Health Law and Policy Commons^™

The Law Of Health Equity, Govind Persad

Utah Law Review

Since 2025, health equity has faced increasing hostility from federal courts, agencies, and the executive branch. Yet health equity’s promise— to narrow stark health gaps along racial, economic, and other lines— remains urgent and widely endorsed by states, localities, and nongovernmental actors. Evaluating how health equity efforts might falter under or surmount these challenges requires understanding their legal underpinnings: the law of health equity.

This Article is the first in legal scholarship to comprehensively examine federal, state, and private sector health equity commitments. It reveals sustained societal recognition of health equity’s importance, while highlighting the need for more precise and …

Implicit Bias Training Standards In Health Care: Did Michigan Get It Right? A Policy And Ethical Framework Analysis, Megan Gailliard, Kieran Fogarty, Mary Lagerwey

The Open Journal of Occupational Therapy

In 2022, Michigan joined a handful of states requiring implicit bias training for its health care professionals. In its ideal application, implicit bias training of health care professionals will result in a reduction of the implicit biases held by health care providers. This bias reduction will, in theory, contribute to improved equity in the delivery of health care services. Ultimately, the less biased health professional, now delivering health care services with a more equitable hand, will help reduce health disparities in the State of Michigan.

This analysis of Mich. Admin. Code R.338.7004 - Implicit bias training standards for licensed and …

Mitigating Firearm Suicide With Trusted Messengers In Health Care, Michael Ulrich, Cassandra Devaney

Faculty Scholarship

Voluntary firearm safety actions avoid Second Amendment scrutiny, but rely on individuals recognizing their own risks. This could be aided by a network of healthcare professionals that have received proper training and information about all available tools to help prevent firearm-related suicide attempts, and combining the trust of clinicians and firearm owners could represent an opportunity to inform and educate in a manner that will engage patients.

Doctors Playing Lawyers: Lessons For Professional Regulation In Crisis, Rebecca H. Allensworth

Vanderbilt Law School Faculty Publications

When someone gets in legal trouble in America, their case is almost invariably decided by a lawyer (a judge), lay people (a jury), or a combination of the two. Professional discipline, however, is a giant unexplained exception. In professional discipline matters, accusations of dangerous or incompetent practice are decided, usually in the first instance but always in the last, by state licensing boards composed of other members of the accused’s profession. These licensing boards wield immense power as labor regulatory institutions, covering ten times as many American workers as the minimum wage and more workers than private and public sector …

Patient Autonomy, Public Safety, And Drivers With Cognitive Decline, Sharona Hoffman, Cassandra Burke Robertson

Faculty Publications

With a growing elderly population, cognitive decline in drivers has become a significant public safety concern. Currently, over thirty-two million individuals who are seventy or older have driver’s licenses, and that number is growing quickly. In addition, almost ten percent of U.S. seniors (those sixty-five and older) have dementia, and an additional twenty-two percent have mild cognitive impairment. Between a quarter and a half of individuals with mild to moderate dementia still drive. As cognitive abilities such as memory, attention, and decision-making skills deteriorate, a driver's ability to operate a vehicle safely can be compromised. This not only puts the …

Tribal Health Self-Determination: The Role Of Tribal Health Systems In Actualizing The Highest Attainable Standard Of Health For American Indians And Alaska Natives, Vanessa Ann Racehorse

Publications

In this Article, I explore the concept of Tribal self-determination in the context of systems that serve American Indian and Alaska Native communities. I investigate the vast health disparities that exist in Tribal communities, as well as the history and current legal framework for the provision of health care in Indian Country. Part of this discussion also provides information on the federal laws and policies that have fractured the traditional lifeways of Native communities and contributed to the disparate health outcomes that now exist. I also provide background on the fundamental federal laws and policies, particularly the Indian Self-Determination and …

The Criminalization Of Care: Health And The Home, Teneille R. Brown

Utah Law Review

In this issue of the Utah Law Review, our readers will hear from a variety of perspectives on how the criminalization of care is impacting our communities. Noa Ben-Asher and Margot Pollans describe how “regret” has been exploited by conservative groups in campaigns to paternalistically ban abortion and genderaffirming care. They lay out how the parallel legal strategies between bans on abortion and gender-affirming care are hardly coincidental. Rather, there is a coordination effort to pervert informed consent doctrine to promote “traditional family values,” and to police reductive heteronormative visions of identity.

