Health Law and Policy Commons^™

Privatized Medicaid: An Incentivized System Of Constant Denials, Hannah R. Courtney

West Virginia Law Review

The Medicaid Program was created to fill the gap of what private insurance would not do—provide vulnerable populations with meaningful access to quality health care—but now it has been thrown into the pitfalls of private insurance. Over the last two decades, there has been a significant rise in states contracting with private Managed Care Organizations (“MCOs”) to provide services to a percentage of their Medicaid enrollees. MCOs now make decisions each year to approve or deny millions of requests for Medicaid coverage of health care services using prior authorization. Until now, the criticisms and fears surrounding privatized Medicaid have largely …

Sexual And Reproductive Health & Rights: Advances And Setbacks, Aziza Ahmed, Alicia Ely Yamin, Sofia Gruskin

Faculty Scholarship

This article first describes shifts in human rights law that have led to improvements in the realization of sexual and reproductive health and rights (SRHR) over the last decade. The article does so, however, with careful attention to the structural factors beyond formal legal mechanisms that may undermine the ability of governments, even with the best of intentions, to fully develop the necessary robust health and justice systems. Second, this article considers two additional factors: the political economy factors that enable or limit the ability of States to realize SRHR, as well as the growing evidence base that supports positive …

Assisted Outpatient Treatment: A State-By-State Comparative Review, E. Lea Johnston, Autumn Klein

UF Law Faculty Publications

Assisted outpatient treatment, otherwise known as preventive outpatient commitment, is rapidly expanding across the United States, aiming to address mental health needs and reduce homelessness, hospital costs, and community violence. Since 2019, fifteen preventive outpatient commitment statutes have been passed or expanded. These statutes, which authorize courts to mandate community treatment for nondangerous individuals with mental illnesses, have evaded close scrutiny, rest on misconceptions, and raise significant constitutional concerns. An analysis of legislative debates, court opinions, and scholarship reveals a fundamental misunderstanding about the prevalence of these laws, which contributes to their speedy passage. Additionally, no analysis exists of these …

Fetal Personhood And The Judicial Erosion Of Women's Rights Following Dobbs, Brendan Williams

University of the District of Columbia Law Review

In Dobbs v. Jackson Women's Health Organization, the U.S. Supreme Court overturned its prior precedents recognizing a constitutional right to abortion, a recognition that began nearly a half-century before with its decision in Roe vs. Wade. In its granting certiorari in a case involving a Mississippi law restricting abortion, the New York Times reported that the Court majority took advantage of the death of Justice Ruth Bader Ginsburg by allowing “Mississippi to perform a baitand-switch, widening what had been a narrower attempt to restrict abortion while she was alive into a full assault on Roe — the kind …

Science And Politics In Public Health Regulation, Samuel R. Bagenstos

University of Michigan Journal of Law Reform

Much of American public discourse takes for granted a distinction between science and politics. People describe and understand that distinction in contradictory ways, however. And those contradictions themselves underscore how closely entwined science and politics actually are.

Beyond Politics: Rethinking The Conversation On Gender-Affirming Care For Youth, Olivia Sanders

Mercer Law Review

According to a study conducted in June of 2022 by the Williams Institute School of Law, nearly 300,000 youth members in the United States identify as transgender. According to these calculations, this statistic indicates that “[t]he number of young people who identify as transgender has nearly doubled in recent years.” Gender‑affirming healthcare is usually administered to treat gender dysphoria, which is defined as “a state of distress or discomfort that may be experienced because a person’s gender identity differs from that which is physically and/or socially attributed to their sex assigned at birth.” A 2021 study conducted by Reuters exposed …

The Harms Of Expanding Physician-Assisted Suicide, Katherine Drabiak

Health Matrix: The Journal of Law-Medicine

Currently, nine states and the District of Columbia have passed laws in the U.S. to legalize and regulate the practice of physicianassisted suicide (“PAS”). Proponents initially garnered public support by portraying PAS as distinct from suicide, framing it as a rare mechanism for patients with terminal illness to achieve a peaceful death, enhance autonomy, and reduce suffering. Original state laws contained numerous eligibility requirements designed as safeguards to provide stringent limits. However, over the past few years proponents of PAS have systematically worked to expand PAS and erase these limits by increasing eligible providers, reducing waiting periods, and eliminating residency …

Medical Necessity And Prior Authorization: The Unregulated Power Of Insurers, Virginia Lefever

