Yale Journal of Health Policy, Law, and Ethics

A Breakthrough with the TPP: The Tobacco Carve-out

Sergio Puig et al. — Sun, 26 Mar 2017 12:29:06 PDT

The United States has made great progress in reducing tobacco consumption at home while spending taxpayer money to promote its consumption abroad. 1 While U.S. tobacco consumption rates have fallen dramatically since the 1960s, they are soaring in the developing world. 2 Today, about twenty percent of adults in the world smoke, and more than eighty percent of them live in low- and middle-income countries. 3 As a result, tobacco could kill one billion people this century, and largely in these lower-income countries.

An Evidence-Based Objection to Retributive Justice

Brian T.M. Mammarella — Sun, 26 Mar 2017 12:29:02 PDT

Advancements in neuroscience and related fields are beginning to show,
with increasing clarity, that certain human behaviors stem from uncontrolled, mechanistic causes. These discoveries beg the question: If a given behavior results from some combination of biological predispositions, neurological circumstances, and environmental influences, is that action unwilled
and therefore absolved of all attributions of credit, blame, and responsibility? A number of scholars in law and neuroscience who answer "yes" have considered how the absence of free will should impact criminal law's willingness to justify punishments on the basis of retribution, with some arguing that criminal law ought to dispense with retributive justice because the concept of
blameworthiness is out of touch with scientific reality. This Note posits a more practical reason for reform by reviewing available empirics on the way people perceive human agency. The research suggests that as the science of human agency becomes increasingly vivid and reductionistic, laypeople will become proportionally less willing to attribute blame, and these shifting societal intuitions will ultimately diminish criminal law 's moral credibility.

Rehabilitation, Education, and the Integration of Individuals with Severe Brain Injury into Civil Society: Towards an Expanded Rights Agenda in Response to New Insights from Translational Neuroethics and Neuroscience

Megan S. Wright et al. — Sun, 26 Mar 2017 12:28:58 PDT

Many minimally conscious patients are segregated in nursing homes, and are without access to rehabilitative technologies that could help them reintegrate into their communities. In this Article, we argue that persons in a minimally conscious state or who have the potential to progress to such a state must be provided rehabilitative services instead of being isolated in custodial care. The right to rehabilitative technologies for the injured brain stems by analogy to the expectation of free public education for children and adolescents, and also by statute under the Americans with Disabilities Act and under Supreme Court jurisprudence, namely the leading deinstitutionalization case, Olmstead v. L.C. ex rel. Zimring.

Reimagining the Risk of Long-Term Care

Allison K. Hoffman — Sun, 26 Mar 2017 12:28:51 PDT

U.S. law and policy on long-term care fail to address the insecurity American families face due to prolonged illness and disability-a problem that grows more serious as the population ages and rates of disability rise. This Article argues that, even worse, we have focused on only part of the problem. It illuminates two ways that prolonged disability or illness can create insecurity.
The first arises from the risk of becoming disabled or sick and needing long-term care, which could be called "care-recipient" risk. The second arises out of the risk of becoming responsible for someone else's care, which I call "next-friend" risk. The law and social welfare policy has focused on the first, but this Article argues that the second equally threatens the wellbeing of American families.
While attempting to mitigate care-recipient risk, in fact, the law has steadily expanded next-friend risk, by reinforcing a structure of long-term care that relies heavily on informal caregiving. Millions of informal caregivers face financial and nonmonetary harms that deeply threaten their own long-term security. These harms are disproportionately experienced by people who are already vulnerable-women, minorities, and the poor. Scholars and policymakers have catalogued and critiqued these costs but treat them as an unfortunate byproduct of an inevitable system of informal care.

The Antidotes to the Double Standard: Protecting the Healthcare Rights of Mentally Ill Inmates by Blurring the Line Between Estelle and Youngberg

Rose Carmen Goldberg — Wed, 31 Aug 2016 10:25:04 PDT

This Note is an examination of mentally illinmates' constitutional right to treatment. It has significant doctrinal and practical implications. In terms of doctrine, the Supreme Court has created distinct standards for the minimum levels of care for inmates (Estelle) and the civilly committed mentally ill (Youngberg). Under this framework mentally ill inmates are constitutionally equivalent to inmates generally, but are entitled to less care than the civilly committed even if they suffer the same illness. This Note explores this gap through the lens of equal protection and argues that mentally ill inmates are similarly situated to the civilly committed. It further contends that inmates constitute a "discrete and insular minority" and thus the standard establishing their right to care should be subject to strict scrutiny. This Note finds that Estelle fails this test.

