Health Law and Policy Commons^™

Editor, Ethical Challenges In Discharge Planning: Stories From Patients, Elizabeth Pendo

All Faculty Scholarship

This symposium includes twelve personal narratives from patients and their caregivers who have navigated challenges in planning for discharge from the hospital and transition to care at home, a rehabilitation facility, long-term care facility, or hospice. Three commentaries on these narratives are also included, authored by experts and scholars in the fields of medicine, bioethics, and health policy with particular interest in vulnerable populations. The goal of this symposium is to call attention to the experiences of patients during transitions in care and to enrich discussions of ethical issues in discharge planning.

Covid-19 Employee Health Checks, Remote Work, And Disability Law, Elizabeth Pendo

All Faculty Scholarship

The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities, about 61 million individuals in the U.S. The law’s protections in the workplace are especially important during COVID-19, which has worsened pre-existing disparities experienced by people with disabilities. The ADA also applies to new strategies to reduce the risk of COVID-19 infection in the workplace. This Chapter will focus on two strategies that impact individuals with and without disabilities – employee health screening, testing and vaccination policies, and new or expanded remote work programs.

Intellectual Property As A Determinant Of Health, Ana Santos Rutschman

All Faculty Scholarship

Public health literature has long recognized the existence of determinants of health, a set of socio-economic conditions that affect health risks and health outcomes across the world. The World Health Organization defines these determinants as “forces and systems” consisting of “factors combin[ing] together to affect the health of individuals and communities.” Frameworks relying on determinants of health have been widely adopted by countries in the global South and North alike, as well as international institutional players, several of which are direct or indirect players in transnational intellectual property (IP) policymaking. Issues raised by the implementation of IP policies, however, are …

Vaccine Clinical Trials And Data Infrastructure, Ana Santos Rutschman

All Faculty Scholarship

We find ourselves at a momentous turn in the history of vaccines. The COVID-19 pandemic triggered a quasi-global vaccine race that not only compressed vaccine research and development (R&D) timelines, but also paved the way for the administration of a new type of vaccine technology – mRNA vaccines, which work in substantially different ways from the vaccines in use before the pandemic.

While the process of bringing emerging COVID-19 vaccines to market has taken place in an unusually short timeframe, it was largely predicated on the same scientific and regulatory processes that govern the development, approval and deployment of new …

The Functional Operation Of Workers’ Compensation Covid Presumptions, Michael C. Duff

All Faculty Scholarship

During 2020, a number of U.S. states implemented workers' compensation COVID-19 presumptions. This short informal paper defines and explains legal presumptions generally and then discusses the workers' compensation presumptions. The paper contends that at this juncture it is not clear whether states intended to enact "Thayer-Wigmore" or "Morgan" presumptions; but if they operate as Thayer-Wigmore presumptions they will not do workers' compensation claimants much good in the context of non-jury proceedings presided over by administrative law judges.

The Big Data Regulator, Rebooted: Why And How The Fda Can And Should Disclose Confidential Data On Prescription Drugs And Vaccines, Christopher J. Morten, Amy Kapczynski

Faculty Scholarship

Medicines and vaccines are complex products, and it is often extraordinarily difficult to know whether they help or hurt. The Food and Drug Administration (FDA) holds an enormous reservoir of data that sheds light on that precise question, yet currently releases only a trickle to researchers, doctors, and patients. Recent examples show that data secrecy can be deadly, and existing laws such as the Freedom of Information Act (FOIA) cannot solve the problem. We present here a wealth of new evidence about the urgency of the problem and argue that the FDA must “reboot” its rules to proactively disclose all …

Extending Postpartum Medicaid: State And Federal Policy Options During And After Covid-19, Jamie R. Daw, Emily Eckert, Heidi Allen, Kristen Underhill

Faculty Scholarship

The United States is facing a maternal health crisis with rising rates of maternal mortality and morbidity and stark disparities in maternal outcomes by race and socioeconomic status. Among the efforts to address this issue, one policy proposal is gaining particular traction: extending the period of Medicaid eligibility for pregnant women beyond 60 days after childbirth. The authors examine the legislative and regulatory pathways most readily available for extending postpartum Medicaid, including their relative political, economic, and public health trade-offs. They also review the state and federal policy activity to date and discuss the impact of the COVID-19 pandemic on …

1 Step Forward 2 Steps Back: The Transgender Individual Right To Access Optimal Health Care, Alexandre Rotondo-Medina

Journal of Race, Gender, and Ethnicity

No abstract provided.

Public Health Originalism And The First Amendment, Claudia E. Haupt, Wendy E. Parmet

Washington and Lee Law Review

Current First Amendment doctrine has set public health regulation and protections for commercial speech on a collision course. This Article examines the permissibility of compelled public health and safety warnings after the Supreme Court’s decision in National Institute of Family & Life Advocates v. Becerra (NIFLA) through the lens of a concurrence to the Ninth Circuit’s en banc decision in American Beverage Ass’n v. City & County of San Francisco (American Beverage II) suggesting that only health and safety warnings dating back to 1791 are presumptively constitutional under the First Amendment.