Malpractice Litigation Related To Management Of Varicocele: A Legal Database Review, Eric Zhou, Nicholas Sellke, Helen Sun, Kimberly Tay, Sherry Mortach, Ramy Abou Ghayda, Aram Loeb, Nannan Thirumavalavan

Student Scholarship

There have been studies that examined litigation procedures stemming from the management and treatment of various urological issues [6, 8]. Varicocele is a common urologic condition and can be associated with pain, subfertility, and infertility, thus greatly impacting patient well-being and quality of life. It has a prevalence of 15% in the general male population and up to 35% in males with infertility [9]. Varicocele has a range of treatment options, from observation to pain management to surgical correction. To our knowledge, no legal claims database investigation into varicocele cases exists. Elucidating the factors that go into varicocele litigation could …

Charging Abortion, Milan Markovic

Faculty Scholarship

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in antiabortion states have pledged to not enforce antiabortion laws, whereas others are targeting even out-of-state providers. This post-Dobbs reality, wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney, has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, …

Systemic Failures In Health Care Oversight, Julie L. Campbell

Georgia Law Review

Hospitals are intentionally shirking their duty to identify and report incompetent medical practitioners, and it is causing catastrophic injuries to patients. Why are hospitals doing this? Two decades of health care reforms have changed the way physicians and hospitals interact in the U.S. health care system, and as a result, the traditional health care oversight tools no longer work to ensure physician competence. With three out of four physicians now employees of hospitals or health care systems, hospitals have become the guardians of both the internal and external warning systems designed to flag incompetent practitioners. As the guardians, hospitals are …

Rural Health Care In The Age Of Hospital Bankruptcies, Sonal Rastogi

Emory Bankruptcy Developments Journal

In recent years, the United States has witnessed a surge in bankruptcy filings within the healthcare sector. Inflation, rising expenses, shifts in payment models, labor shortages, legislative uncertainty, and mounting pharmaceutical costs have impacted all healthcare organizations, casting a shadow over communities. This is particularly evident in rural America where hospital closures have shrunk access to healthcare services. This Comment delves into the challenges and interests at play when healthcare entities and nonprofit organizations navigate bankruptcy proceedings, paying particular attention to the challenges faced by health care business bankruptcy proceedings.

This Comment argues that the current bankruptcy framework requires adjustments …

Defining Health Affordability, Govind C. Persad

Sturm College of Law: Faculty Scholarship

Affordable health care, insurance, and prescription drugs are priorities for the public and for policymakers. Yet the lack of a consensus definition of health affordability is increasingly recognized as a roadblock to health reform efforts. This Article explains how and why American health law invokes health affordability and attempts, or fails, to define the concept. It then evaluates potential affordability definitions and proposes strategies for defining affordability more clearly and consistently in health law.

Part I examines the role health affordability plays in American health policy, in part by contrasting the United States’s health system with systems elsewhere. Part II …

Health Care Fraud And The Erosion Of Trust, Katrice Bridges Copeland

Northwestern University Law Review

In health care, trust is a foundational concept. Patients must trust that their medical practitioners are competent to treat them. The trustworthiness of medical practitioners encourages patients to disclose intimate facts about their medical issues. Further, patients must trust health care providers to demonstrate impartial concern for the patients’ well-being, also known as fidelity. In providing care, the needs of the patients, rather than financial incentives, must drive medical practitioners. Without this trust, patients may not cooperate with diagnosis and treatment. In addition to trusting providers, care outcomes are better if patients trust the health care system as a whole. …