Health and Taxes: Hospitals, Community Health and the IRS

Mary Crossley — Wed, 31 Aug 2016 10:25:01 PDT

The Affordable Care Act created new conditions of federal tax exemption for nonprofit hospitals, including a requirement that hospitals conduct a community health needs assessment (CHNA) every three years to identify significant health needs in their communities and then develop and implement a strategy responding to those needs. As a result, hospitals must now do more than provide charity care to their patients in exchange for the benefits of tax exemption. The CHNA requirement has the potential both to prompt a radical change in hospitals' relationship to their communities and to enlist hospitals as meaningful contributors to community health improvement initiatives. Final regulations issued in December 2014 clarify hospitals' obligations under the CHNA requirement, but could do more to facilitate hospitals' engagement in collaborative community health projects. The Internal Revenue Service (IRS) has a rich opportunity, while hospitals are still learning to conduct CHNAs, to develop guidance establishing clear but flexible expectations for how providers should assess and address community needs. This Article urges the IRS to seize that opportunity by refining its regulatory framework for the CHNA requirement. Specifically, the IRS should more robustly promote transparency, accountability, community engagement, and collaboration while simultaneously leaving hospitals a good degree of flexibility. By promoting alignment between hospitals' regulatory compliance activities and broader community health improvement initiatives, the IRS could play a meaningful role in efforts to reorient our system towards promoting health and not simply treating illness.

The Fitbit Fault Line: Two Proposals to Protect Health and Fitness Data at Work

Elizabeth A. Brown — Wed, 31 Aug 2016 10:24:57 PDT

Employers are collecting and using their employees' health data, mined from wearable fitness devices and health apps, in new, profitable, and barely regulated ways. The importance of protecting employee health and fitness data will grow exponentially in the future. This is the moment for a robust discussion of how law can better protect employees from the potential misuse of their health data. While scholars have just begun to examine the problem of health data privacy, this Article contributes to the academic literature in three important ways. First, it analyzes the convergence of three trends resulting in an unprecedented growth of health-related data: the Internet of Things, the Quantified Self movement, and the Rise of Health Platforms. Second, it describes the insufficiencies of specific data privacy laws and federal agency actions in the context of protecting employee health data from employer misuse. Finally, it provides two detailed and workable solutions for remedying the current lack of protection of employee health data that will realign employer use with reasonable expectations of health and fitness privacy.

The Quest for Global Justice in Health: A Review of Global Health Law by Lawrence 0. Gostin

Octavio Gomez-Dants et al. — Wed, 07 Oct 2015 12:19:02 PDT

We are witnessing the emergence of a new world health order. Health occupies an increasingly relevant place in the global agenda. An unprecedented health transition is leading to a new model characterized by expanded international and national funding for health and the involvement of a growing pluralism of actors.

In the Nick of Time: Using the Reasonable Promptness Provision to Challenge Medicaid Spending Cutbacks

Jeffrey Chen — Wed, 07 Oct 2015 12:19:01 PDT

Because agency enforcement of the Medicaid statute against non-compliant states is utterly impractical, Medicaid providers and beneficiaries have relied on § 1983 litigation to protect themselves against the harmful effects of state cutbacks on Medicaid spending by privately enforcing two particular provisions of the Medicaid statute against the states. However, because of several legislative and judicial decisions, private litigants can no longer use these provisions to challenge low Medicaid reimbursement rates. This Note proposes and evaluates an alternative method of resisting state Medicaid spending cutbacks: enforcing the Reasonable Promptness Provision of the Medicaid statute through § 1983.

Hatch-Waxman Turns 30: Do We Need a Re-Designed Approach for the Modern Era?

Aaron S. Kesselheim et al. — Wed, 07 Oct 2015 12:19:00 PDT

In 1984, Congress passed the Hatch-Waxman Act, which catalyzed the creation of the modem generic drug industry. Generic drugs today account for eighty-four percent of all prescriptions dispensed, but less than twenty percent of drug costs. Despite this success, numerous problems in the generic drug market have emerged. Some involve the deliberate manipulation of the Hatch-Waxman system, while others have arisen more unexpectedly, such as the Supreme Court's 2011 decision in Pliva v. Mensing that could undermine consumer confidence in generic drugs. We discuss these emerging challenges and propose updates to the Hatch-Waxman Act to continue support for the timely emergence of safe generic drugs.

Responding to Public Health Emergencies on Tribal Lands: Jurisdictional Challenges and Practical Solutions

Justin B. Barnard — Wed, 07 Oct 2015 12:18:59 PDT

Response to public health emergencies on tribal lands poses a unique challenge for state and tribal public health officials. The complexity and intensely situation-specific nature of federal Indian jurisprudence leaves considerable question as to which government entity, state or tribal, has jurisdiction on tribal lands to undertake basic emergency measures such as closure of public spaces, quarantine, compulsory medical examination, and investigation.

Health Affairs Blog Post: Challenges for People with Disabilities within the Health Care Safety Net

Michael R. Ulrich — Wed, 07 Oct 2015 12:18:54 PDT

Medicare and Medicaid were passed to serve as safety nets for the country's most vulnerable populations, a point that has been reemphasized by the expansion of the populations they serve, especially with regards to Medicaid. Yet, even after 50 years, the disabled population continues to be one whose health care needs are not being met. This community is all too frequently left to suffer health disparities due to cultural incompetency, stigma and misunderstanding, and an inability to create policy changes that covers the population as a whole and their acute and long-term needs.

