Health Law and Policy Commons^™

Seeking Genomic Knowledge: The Case For Clinical Restraint, Ellen Wright Clayton, Wylie Burke, Susan Brown Trinidad

Vanderbilt Law School Faculty Publications

Genome sequencing technology provides new and promising tests for clinical practice, including whole genome sequencing, which measures an individual's complete DNA sequence, and whole exome sequencing, which measures the DNA for all genes coding for proteins. These technologies make it possible to test for multiple genes in a single test, which increases the efficiency of genetic testing. However, they can also produce large amounts of information that cannot be interpreted or is of limited clinical utility. This additional information could be distracting for patients and clinicians, and contribute to unnecessary healthcare costs. The potential for genomic sequencing to improve care …

Recommendations For Returning Genomic Incidental Findings? We Need To Talk!, Ellen Wright Clayton, Wylie Burke, Armand H. Matheny Antommaria, Et Al.

Vanderbilt Law School Faculty Publications

The American College of Medical Genetics and Genomics recently issued recommendations for reporting incidental findings from clinical whole-genome sequencing and whole-exome sequencing. The recommendations call for evaluating a specific set of genes as part of all whole-genome sequencing/whole-exome sequencing and reporting all pathogenic variants irrespective of patient age. The genes are associated with highly penetrant disorders for which treatment or prevention is available. The effort to generate a list of genes with actionable findings is commendable, but the recommendations raise several concerns. They constitute a call for opportunistic screening, through intentional effort to identify pathogenic variants in specified genes unrelated …

Finding A Positive Right To Healthcare, Nicole Huberfeld

Law Faculty Popular Media

In this blog post, Professor Nicole Huberfeld provides a review of Edward Rubin's article The Affordable Care Act, The Constitutional Meaning of Statutes, and the Emerging Doctrine of Positive Constitutional Rights, 53 Wm. & Mary L. Rev. 1639 (2012).

An Analysis Of New York State’S Flawed Recovery Scheme In Prenatal Malpractice Actions: Why A Claim Of Nied Should Be Available To Plaintiffs, Amanda Campo

Pace Law Review

Prior to 2006 mothers could not bring a wrongful death action on behalf of their stillborn child, nor could they bring any personal cause of action, absent a physical injury independent from the unsuccessful birth itself. In 2006, the New York Court of Appeals attempted to fill this gap in the case of Broadnax v. Gonzalez. This Note will analyze whether Broadnax successfully filled this recovery gap. Parts II, III, and IV will discuss the history of a mother’s failed attempts to gain recovery for the death of her stillborn child. Part V will discuss Broadnax. I will argue that …

Adjudicating Sex Crimes As Mental Disease, Melissa Hamilton

Pace Law Review

The psychiatric diseases of the paraphilias are now entrenched in the law in decisions concerning culpability, desert, and risk. Though, as the foregoing cases suggest, it is a tough balancing act, considering the existence of psychiatric illness suggests less responsibility, while at the same time implying a greater risk of future dangerousness. To better navigate this conundrum, the law has drawn on the psychiatric sciences. Part II of this Article outlines a basic need for law and science to serve each other even though they may not share objectives. With respect to the advent of new laws to control sex …

Medicare Advantage Update: Benefits, Enrollment, And Payments After The Aca, Kathryn Linehan

National Health Policy Forum

In 2012, the Medicare program paid private health plans $136 billion to cover about 13 million beneficiaries who received Part A and B benefits through the Medicare Advantage (MA) program rather than traditional fee-for-service (FFS) Medicare. Private plans have been a part of the program since the 1970s. Debate about the policy goals—Should they cost less per beneficiary than FFS Medicare? Should they be available to all beneficiaries? Should they be able to offer additional benefits?—has long accompanied Medicare's private plan option. This debate is reflected in the history of Medicare payment policy, and policy decisions over the …

“Religious Freedom,” The Individual Mandate, And Gifts: On Why The Church Is Not A Bomb Shelter, Patrick Mckinley Brennan

