Health Law and Policy Commons^™

American Midwifery Litigation And State Legislative Preferences For Physician-Controlled Childbirth, Stacey A. Tovino

Faculty Articles

No abstract provided.

School Voucher Programs: Has The Supreme Court Pulled Up The Gangplank To Establishment Clause Challenges., Cecil C. Kuhne Iii

St. Mary's Law Journal

The Establishment Clause is not violated when a program is neutral toward religion and provides assistance directly to a broad class of citizens, who in turn voluntarily direct the aid to religious schools. A program containing these features permits government aid to reach religious institutions only thru the deliberate choices of individuals. Any incidental advancement or endorsement of religion is attributable to the individual recipient—not the government, which simply acts as a disburser. In Zelman v. Simmons-Harris, the Supreme Court reiterated this rationale from a twenty-year line of cases. Zelman is a death knell for Establishment Clause challenges to carefully …

Licensing Health Care Professionals: Has The United States Outlived The Need For Medical Licensure?, Gregory Dolin

All Faculty Scholarship

With an expanding market for what is now known as "complimentary and alternative" medicine (CAM), states are increasingly facing the issue of who can and who should be allowed to practice medicine. Of necessity, this question also concerns whom patients may see to treat their ailments.

This paper will argue that the struggle to define who is and who is not licensed to practice medicine is rather fruitless and will always leave patients with less choice than they desire. Part II will review the history of licensure in the United States. Parts III and IV will focus on benefits and …

Reach Out And Touch Someone: Cellular Phones Health, Safety And Reasonable Regulation, Lana Mobydeen

Journal of Law and Health

In a nine-part discussion, this note addresses issues concerning the health and safety risks associated with the use of cellular phones, which will also include a section that focuses on the advantages of using cellular phones. It is essential to maintain cellular phones and their utility in our lifestyle for personal safety and security. Health and safety problems with cellular phones must be addressed by the least restrictive regulation possible in order to ensure the continued use and the many benefits that the cellular phone industry presents to our society.

Regulation Fd: Sec Reestablishes Enforcement Capabilities Over Selective Disclosure., John P. Jennings

St. Mary's Law Journal

This Recent Development focuses on the potential effects Regulation Fair Disclosure (FD) will have on the participants in the American capital market and on the stock markets themselves. Congress and the Securities Exchange Commission (SEC) seek to achieve confidence in the integrity and fairness of the American stock market and protection of investors from fraud by promoting equal opportunities for investors. In order to maintain a competitive edge, vis-à-vis its foreign counterparts, the United States must continually refine its financial systems to maximize fairness and integrity. This Recent Development focuses on selective disclosure—allowing a limited segment of investors access to …

Responsible Regulation: A Sensible Cost-Benefit, Risk Versus Risk Approach To Federal Health And Safety Regulation, Steve Calandrillo

Articles

Federal health and safety regulations have saved or improved the lives of thousands of Americans, but protecting our citizens from risk entails significant costs. In a world of limited resources, we must spend our regulatory dollars responsibly in order to do the most we can with the money we have. Given the infeasibility of creating a risk-free society, this paper argues that a sensible cost-benefit, risk versus risk approach be taken in the design of U.S. regulatory oversight policy. The goal should always be to further the best interests of the nation, rather than to satisfy the narrow agenda of …

Lindsey V. Tacoma-Pierce County Health Department: Cipollone Revisited, Billboards, State Law Tort Damages Actions, Federal Preemption And The Federal Cigarette Labeling And Advertising Act, Harold C. Reeder

Seattle University Law Review

The Article evaluates Lindsey and other recent cases dealing with local regulations restricting tobacco advertising; it also examines their respective preemption analyses, suggesting that the use of the FCLAA's preemption provision against such regulations is unwarranted. The article argues that in Lindsey, the Ninth Circuit misconstrued the Supreme Court's discussion of the preemptive scope of the FCLAA by failing to read it in the proper contex and that the FCLAA's preemption provision was not intended to prevent the particular types of regulations involved in Lindsey and these other cases. It argues that the preemption provision was only meant to …

