches JAMA’s theme issue on the 25th anniversary of the ADA by detailing the Act’s history, main provisions, and far-reaching impacts on health, providing a context for the three Original Investigations and six scholarly Viewpoints that make up the theme issue. The editorial begins with a discussion of the ADA’s history, highlighting …

The Fourth Trimester, Saru M. Matambanadzo

University of Michigan Journal of Law Reform

This Article introduces a new conceptual framework to the legal literature on pregnancy and pregnancy discrimination: the fourth trimester. The concept of a fourth trimester, drawn from maternal nursing and midwifery, refers to the crucial three to six month period after birth when many of the physical, psychological, emotional, and social effects of pregnancy continue. Giving this concept legal relevance extends the scope of pregnancy beyond the narrow period defined by conception, gestation, and birth and acknowledges that pregnancy is a relational process, not an individual event. In the United States, however, antidiscrimination law has failed to acknowledge the demands …

Beyond Title Vii: Rethinking Race, Ex-Offender Status, And Employment Discrimination In The Information Age, Kimani Paul-Emile

Faculty Scholarship

More than sixty-five million people in the United States—more than one in four adults—have had some involvement with the criminal justice system that will appear on a criminal history report. A rapidly expanding, for-profit industry has developed to collect these records and compile them into electronic databases, offering employers an inexpensive and readily accessible means of screening prospective employees. Nine out of ten employers now inquire into the criminal history of job candidates, systematically denying individuals with a criminal record any opportunity to gain work experience or build their job qualifications. This is so despite the fact that many individuals …

Lost In The Shuffle: How Health And Disability Laws Hurt Disordered Gamblers, Stacey A. Tovino

Faculty Articles

Gambling disorder is not a legally sympathetic health condition. Health insurance policies and plans have long excluded treatment for gambling disorder from health insurance coverage. Individuals with gambling disorder who seek disability income insurance benefits from public and private disability income insurers also tend not to be successful in their claims. In addition federal and state antidiscrimination laws currently exclude individuals with gambling disorder from disability discrimination protections. This Article is the first law review article to challenge the legal treatment of individuals with gambling disorder by showing how health insurance and antidiscrimination laws hurt problem gamblers. Using neuroscience, economics, …

Discrimination In Baby Making: The Unconstitutional Treatment Of Prospective Parents Through Surrogacy, Andrea B. Carroll

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

Hierarchies Of Discrimination In Baby Making: A Response To Professor Carroll, Radhika Rao

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

How Parents Are Made: A Response To Discrimination In Baby Making: The Unconstitutional Treatment Of Prospective Parents Through Surrogacy, Kimberly M. Mutcherson

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel

Faculty Scholarship

In this Essay, I offer a few thoughts in response to Jeffrey Rosen's contribution to this symposium on Jack Balkin's "Living Originalism". I will first focus on what he writes about the "new textualism." I will then reply to what he intimates about the continuing validity of Roe v. Wade. In short, I will argue that Rosen offers progressives little reason to accept the new textualism or to reject Roe in the name of legal fidelity.

If the abortion right is ultra vires because a lack of decisive warrant in text, structure, and history trumps mediating equality principles and legal …

Equality Standards For Health Insurance Coverage: Will The Mental Health Parity And Addiction Equity Act End The Discrimination?, Ellen M. Weber

Faculty Scholarship

Congress enacted the Mental Health Parity and Addiction Equity Act in 2008 to end discriminatory health insurance coverage for persons with mental health and substance use disorders in large employer health plans. Adopting a comprehensive regulatory approach akin to other civil rights laws, the Parity Act requires “equity” in all plan features, including cost-sharing, durational limits and, most critically, the plan management practices that are used to deny many families medically necessary behavioral health care. Beginning in 2014, all health plans regulated by the Affordable Care Act must also comply with parity standards, effectively ending the second-class insurance status of …

'No Body Left Behind': Re-Orienting School-Based Childhood Obesity Interventions, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

Although there are now laws on the books in virtually every jurisdiction aimed at addressing childhood obesity in K-12 schools, these efforts are inadequate and may even be misguided in important ways. Efforts aimed at health promotion - through healthier eating and increased physical activity - remain woefully underfunded even as they proliferate at every level of government. It is one thing to enact a requirement that all schools offer a minimum number of minutes of physical education each week or that school lunches include more fruits and vegetables. But it is quite another to make the budgetary commitment to …

The Affordable Care Act And Health Promotion: The Role Of Insurance In Defining Responsibility For Health Risks And Costs, Wendy K. Mariner

Faculty Scholarship

This article examines whether insurance is an appropriate mechanism for improving individual health or reducing the cost of health care for payers. The Affordable Care Act contains implicit standards for allocating responsibility for health, especially in provisions encouraging health promotion and wellness programs. A summary of the accumulating evidence of the effects of such programs suggests that wellness programs have been somewhat more effective in making people feel better than in reducing costs. Health promotion should be encouraged, because health is valuable for its own sake. Insurance is not well suited to improve health or manage behavioral risks to health; …

Finding A Cure In The Courts: A Private Right Of Action For Disparate Impact In Health Care, Sarah G. Steege

Michigan Journal of Race and Law

There is no comprehensive civil rights statute in health care comparable to the Fair Housing Act, Title VII, and similar laws that have made other aspects of society more equal. After Congress passed the Civil Rights Act of 1964, Title VI served this purpose for suits based on race, color, and national origin for almost four decades. Since the Supreme Court's 2001 ruling in Alexander v. Sandoval, however, there has been no private right of action for disparate impact claims under Title VI, and civil rights enforcement in health care has suffered as a result. Congress has passed new legislation …

Will Full Benefits Parity Create Real Parity? – Congress’S Second Attempt At Ending Discrimination Against Mental Illness: The Paul Wellstone And Pete Domenici Mental Health And Addiction Equity Act Of 2008, Justin C. Wilson

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo

All Faculty Scholarship

The Genetic Information Nondiscrimination Act of 2008 (“GINA”) is the first federal, uniform protection against the use of genetic information in both the workplace and health insurance. Signed into law on May 21, 2008, GINA prohibits an employer or health insurer from acquiring or using an individual’s genetic information, with some exceptions. One of the goals of GINA is to eradicate actual, or perceived, discrimination based on genetic information in the workplace and in health insurance. Although the threat of genetic discrimination is often discussed in universal terms - as something that could happen to any of us - the …