Medicare, Medicaid, and Pharmaceuticals: The Price of Innovation

Daniel J. Kevles — Wed, 07 Oct 2015 12:18:52 PDT

Through much of the last half century, Medicare and Medicaid have not for the most part supported research intended to lead to new drugs. For their role in drug development, we need to look to infrastructure and incentives. The record of the National Institutes of Health (NIH) illustrates the potential of both for pharmaceutical innovation. The current budget of NIH, the big elephant in the zoo of the federal biomedical enterprise, is $30 billion, but apart from a dozen small programs devoted to targeted drug development, most of these billions are not aimed directly at pharmaceutical innovation.

Health Affairs Blog Post: 1332 Waivers and the Future of State Health Reform

Heather Howard et al. — Wed, 07 Oct 2015 12:18:51 PDT

The Affordable Care Act (ACA) turbocharges state innovation through a number of provisions, such as the creation of the Center for Medicare & Medicaid Innovation, funding for states to establish customized insurance exchanges, and Medicaid initiatives such as health homes. Yet, another component of the law holds even more potential for broad reform. Buried in section 1332 of the law is a sparkplug for innovation called the Waiver for State Innovation program.

Health Affairs Blog Post: Social Insurance Is Missing a Piece: Medicare, Medicaid, and Long-Term Care

Judy Feder — Wed, 07 Oct 2015 12:18:49 PDT

Medicare and Medicaid are partners in providing health insurance protection to older people and people with disabilities. But when it comes to helping the very same people with long-term care-assistance with the basic tasks of daily life (like bathing, eating and toileting)-no such partnership exists. Instead, there is a gaping hole in protection that leaves people who need care, along with their families, at risk of catastrophe.

Out of the Black Box and Into the Light: Using Section 1115 Medicaid Waivers to Implement the Affordable Care Act's Medicaid Expansion

Sidney D. Watson — Wed, 07 Oct 2015 12:18:48 PDT

What price Medicaid expansion? The Supreme Court's decision in National Federation of Independent Business (NFIB) v. Sebelius,' sparked intense debate about how the Secretary of Health & Human Services (HHS) would respond to pressure from recalcitrant states. Policy experts and Sunday-moming pundits predicted that Red States would demand Section 1115 waivers of federal Medicaid rules as the quid pro quo for implementing the Affordable Care Act's (ACA) Medicaid expansion that covers adults with incomes up to 133% of the federal poverty level (FPL). They prophesized that the Obama Administration, desperate to move implementation forward, would have little leverage in its negotiations with states.

Clash of the Titans: Medicaid Meets Private Health Insurance

Sara Rosenbaum — Wed, 07 Oct 2015 12:18:47 PDT

Throughout its first forty-eight years of life, the federal Medicaid statute lacked a viable insurance pathway for most low-income adults' ineligible for employer-sponsored coverage. In what is arguably the most important public health achievement since the enactment of Medicare and Medicaid fifty years ago, the Patient Protection and Affordable Care Act (ACA) fundamentally alters this picture. Building on earlier breakthroughs for children, the ACA restructures Medicaid to cover poor adults and juxtaposes its new architecture against an affordable and accessible private insurance market for people ineligible for employer-sponsored or government insurance.

Medicaid at 50: No Longer Limited to the "Deserving" Poor?

David Orentlicher — Wed, 07 Oct 2015 12:18:45 PDT

For the first fifty years of its existence, Medicaid suffered from a serious defect-while it was adopted to meet the health care needs of the poor, it was designed only to meet the needs of the so-called "deserving" poor. Rather than providing Medicaid benefits to all persons who fell below the federal poverty level of income (or met some other measure of indigence), Congress limited eligibility to those categories of the poor that were viewed as especially deserving of assistance. These categories included children, pregnant women, single caretakers of children, and disabled persons.

Medicare at 50: Why Medicare-for-all Did Not Take Place

Theodore R. Marmor et al. — Wed, 07 Oct 2015 12:18:44 PDT

In the fifty years since Medicare was enacted, Congress has not, with two exceptions in the 1970s, extended Medicare beyond the elderly. In those fifty years Congress has not even engaged in a serious discussion about expanding Medicare beyond the elderly. This disinterest persisted even during those periods when national health insurance was at the top of the national agenda. In other words, even when the conditions for health care reform were promising, Congress did not make Medicare-for-all a prominent option. In recent years, there has been at least as much discussion about raising Medicare's eligibility age as there has been about expanding the program to even a small fraction of the non-elderly.

The Accidental Administrative Law of the Medicare Program

Eleanor D. Kinney — Wed, 07 Oct 2015 12:18:43 PDT

On July 30, 1965, President Lyndon B. Johnson signed the Social Security Amendments of 1965, which established the Medicare and Medicaid programs. This legislation was the result of multiple efforts by the Democratic Party to bring government sponsored health insurance coverage to the American people. The legislation, by today's standards, was simple. The Statutes at Large version of the legislation is less than 30,000 words.