Health Matrix: The Journal of Law-Medicine

The absence of a uniform federal definition of “medical necessity” in employer-sponsored health plans has allowed insurers to create their own coverage standards, often resulting in inconsistent and opaque determinations that limit access to essential care. This Note argues that ERISA’s silence on medical necessity grants insurers excessive discretion, enabling restrictive prior authorization policies that disadvantage patients and providers alike. By analyzing judicial interpretations, regulatory gaps, and the disparate standards imposed by insurers, this Note makes the case for a federally mandated definition of medical necessity applicable to all employer-sponsored plans. A standardized definition would promote transparency, reduce litigation, and …

“The Craze For Legal Proceedings”: Another Look At Schloendorff V. New York Hospital, Paul A. Lombardo

Health Matrix: The Journal of Law-Medicine

In 1914, Judge Benjamin Cardozo wrote an appellate decision in the case of Schloendorff v. Society of the New York Hospital containing the assertion, “Every human being of adult years and sound mind has a right to determine what shall be done to his own body.” This quotation later became a touchstone for discussions of the principle of informed consent. Previous scholarship has questioned the use of Schloendorff as a byword of patient self-determination, but more recently discovered records suggest yet another way to understand the famous case. Material from the archive of the New York Hospital—where Mary Schloendorff’s surgery …

For Patients’ Sake! Can We Get Some Clarity? Defending The Privilege And Confidentiality Of Patient Safety Work Product, Alyssa Boob

Dickinson Law Review (2017-Present)

In 2000, the Institute of Medicine published To Err is Human: Building a Safe Health System, a report revealing the shocking rate of medical errors plaguing the United States healthcare system. Faced with the horrifying consequences of these medical mishaps, Congress sprang into action. It enacted the Patient Safety and Quality Improvement Act of 2005 (PSQIA), which authorized the creation of Patient Safety Organizations (PSOs). Intended to increase transparency and communication amongst healthcare providers, PSOs collect provider medical error data—termed Patient Safety Work Product (PSWP)—and suggest areas of improvement.

The Act grants privilege and confidentiality protections to any information …

Dirty Water, Breanna Booker, Michael S. Sinha

William & Mary Environmental Law and Policy Review

There are tens of thousands of unregulated industrial substances manufactured and used in the United States. This Article focuses on three specific to plastic and its manufacturing process: microplastics, phthalates, and BPAs. These substances have been attributed to many known health harms and potentially more that have yet to be identified. The research is still nascent and continues to evolve, but what we do know is who is creating the problem. From big oil companies and plastics manufacturers, to creators of textiles and tires, to investors who all contribute to the problem, how can we hold these accountable for the …

Frontmatter, Case Western Reserve University School Of Law

Health Matrix: The Journal of Law-Medicine

No abstract provided.

Making Super Soldiers: Command Authority And The Implications Of “Getting To Yes”, Christopher J. Lin

Health Matrix: The Journal of Law-Medicine

The capability and will to enhance soldiers’ minds and bodies for warfare have existed throughout the centuries and across nations, from Ancient Greek hoplites partaking in wine before battle to calm nerves, to American servicemembers consuming amphetamines to remain awake during long-range reconnaissance missions in the Vietnam War. With advancements in biomedical technology, certain types of enhancements entail modifications with varying degrees of permanence to enhance battlefield performance. This Article explores the historical context and contemporary developments of biomedical enhancements, with a focus on the longstanding deference to military command authority regarding issues of individual autonomy. By examining the impacts …

At What Cost: Medicare’S Cost- Saving Measures In Skilled Nursing Facilities And Their Impact On Vulnerable Populations, Julia Mcdermott

Health Matrix: The Journal of Law-Medicine

As the highest spender of health care in the world, the United States continues to look for ways to reduce its spending. As the main health insurance provider for the elderly and disabled, Medicare shares this mission. Unfortunately, some of Medicare’s cost-saving initiatives in one of its most critical care settings, Skilled Nursing Facilities, cause disproportionately negative impacts on vulnerable populations. This Note analyzes three of Medicare’s cost-saving measures in Skilled Nursing Facilities, namely value-based purchasing programs, the twenty-day limit on full coverage, and the practical matter provision. This Note highlights how these measures have a disparate negative effect on …

Sacrificing Financial Health For Physical Health: The Implications Of Medical Credit Cards, Emma Kerro

Health Matrix: The Journal of Law-Medicine

Rising healthcare costs have contributed to significant medical debt increases for Americans in recent years. One way patients are paying these charges is with a medical credit card. The increase in popularity of medical credit cards can, in part, be attributed to non-profit hospitals’ insufficient charity care offerings. Some hospitals are— themselves—offering healthcare financing products to patients rather than offering charity care. As a result, low income patients often become trapped in a cycle of medical debt. While patients may need help paying for their care, a predatory lending option should not be their first or only choice. Non-profit hospitals …

Issue 35 Cover, Case Western Reserve University School Of Law

Health Matrix: The Journal of Law-Medicine

No abstract provided.