Telemedicine: Rx For The Future Of Health Care, Susan E. Volkert

Michigan Telecommunications & Technology Law Review

Quite simply, telemedicine symbolizes and catalyzes the clash between the reality of our legal and political approach to health care and the American dream of bringing health care to all patients. Telemedicine, like our health care delivery systems, is regulated by many layers of government. Unlike other issues, telemedicine cuts through and challenges the traditional controls of access and cost. As such, telemedicine is a microcosm of our health care delivery system and a lens through which one may analyze the obstacles to access in the current system. This article examines these issues, proposes that telemedicine's goal should be to …

Increasing Consumer Power In The Grievance And Appeal Process For Medicare Hmo Enrollees, Kenneth J. Pippin

University of Michigan Journal of Law Reform

Federal law requires that Health Maintenance Organizations (HMOs) and Managed Care Organizations (MCOs) provide Medicare beneficiaries with specific grievance and appeal rights for challenging adverse decisions of these organizations. The Health Care Financing Administration (HCFA) is charged with enforcing these regulations. Currently, however, HCFA contracts with HMOs, allowing them to enroll Medicare beneficiaries despite the fact that many of the statutory and regulatory requirements are ignored by the Medicare HMOs. This is problematic because the elderly Medicare population may not be able to independently and adequately challenge the HMO's denial of care or reimbursement. Because HCFA has been reluctant and …

Managed Care Regulation: Can We Learn From Others? The Chilean Experience, Timothy Stoltzfus Jost

University of Michigan Journal of Law Reform

Because the United States relies on private insurance for financing health care to a much greater degree than do other nations, and because managed care as a form of private insurance is further developed in the United States than elsewhere, it is arguable that we have little to learn from other nations about managed care regulation. This Article tests this hypothesis with respect to Chile, a country where private insurance is widespread and managed care is emerging. It concludes that by studying the experience of other nations we might gain a larger perspective on the context of our concerns in …

Accountable Managed Care: Should We Be Careful What We Wish For?, David A. Hyman

University of Michigan Journal of Law Reform

Managed care is exceedingly unpopular of late. Many people believe that the problem is managed care organizations (MCOs) are unaccountable. Indeed, for many people, the creation of tort-based accountability for MCOs is the touchstone for assessing legislative "reform." The case for tort-based accountability is actually quite complex, and the merits of tort-based accountability cannot be resolved with sound bites and bad anecdotes. Tort-based accountability has both costs and benefits, and little attention has been paid to the extent to which alternatives to tort-based accountability are found in existing institutional arrangements.

This Article systematically considers the extent to which alternatives to …

Clearing The Way For An Effective Federal-State Partnership In Health Reform, Eleanor D. Kinney

University of Michigan Journal of Law Reform

At century's end, states have assumed a very different role in the design, implementation, and operation of health service programs than they did twenty-five years ago. In the current volatile political atmosphere particularly at the federal level, states have taken up the mantle of healthcare reform in the final years of the 1990s. Yet there remain problems and difficulties with the current federal-state relationship in health reform. The critical question is whether states can successfully accomplish genuine reform given its politically charged, complex and costly nature. This question takes on particular significance for the most important reform-expanding coverage to the …

Regulating Doctors, Carl E. Schneider

Articles

Alawyer today can hardly speak to a doctor--or even be treated by one-without being assailed by lawyer jokes. These jokes go well beyond good-humored badinage and pass the line into venom and gall. They reflect, I think, the sense many doctors today have that they are embattled and endangered, cruelly subject to pervasive and perverse controls. This is puzzling, almost to the point of mystery. Doctors have long been the American profession with the greatest social prestige, the greatest wealth, and the greatest control over its work. Indeed, what other profession has been as all-conquering? One may need to go …

Corralling Kevorkian: Regulating Physician-Assisted Suicide In America, Steve Calandrillo

Articles

This article examines the evolution and history of the development of the right-to-die in America, the ethical considerations surrounding physician-assisted suicide (P.A.S.), and the dangers posed by the rise of managed care. I then explore and analyze efforts to legalize and regulate assisted suicide (Netherlands, Oregon, The Model State Act), and suggest the criteria I believe are essential to include in any P.A.S. regulatory scheme.