Rejecting this form of “public health originalism,” this Article …

Legal And Medical Issues Of Covid-19, Case Western Reserve University School Of Law, Law-Medicine Center

Case Law-Med

• Making headlines
• Center co-director publishes on artificial intelligence and discrimination
• Center co-director releases new edition of law and genetics textbook
• Adjunct professor earns top health law award
• Faculty members’ paper published in New England Journal of Medicine, research featured at conference an in forthcoming book
• Impactful externship
• Growing demand leads to new master’s, certificate program in compliance
• Paradoxes of the pandemic: CWRU law faculty help shape conversations and drive change in an uncertain world
• Alumni profile: Inside Weinberger’s passion for trying to right a wrong
• A look back at our 2020-21 events
• Faculty briefs: Publications by our health law faculty …

Covid-19 And The Hipaa Privacy Rule: Asked And Answered, Stacey A. Tovino

Faculty Articles

The severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), the virus that causes coronavirus disease 2019 (COVID-19), raises important and vexing privacy and security issues. Public health officials, law and policy makers, and members of the general public disagree, for example, regarding the amount and type of individually identifiable health data that should be collected, used, and disclosed for public health surveillance, public health investigation, and public health intervention. Stakeholders also diverge in their opinions regarding the sufficiency of federal and state data privacy and security laws. Some stakeholders believe that current statutes and regulations are sufficient to protect individually identifiable …

Race, Risk, And Personal Responsibility In The Response To Covid-19, Aziza Ahmed, Jason Jackson

Faculty Scholarship

The COVID-19 crisis has tragically revealed the depth of racial inequities in the United States. This Piece argues that the disproportion­ate impact of the pandemic on racial minorities is a symptom of a failing approach to public health, one that privileges individual behaviors over the structural conditions that generate vulnerability and inequitable health outcomes. Despite clear racial disparities in illness and deaths, the neoliberal ideology of personal responsibility shifts the onus for mitigation of risk away from the social and legal determinants of health and onto the individual. To understand how and why these disparate racial outcomes arise, this Piece …

Mistakes Were Made: Applying Lessons Learned From The Tobacco Master Settlement Agreement To The Opioid Settlement Agreement, Elizabeth Orrick

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

The Next Surges Are Here: What Can American Governments Lawfully Do In Response To The Ongoing Covid-19 Pandemic?, Jeff Thaler

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Redefining Healthcare To Address Racial Health Disparities & Inequities, Abdur Rahman Amin

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Reforming Sexual Health Education In Minnesota Schools: An Evidence-Based Approach, Antonia Kurtz

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Bad Apples Or A Rotten Tree: Ameliorating The Double Pandemic Of Covid-19 And Racial Economic Inequality, Nathalie Martin

Faculty Scholarship

Black Lives Matter signs pepper our rural, middle class neighborhood. The lawn signs raise a fundamental question: if Black Lives Matter, what will it take to reverse the longstanding trend that has left many dead and so many others, perhaps all others, suffering? What will it take to create some semblance of equality and equity across racial lines in America?

Part I of this essay discusses race and Covid 19. It reviews and updates statistics on Covid deaths and race, and discusses some of the reasons for the racial disparities in Covid deaths. Part II briefly reviews the stratification of …

Substance Use Disorder Discrimination And The Cares Act: Using Disability Law To Inform Part 2 Rulemaking, Kelly K. Dineen, Elizabeth Pendo

Articles

Substance use disorder (SUD) is a chronic health condition—like people with other chronic health conditions, people with SUDs experience periods of remission and periods of exacerbation or recurrence. Unlike people with most other chronic conditions, people with SUDs may be more likely to garner law enforcement attention than medical attention during a recurrence. They are also chronically disadvantaged by pervasive social stigma, discrimination, and structural inequities. The COVID-19 pandemic has had devastating consequences for people with SUDs, who are at higher risk for both contracting the SARS-CoV-19 virus and experiencing poorer outcomes. Meanwhile, there are early indications that pandemic conditions …

Medical Violence, Obstetric Racism, And The Limits Of Informed Consent For Black Women, Colleen Campbell

Michigan Journal of Race and Law

This Essay critically examines how medicine actively engages in the reproductive subordination of Black women. In obstetrics, particularly, Black women must contend with both gender and race subordination. Early American gynecology treated Black women as expendable clinical material for its institutional needs. This medical violence was animated by biological racism and the legal and economic exigencies of the antebellum era. Medical racism continues to animate Black women’s navigation of and their dehumanization within obstetrics. Today, the racial disparities in cesarean sections illustrate that Black women are simultaneously overmedicalized and medically neglected—an extension of historical medical practices rooted in the logic …

Ending The War On People With Substance Use Disorders In Health Care, Kelly K. Dineen, Elizabeth Pendo

All Faculty Scholarship

Earp et al. (2021) provide a robust justification for the decriminalization of drugs based on the systemic racism that fuels the “war on drugs” and the ongoing harms of drug policies to individuals. The authors’ call for decriminalization is a necessary but insufficient step in addressing the entrenched structural, institutional, and individual discrimination that leads to the inequitable and unjust treatment of people with substance use disorder (PWSUD). Nothing short of robust enforcement of existing legal protections and sweeping legal reforms in the regulation of addiction treatment, controlled substances, health care finance, and civil rights law will be adequate to …