Working Paper Series

The Health and Human Services' regulatory requirement that all but a narrow set of "religious" employers provide contraceptives to employees is an example of what Robert Post and Nancy Rosenblum refer to as a growing "congruence" between civil society's values and the state's legally enacted policy. Catholics and many others have resisted the HHS requirement on the ground that it violates "religious freedom." They ask (in the words of Cardinal Dolan) to be "left alone" by the state. But the argument to be "left alone" overlooks or suppresses the fact that the Catholic Church understands that it is its role …

Repairing The Antibiotic Pipeline: Can The Gain Act Do It?, Caitlin Forsyth

Washington Journal of Law, Technology & Arts

Antibiotic resistance, according to the World Health Organization, is one of the greatest threats to public health. To combat the problem, new antibiotics need to be developed. However, antibiotic research and development is fraught with scientific and economic problems. Recognizing these problems and the public health threat posed by antibiotic resistance, Congress passed the GAIN Act, which President Obama signed into law in June 2012. The GAIN Act (Act) incentivizes pharmaceutical companies to invest in antibiotic research and development. This Article will outline the incentives in the Act and suggest why the Act may not solve the growing antibiotic resistance …

Medical Advances, Criminal Disadvantages: The Tension Between Contemporary Antiretroviral Therapy And Criminal Hiv Exposure Laws In The Workplace, Chelsey Heindel

Washington Journal of Law, Technology & Arts

In 1988, the Washington Legislature classified intentionally exposing individuals to the human immunodeficiency virus (HIV) as criminal assault in the first degree. Lawmakers intended to penalize infected individuals without conditioning criminal liability on actual HIV transmission. Since 1988, however, medical technologies and effective HIV treatment have rapidly advanced. Recent studies indicate that effective antiretroviral therapy (ART) can reduce HIV transmission risks to a virtual impossibility during moments of intentional exposure. Despite these medical advances, the 1988 exposure law remains unchanged. Consequently, individuals undergoing effective ART risk felony liability within the course of commonplace work conduct by intentionally exposing others to …

The Affordable Care Act And International Recruitment And Migration Of Nursing Professionals, Helen D. Arnold

Indiana Journal of Global Legal Studies

Through its various provisions, the Affordable Care Act will insure more than thirty million Americans by January 1, 2014. This dramatic increase in coverage will have significant effects on both the U.S. economy and its healthcare system. Nursing professionals make up a large portion of the U.S. healthcare system and with a dramatic nursing shortage already in place, employers increasingly look abroad to fill nursing vacancies. Due to the increasing effects of globalization, foreign nurses have become an integral part of the U.S. healthcare system. This note argues that the increased coverage created by the Affordable Care Act will increase …

Defining Fetal Life: An Establishment Clause Analysis Of Religiously Motivated Informed Consent Provisions, Justin R. Olson

Indiana Law Journal

No abstract provided.

Don't Give Your Kid That Shot!: The Public Health Threat Posed By Anti-Vaccine Speech And Why Such Speech Is Not Guaranteed Full Protection Under The First Amendment, Amanda C. Naprawa

Cardozo Public Law, Policy & Ethics Journal

The article argues that antivaccination speech poses a significant threat to public health, and the law should be utilized to regulate such speech to prevent the spread of preventable diseases and protect vulnerable populations through herd immunity. While the First Amendment protects free speech, legal measures such as the FTC regulating false advertising and potential vaccine disparagement statutes can be effective tools in curbing harmful misinformation. The article emphasizes the need for a balanced approach that respects individual rights while safeguarding community health, supported by scientific consensus on vaccine safety and legal precedents like Jacobson v. Massachusetts.