How Many Libertarians Does It Take To Fix The Health Care System?, Thomas L. Greaney

Michigan Law Review

There's an old joke about a Southern preacher who is asked whether he believes in the sacrament of infant baptism. "Believe in it?" thunders the preacher. "Hell, son, I've seen it done." In Mortal Peril: Our Inalienable Right to Health Care?, Richard Epstein gives testimony that markets should be left unfettered to distribute health care services. Arguing from first principles, he aims to persuade that the messy, confusing business of health care is best dealt with by simple legal rules: permit free contracting, countenance no government-induced subsidies, recognize no positive rights. One leaves this particular revival tent feeling he …

Teen Prostitution In Japan: Regulation Of Telephone Clubs, Andrew D. Morrison

Vanderbilt Journal of Transnational Law

The history of prostitution in Japan may be traced to the eighth century. Originally, prostitutes carried on their trade individually and independently. Around the thirteenth century, however, the nature of prostitution changed, as prostitutes formed small enterprises located in red-light districts. By the seventeenth century, red-light districts existed throughout Japan.

In 1900, the Japanese government, realizing the widespread proliferation of the prostitution industry, passed the Regulation for Control of Prostitutes. The law regulated prostitution nationwide by requiring prostitutes to register with local government authorities and to undergo regular health inspections. This system continued until the end of World War Two, …

Regulation Of Research On The Decisionally Impaired: History And Gaps In The Current Regulatory System, Jonathan D. Moreno

Journal of Health Care Law and Policy

No abstract provided.

Regulating Research With Vulnerable Populations: Litigation Gone Awry, John M. Oldham, Stephan Haimowitz, Susan J. Delano

Journal of Health Care Law and Policy

No abstract provided.

In Search Of Universality, Equity, Comprehensivenessand Competition: Health Care Reform And Managedcompetition In Israel, Carmel Shalev, David Chinitz

Dalhousie Law Journal

Israel's ongoing health reform provides lessons regarding attempts to combine universal coverage under national health insurance with a version of managed competition. Based on principles of 'justice, equality and mutual aid," Israel's National Health Insurance Law, 1994 guarantees access to a broad basket of basic services to be provided by four competing sick funds, and the availability of resources adequate to finance the basket. The new rights of citizens to universal coverage and to move freely among sick funds constituted a major policy breakthrough. However, successive amendments to the Law reflect continuing controversy over the amount of resources required to …

Fda Approved? A Critique Of The Artificial Insemination Industry In The United States, Karen M. Ginsberg

University of Michigan Journal of Law Reform

Artificial insemination by donor is becoming an increasingly popular means to achieving parenthood. While the majority of couples use artificial insemination to overcome fertility problems, many recipients use artificial insemination to avoid passing a genetic disease to their children. However, case studies reveal the inherent dangers of artificial insemination, namely the lack of proper screening methods to avoid passing genetic diseases to children born by artificial insemination. State-by-state regulation, federal guidelines, and private adjudication have all proven to be inadequate methods of regulating the artificial insemination industry. Ginsberg proposes federal regulation as the only means of achieving a safe artificial …

Democratizing Hmo Regulation To Enforce The "Rule Of Rescue", Kent G. Rutter

University of Michigan Journal of Law Reform

Despite heightened public concern about HMOs, misguided regulatory measures have not guaranteed HMO patients access to the treatment options many consider vital. This Note recommends four changes to the current regulatory system that would preserve HMOs' ability to control health care costs while allowing patients and doctors, rather than lawmakers or HMO administrators, to set health care priorities.

Regulating Viatical Settlements: Is The Invisible Hand Picking The Pockets Of The Terminally Ill?, Russell J. Herron

University of Michigan Journal of Law Reform

The newly emerging viatical settlement industry has attracted considerable attention from both insurance regulators and advocates for the terminally ill. In a viatical settlement, a terminally ill person names a viatical settlement company as beneficiary under his life insurance policy in exchange for an immediate lump-sum cash payment of less than face value of the policy. To date, viatical settlement payments to people with AIDS (PWAs) have been disturbingly low as a percentage of the face value of PWA policies. This Note examines the few enacted viatical settlement regulations and the National Association of Insurance Commissioners' model regulations as they …

Toward A Sustainable Maine : The Politics, Economics, And Ethics Of Sustainability, Richard Barringer (Ed.)