The Shared Ethical Framework To Allocate Scarce Medical Resources: A Lesson From Covid-19, Ezekiel J. Emanuel, Govind C. Persad

Sturm College of Law: Faculty Scholarship

The COVID-19 pandemic has helped to clarify the fair and equitable allocation of scarce medical resources, both within and among countries. The ethical allocation of such resources entails a three-step process: (1) elucidating the fundamental ethical values for allocation, (2) using these values to delineate priority tiers for scarce resources, and (3) implementing the prioritisation to faithfully realise the fundamental values. Myriad reports and assessments have elucidated five core substantive values for ethical allocation: maximising benefits and minimising harms, mitigating unfair disadvantage, equal moral concern, reciprocity, and instrumental value. These values are universal. None of the values are sufficient alone, …

Pro-Choice Plans, Brendan S. Maher

Faculty Scholarship

After Dobbs v. Jackson Women’s Health Organization, the United States Constitution may no longer protect abortion, but a surprising federal statute does. That statute is called the Employee Retirement Income Security Act of 1974 (“ERISA”), and it has long been one of the most powerful preemptive statutes in the entire United States Code. ERISA regulates “employee benefit plans,” which are the vehicle by which approximately 155 million people receive their health insurance. Plans are thus a major private payer for health benefits—and therefore abortions. While many post-Dobbs anti-abortion laws directly bar abortion by making either the receipt or provision of …

A Case For Brandeisian Federalism: The Erisa Preemption Clause And State Health Care Reform, Jordan May

DePaul Journal of Health Care Law

The United States spends more for health care per capita than any other country in the world. Despite spending more, the United States has weaker health care outcomes than other similarly developed countries. This fact alone makes health care an important subject for policy reform. Given the current partisan gridlock in Congress, it is difficult to foresee any significant legislation in the area of health care reform at the federal level in the near future. As a result, Congress has allocated major health care reform efforts to the states. However, ERISA stands as a huge obstacle to state health care …

Disability Misappropriation, Ruth Colker

American University Law Review

This Article argues that disability misappropriation is a systemic problem that undermines movement toward disability justice. By disability misappropriation, this Article refers to the tendency of the political right to assert a false concern for disability issues in service of a political agenda that actually harms the disability community. This tactic has influenced the adverse treatment of disabled people in the educational, institutional, and reproductive arenas. From birth to death, it has often had an adverse influence on the lives of disabled people as they receive inadequate and coercive health care, poor education, and limited housing options. While federal law …

Table Of Contents

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Medicare Advantage? If You Say So. Fraud, Waste, And Abuse In Medicare Part C, John J. Locurto

Faculty Articles

Debates about health care often emphasize distributive justice. How should society allocate finite resources? Who will get access to them, who will not? Is the allocation fair? Who decides and by what standard? Answers to these questions rarely consider health care fraud, waste, and abuse. This is a material omission. Fraud alone costs the health care system billions of dollars annually, dissipating limited funds and degrading quality of care. This paper considers how fraud, waste, and abuse occur in Medicare Part C - better known as Medicare Advantage - an increasingly popular coverage option. Medicare Advantage experiences unique challenges that …

Section 1115 Waivers: Innovation Through Experimentation, Or Stagnation Through Routine?, Nicole Johnson

Emory Law Journal

The Medicaid program operates as a federal-state partnership, in which the states agree to meet certain federally mandated requirements in exchange for federal matching funds for program expenditures. These federal matching funds can be anywhere from 50–90% of health care expenses incurred through state Medicaid programs. As such, states have a substantial interest in continuing this partnership and ensuring that their state plans comply with federal requirements. There is a way, though, in which states can gain more freedom in building their individual state plans. Through section 1115 waivers, states can ask the Centers for Medicare and Medicaid Services (“CMS”) …

Why Money Is Well Spent On Time, Michael Ulrich

Faculty Scholarship

There are a few reasons why incentivizing clinicians to spend more time with patients can improve health outcomes. Doing so affords clinicians time to assess social determinants’ influences on their patients’ health experiences; offers opportunities to identify and respond to patients’ loneliness; and helps motivate patients’ trust in health care, strengthen patient-clinician relationships, and bolster patients’ adherence to clinicians’ recommendations.