Going Non-Par: What Are Your Options?; With Sidebar: One Dentist’S Experience With Going Non-Par, Alan Laing Dds, Mba, Greg Maxson Dds

The Journal of the Michigan Dental Association

The article discusses the considerations for dental practices contemplating dropping insurance participation (going non-par). It emphasizes the importance of analyzing practice objectives, patient demographics, competition, and financial policies before making this decision. The transition to non-par status can impact patient relationships and requires a strong financial and collection policy. Ultimately, the decision should be based on a thorough understanding of the practice and its goals.

The sidebar presents supplementary content and includes a call for MDA members to share their experiences with non-participation in insurance plans and features Dr. Greg Maxson's personal account of going non-par. Dr. Maxson emphasizes that …

Dentistry And The Law: Yes, Dentists (And The Mda) Are Subject To Antitrust Law, Daniel Schulte Jd

The Journal of the Michigan Dental Association

This legal article explains how antitrust laws apply to dentists and dental associations. It clarifies that violations occur when competitors agree to activities that unreasonably restrain competition. The article distinguishes between "per se" illegal activities (price-fixing, group boycotts, allocation of territories) and those evaluated under the "rule of reason." Specific examples of prohibited activities include agreements on fees, discount limitations, or refusals to participate with dental plans. Enforcement can come from the DOJ, FTC, state agencies, or private lawsuits, with penalties including imprisonment, fines, and treble damages.

J Mich Dent Assoc April 2025

The Journal of the Michigan Dental Association

Each month, The Journal of the Michigan Dental Association provides news, information, and features about Michigan dentistry to our state's oral health community and the MDA's 6,200+ members. It stands as the primary publication reaching Michigan dentists. The April issue marks the end of an era, as the MDA announced it would discontinue providing a print issue and focus on digital distribution.

This month’s issue includes a cover feature on going non-par, a feature article on pterygoid implant placement and restoration, candidate’s biographical statements, and information on a new membership benefit for health and well-being. Regular departments include the New …

Is There A Librarian In The House? Researching Federal And Virginia State Health Law, Andrew J. Christensen

Library Scholarship

Health law is a complex and diverse practice area, encompassing issues ranging from insurance law and patient privacy to medical malpractice and vaccine law. Researching health law thus entails a combination of primary and secondary resources, statutory and regulatory updates, and often a nuanced or multijurisdictional understanding of healthcare policy. For both career specialists and lawyers who are new to the field, finding accurate, current information on both federal and state-specific health laws is critical.

Luckily, the librarian is in. This guide highlights key resources and practical strategies for effectively researching federal and Virginia health law, tailored to legal practitioners …

Meat, The Future: The Role Of Regulators In The Lab-Grown Revolution, Joseph B. Davault, Michael S. Sinha

All Faculty Scholarship

The United States is one of the largest consumers of meat globally. The production of meat contributes substantially to climate change due to the levels of greenhouse gasses emitted and the amount of land, water, feed, and other natural resources required to raise animals used for meat. Traditional meat production is another major source for the emergence of zoonotic diseases and antimicrobial-resistant pathogens. Nevertheless, Americans consume more meat now than at any time in the nation’s history.

Advocates for policy change aimed at addressing the risks associated with meat production have typically focused on reducing meat consumption, alternatives to meat, …

Addressing Gaps In Access: Examining Language Barrier Accommodations In Medicaid Member Handbooks, 2015-2019, Sanskruti Patel

Senior Theses

Objective: This study examines the linguistic accessibility of Medicaid Managed Care Organization (MCO) handbooks from 2015 to 2019 by analyzing the instructions provided to access interpreter and written translation services. Trends were compared over time, considering state and plan-level factors that impact equitable healthcare access for Limited English Proficiency (LEP) enrollees.