Maine Collection

Toward A Sustainable Maine : The Politics, Economics, and Ethics of Sustainability

Richard Barringer, editor, Professor Emeritus at the University of Southern Maine

Edmund S. Muskie Institute of Public Affairs, University of Southern Maine, Portland, Maine, 1993.

The proceedings of a conference presented at Bowdoin College on March 19 and 20, 1993, by the Edmund S. Muskie Institute of Public Affairs at the University of Southern Maine, and by the Natural Resources Council of Maine. Ellen Baum, conference organizer.

Contents; Foreword by Richard Barringer / Welcome by Everett Carson / Global, Canadian, and Maine Perspectives / Sustaining Our Natural and …

Cumulative Trauma Disorders: Osha's General Duty Clause And The Need For An Ergonomics Standard, David J. Kolesar

Michigan Law Review

This Note argues that neither the Act nor its underlying policies supports OSHA's current use of the general duty clause to prosecute alleged ergonomics violations and that the only way to protect workers from CTDs fairly and effectively is through the promulgation of an ergonomics standard. Part I examines the purposes of the Act, as well as the function of the Act's general duty clause. Part II analyzes the four requirements of the general duty clause in the context of CTDs and finds that the clause does not apply to CTDs. Part III argues that the Act's intended policies support …

In The Regulation Of Manmade Carcinogens, If Feasibility Analysis Is The Answer, What Is The Question?, Christopher H. Schroeder

Michigan Law Review

A Review of Environmentally Induced Cancer and the Law by Frank B. Cross

The Stagnation Of Texas Ground Water Law: A Political V. Environmental Stalemate., Karen H. Norris

St. Mary's Law Journal

The rapidly increasing Texas population coupled with the scarcity of water resources has created an urgent need for regulation of ground water pumpage. The extraction of ground water in Texas remains largely unregulated. Texas landowners, by virtue of their surface ownership, have property rights in all underlying ground water. As such, Texas landowners have the right to unlimited pumpage of the ground water beneath their land. Texas landowners have jealously guarded this right at the expense of our environment and future water resources. The Texas legislature created conservative underground water districts to help preserve water resources. However, the limited scope …

Of Foxes And Hen Houses: Licensing And The Health Professions, Michigan Law Review

Michigan Law Review

A Review of Of Foxes and Hen Houses: Licensing and the Health Professions by Stanley J. Gross

Regulation Through The Looking Glass: Hospitals, Blue Cross, And Certificate-Of-Need, Sallyanne Payton, Rhoda M. Powsner

Michigan Law Review

A clear focus on the commitment of the public health and hospital establishments to the large teaching hospital and their belief in rationalizing the health care system through community-based planning allows us to understand the ideas and institutions that have produced our present system of hospital regulation. It can also help us to understand the structure and behavior of the hospital industry and can illuminate current controversies over health care policy.

What follows is a narrative account of the development of regional planning and certificate-of-need legislation. As part of that story, we trace the evolution of the Blue Cross, explain …

Michigan's Nursing Home Reform Law, John D. Croll

University of Michigan Journal of Law Reform

This article examines Michigan's new nursing home reform law, which has been hailed as "landmark legislation" and as a model for the entire country. Part I examines the past failures of nursing home regulation and the need for reform. Part II analyzes the law's key provisions. Part III examines the weaknesses of certain enforcement measures. The article proposes the following improvements: (1) extension of the law's protection to residents of homes for the aged; (2) greater access to patients by approved organizations; (3) adoption of nurse-patient ratios; (4) improvement of inspection procedures; and (5) allowance for patients or their representatives …

Regulation Of The Medical Profession In Nova Scotia, Duncan Beveridge

Dalhousie Law Journal

Consumerism has experienced fantastic growth over the last decade and as a result its influence is felt in almost every decision making process. Consumer groups have operated as potent pressure groups and have encouraged the reform of laws to protect the "little man".' Federal and provincial legislative bodies have reacted and attempted to protect the consuming public from unfair or unconscionable business practices and established agencies to do research and co-ordinate consumer concerns. Until recently, consumers have fixed their attention on business and have largely ignored services, particularly those provided by self-governing professions such as the medical profession. The historical …