Worker Participation In A Time Of Covid: A Case Study Of Occupational Health And Safety Regulation In Ontario, Alan Hall, Eric Tucker

Articles & Book Chapters

This study examines worker voice in the development and implementation of safety plans or protocols for covid-19 prevention among hospital workers, long-term care workers, and education workers in the Canadian province of Ontario. Although Ontario occupational health and safety law and official public health policy appear to recognize the need for active consultation with workers and labour unions, there were limited – and in some cases no – efforts by employers to meaningfully involve workers, worker representatives (reps), or union officials in assessing covid-19 risks and planning protection and prevention measures. The political and legal efforts of workers and unions …

Healthcare Education Leaves The Hills: Frontier Nursing University's Move From Appalachia, Hannah Haksgaard

West Virginia Law Review

No abstract provided.

Statement From Columbia Law School’S Center For Gender And Sexuality Law On The Supreme Court Decision Overruling The Constitutional Right To Abortion, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

The Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization signals a major break with at least three generations of constitutional law. This opinion eliminates not only constitutional protections for abortion, but well-settled legal principles on which fundamental rights have rested for over 60 years. “Within a 24-hour period the Supreme Court ruled on the one hand that abortion rights are a local issue to be decided by each state independently, while on the other, states are barred from making local decisions about how to regulate guns,” said Katherine Franke, James L. Dohr Professor of Law and Director of …

Confidentiality, Warning And Aids: A Proposal To Protect Patients, Third Parties And Physicians

Touro Law Review

No abstract provided.

Aging, Health, Equity, And The Law: Foreword, Joan C. Foley

Touro Law Review

No abstract provided.

A Cure Of What Ails You: How Universal Healthcare Can Help Fix Our Tort System, David Pimentel

Articles

No abstract provided.

Immigration Reforms As Health Policy, Medha D. Makhlouf, Patrick J. Glen

Faculty Scholarly Works

The 2020 election, uniting control of the political branches in the Democratic party, opened up a realistic possibility of immigration reform. Reform of the immigration system is long overdue, but in pursuing such reform, Congress should cast a broad net and recognize the health policies embedded in immigration laws. Some immigration laws undermine health policies designed to improve individual and population health. For example, immigration inadmissibility and deportability laws that chill noncitizens from enrolling in health-promoting public benefits contribute to health inequities in immigrant communities that spill over into the broader population—a fact highlighted by the still-raging COVID-19 pandemic. Restrictions …

Healthcare Education Leaves The Hills: Frontier Nursing University’S Move From Appalachia, Hannah Haksgaard

Faculty Publications

Rural communities lack maternity and childbirth services, and access is getting worse. Despite the serious need for more rural-focused childbirth services, Frontier Nursing—the most famous rural-focused childbirth healthcare provider and educator—recently left the historic rural location it had called home since its inception nearly a century ago. Frontier Nursing, established in the Appalachian Mountains in 1925, initially provided nursing and midwifery care focused on the residents of Leslie County, Kentucky, and in 1939 established a school in Leslie County to train future rural nurse-midwives. Despite success over nearly 100 years deep in the remote and rural Appalachian foothills, Frontier Nursing …

Towards Racial Justice: The Role Of Medical-Legal Partnerships, Medha D. Makhlouf

Faculty Scholarly Works

Medical-legal partnerships (MLPs) integrate knowledge and practices from law and health care in pursuit of health equity. However, the MLP movement has not reached its full potential to address racial health inequities, in part because its original framing was not explicitly race conscious. This article aims to stimulate discussion of the role of MLPs in racial justice. It calls for MLPs to name racism as a social determinant of health and to examine how racism may operate in the field. This work sets the stage for the next step: operationalizing racial justice in the MLP model, research, and practice.