Methods: A systematic search using manual efforts and FOIA requests located all publicly available Medicaid handbooks from 2015-2019 (N=657) across 39 states with comprehensive MCO plans. These handbooks were coded by independent reviewers to assess the study outcome variables. Random mixed-effects logistic and linear regression models were conducted to …

Kendra's Paradox: Redefining The Statutory Approach To Assisted Outpatient Psychiatric Treatment In New York, Matt Donelian

Cardozo Journal of Equal Rights & Social Justice

The note critically examines the limitations of Kendra's Law in New York, which provides Assisted Outpatient Treatment (AOT) for individuals with severe mental illnesses. While the law aims to balance public safety and individual rights, its strict eligibility criteria often prevent timely intervention, leading to worse outcomes for those in need. The note proposes reforming the law to prioritize clinical assessments over past actions, enabling earlier intervention while respecting individual rights. This reform would address the law's retroactive nature and promote a more proactive, compassionate approach to mental health care.

Protecting The Freedom Of Movement For All: A Proposal For Complete Street Policies That Prioritize The Needs Of Travelers With Idds And Autism In The Wake Of N.J. Bill S147, Olivia Handelman

Cardozo Journal of Equal Rights & Social Justice

The note examines the groundbreaking implications of New Jersey Bill S147, which mandates the New Jersey Department of Transportation (NJDOT) to develop complete street designs specifically addressing the needs of individuals with intellectual and developmental disabilities (IDD) and Autism Spectrum Disorder (autism). This legislation represents a significant shift in complete streets policies, which traditionally focus on physical accessibility but rarely prioritize non-physical disabilities. The note argues that NJDOT’s implementation of these designs must include tailored strategies, such as mobility education, staff training, and improved signage, to ensure independent and safe travel for this population. By addressing these needs, New Jersey …

A Masque Of Red Death: The Fda's "Individual Risk-Based" Blood Donor Final Guidance Report Is A Poorly Constructed Facade Covering Continued Animus Toward Queer Men, Gerald Dryden

Cardozo Journal of Equal Rights & Social Justice

The note argues that the FDA's blood donation guidelines discriminatorily target queer men, perpetuating stigma and failing to align with contemporary science. These guidelines, while aiming to protect blood recipients, are unconstitutional and not tailored to avoid discrimination, thus requiring revision to reflect current scientific understanding and eliminate bias.

Innovative Mechanisms For Marketing Health Insurance: An Experimental Field Test (Results From Colorado), Wendy Netter Epstein, Christopher Robertson, David Yokum, Hansoo Ko, Kevin Wilson

Faculty Scholarship

We hypothesize that marketing messages using a generosity framing have the potential to draw healthy persons into the insurance pool, thereby improving access and health outcomes and lowering premiums, but without removing choice or requiring substantial government action. The dependent variable for our field experiment is whether or not recipients of the marketing campaigns enroll in health insurance via the participating exchanges or in Medicaid.

Study Of Laws And Regulations Related To The Management Of Florfenicol Detection Cases In Swine, Shinnawat Saengungsumalee

The Thai Journal of Pharmaceutical Sciences

Background: Florfenicol, an antibiotic permitted in veterinary medicine, currently lacks an established maximum residue limit (MRL) in meat products in Thailand, effectively mandating undetectable residue levels. In May 2024, Thailand Pesticide Alert Network reported florfenicol residues in swine, raising concerns about consumer safety, rational veterinary drug use, and the potential for antimicrobial resistance (AMR). Addressing these issues involves multiple laws, decrees, and regulations across various agencies. Objectives: To analyze laws and regulations managing florfenicol residue detection in swine. Materials and Methods: This documentary research examines relevant laws, regulations, and measures for florfenicol in livestock and compares Thailand’s regulations with those …

Law School News: Champions For Justice: Celebrating Alumni Leaders In Legal Advocacy And Social Impact 03-31-2025, Jane Govednik

Life of the Law School (1993- )

No abstract provided.

Separation Of Drug Scheduling Powers, Mason Marks

Scholarly Publications

Drug scheduling places substances believed to be harmful and addictive under strict federal control. In 1970, Congress enacted the Controlled Substances Act (CSA), which split drug scheduling authority between executive departments to leverage their specialized expertise. Today, the CSA grants the Department of Health and Human Services (HHS) authority over scientific aspects of drug scheduling and the Drug Enforcement Administration (DEA) jurisdiction over nonscientific, law-enforcement-related matters. However, since 1970, the separation of scheduling powers has collapsed, and law enforcement officials have assumed powers reserved for public health experts. Bureaucratic drift, where policies diverge from what lawmakers attempted to achieve, has …

Unveiling A Hidden Hazard: A Deep Dive Into Forever Chemicals And The Urgent Need For Solutions, Katie L. Uszakiewicz

Villanova Environmental Law Journal (1991 - )

No abstract provided.