Tylenol And An Ice Pack: An Inadequate Prescription For Hiv/Aids In Immigration Detention Centers, Carl Kenneth Lipscombe

Cardozo Public Law, Policy & Ethics Journal

The note examines the systemic challenges in providing adequate HIV treatment to immigration detainees in U.S. Immigration and Customs Enforcement (ICE) custody, highlighting the legal and practical barriers that prevent detainees from receiving consistent and effective medical care. It argues that the current framework, governed by non-binding standards and inconsistent enforcement, fails to ensure humane treatment under the Constitution, particularly the Eighth Amendment’s prohibition of cruel and unusual punishment. The analysis calls for structural reforms, including codifying detention standards into enforceable regulations and improving oversight mechanisms, to address the inadequate medical care for HIV-positive detainees.

Cms's Proposed Rule Implementing The Aca-Mandated Medicaid Dsh Reductions, Kathryn Linehan

National Health Policy Forum

State Medicaid programs make Medicaid disproportionate share hospital (DSH) payments to hospitals to help offset costs of uncompensated care for Medicaid and uninsured patients. Unlike most Medicaid spending, annual DSH allotments for each state are capped. Under the Patient Protection and Affordable Care Act of 2010 (ACA), DSH payments will decrease starting in fiscal year (FY) 2014 and continuing through FY 2020. This paper describes the proposed rule for reducing these federal allotments, which was released on May 15, 2013, by the Centers for Medicare & Medicaid Services (CMS). Comments on the proposed rule are due July 12, 2013.

2014 …

When Congress Practices Medicine: How Congressional Legislation Of Medical Judgment May Infringe A Fundamental Right, Shannon L. Pedersen

Touro Law Review

No abstract provided.

How Nfib V. Sebelius Affects The Constitutional Gestalt, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The thesis of this essay is that the most important legal effects of the Supreme Court's decision in NFIB v. Sebelius are likely to be indirect. Sebelius marks a possible shift in what we can call the “constitutional gestalt” regarding the meaning and implications of the so-called “New Deal Settlement.” Before Sebelius, the consensus understanding was that New Deal and Warren Court cases had established a constitutional regime of plenary and virtually unlimited national legislative power under the Commerce Clause (which might be subject to narrow and limited carve outs protective of the core of state sovereignty).

After Sebelius …

If A Right To Health Care Is Argued In The Supreme Court, Does Anybody Hear It?, W. David Koeninger

Indiana Journal of Law and Social Equality

No abstract provided.

Health Law: Cases, Materials And Problems, Robert L. Schwartz, Barry R. Furrow, Thomas L. Greaney, Sandra H. Johnson, Timothy Stoltzfus Jost

Faculty Book Display Case

For more than two decades, Health Law: Cases, Materials and Problems has defined the field of health law, providing a balanced overview of law as it affects patients, professionals, institutions, and entities that deliver and finance U.S. health care. The 7th Edition of Health Law comprehensively reviews the provisions of the Affordable Care Act with topics such as the oversight of quality (including the latest developments in patient safety), cost control (including consumer-directed health care), guarantees of adequate access to services, exempt-organization tax issues, transactions and relationships among health care professionals and providers, the Employee Retirement Income Security Act (ERISA), …

Global Health Rights: Employing Human Rights To Develop And Implement The Framework Convention On Global Health, Lance Gable, Benjamin Mason Meier

Law Faculty Research Publications

The Framework Convention on Global Health (FCGH) represents an important idea for addressing the expanding array of governance challenges in global health. Proponents of the FCGH suggest that it could further the right to health through its incorporation of rights into national laws and policies, using litigation and community empowerment to advance rights claims and prominently establish the right to health as central to global health governance. Building on efforts to expand development and influence of the right to health through the implementation of the FCGH, in this article we find that human rights correspondingly holds promise in justifying the …

The Priority Of Persons Revisited, John M. Finnis

Journal Articles

This essay, in the context of a conference on justice, reviews and reaffirms the main theses of “The Priority of Persons” (2000), and supplements them with the benefit of hindsight in six theses. The wrongness of Roe v. Wade goes wider than was indicated. The secularist scientistic or naturalist dimension of the reigning contemporary ideology is inconsistent with the spiritual reality manifested in every word or gesture of its proponents. The temporal continuity of the existence of human persons and their communities is highly significant for the common good, which is the point and measure of social justice, properly understood. …