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Articles 1 - 30 of 98

Full-Text Articles in Health Law and Policy

Health Care's Market Bureaucracy, Allison K. Hoffman May 2019

Health Care's Market Bureaucracy, Allison K. Hoffman

Faculty Scholarship at Penn Law

The last several decades of health law and policy have been built on a foundation of economic theory. This theory supported the proliferation of market-based policies that promised maximum efficiency and minimal bureaucracy. Neither of these promises has been realized. A mounting body of empirical research discussed in this Article makes clear that leading market-based policies are not efficient — they fail to capture what people want. Even more, this Article describes how the struggle to bolster these policies — through constant regulatory, technocratic tinkering that aims to improve the market and the decision-making of consumers in it — has produced a massive ...


Unlocking Access To Health Care: A Federalist Approach To Reforming Occupational Licensing, Gabriel Scheffler Jan 2019

Unlocking Access To Health Care: A Federalist Approach To Reforming Occupational Licensing, Gabriel Scheffler

Faculty Scholarship at Penn Law

Several features of the existing occupational licensing system impede access to health care without providing appreciable protections for patients. Licensing restrictions prevent health care providers from offering services to the full extent of their competency, obstruct the adoption of telehealth, and deter foreign-trained providers from practicing in the United States. Scholars and policymakers have proposed a number of reforms to this system over the years, but these proposals have had a limited impact for political and institutional reasons.

Still, there are grounds for optimism. In recent years, the federal government has taken a range of initial steps to reform licensing ...


How Liability Insurers Protect Patients And Improve Safety, Tom Baker, Charles Silver Jan 2019

How Liability Insurers Protect Patients And Improve Safety, Tom Baker, Charles Silver

Faculty Scholarship at Penn Law

Forty years after the publication of the first systematic study of adverse medical events, there is greater access to information about adverse medical events and increasingly widespread acceptance of the view that patient safety requires more than vigilance by well-intentioned medical professionals. In this essay, we describe some of the ways that medical liability insurance organizations contributed to this transformation, and we catalog the roles that those organizations play in promoting patient safety today. Whether liability insurance in fact discourages providers from improving safety or encourages them to protect patients from avoidable harms is an empirical question that a survey ...


Falling Between The Cracks: Understanding Why States Fail In Protecting Our Children From Crime, Michal Gilad Nov 2018

Falling Between The Cracks: Understanding Why States Fail In Protecting Our Children From Crime, Michal Gilad

Faculty Scholarship at Penn Law

The article is the first to take an inclusive look at the monumental problem of crime exposure during childhood, which is estimated to be one of the most damaging and costly public health and public safety problem in our society today. It takes-on the challenging task of ‘naming’ the problem by coining the term Comprehensive Childhood Crime Impact or in short the Triple-C Impact. Informed by scientific findings, the term embodies the full effect of direct and indirect crime exposure on children due to their unique developmental characteristics, and the spillover effect the problem has on our society as a ...


Informed Consent And The Role Of The Treating Physician, Eric Feldman, Holly Fernandez Lynch, Steven Joffe Jun 2018

Informed Consent And The Role Of The Treating Physician, Eric Feldman, Holly Fernandez Lynch, Steven Joffe

Faculty Scholarship at Penn Law

In the century since Justice Benjamin N. Cardozo famously declared that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,” informed consent has become a central feature of American medical practice. In an increasingly team-based and technology-driven system, however, who is — or ought to be — responsible for obtaining a patient’s consent? Must the treating physician personally provide all the necessary disclosures, or can the consent process, like other aspects of modern medicine, take advantage of specialization and division of labor? Analysis of Shinal v. Toms ...


Baby M Turns 30: The Law And Policy Of Surrogate Motherhood, Eric A. Feldman Jan 2018

Baby M Turns 30: The Law And Policy Of Surrogate Motherhood, Eric A. Feldman

Faculty Scholarship at Penn Law

This article marks the 30th anniversary of the Supreme Court of New Jersey’s Baby M decision by offering a critical analysis of surrogacy policy in the United States. Despite fundamental changes in both science and society since the case was decided, state courts and legislatures remain bitterly divided on the legality of surrogacy. In arguing for a more uniform, permissive legal posture toward surrogacy, the article addresses five central debates in the surrogacy literature.

First, should the legal system accommodate those seeking conception through surrogacy, or should it prohibit such arrangements? Second, if surrogacy is permitted, what steps can ...


What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler Dec 2017

What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler

Faculty Scholarship at Penn Law

Major legislative actions during the early part of the 115th Congress have undermined the central argument for regulatory reform measures such as the REINS Act, a bill that would require congressional approval of all new major regulations. Proponents of the REINS Act argue that it would make the federal regulatory system more democratic by shifting responsibility for regulatory decisions away from unelected bureaucrats and toward the people’s representatives in Congress. But separate legislative actions in the opening of the 115th Congress only call this argument into question. Congress’s most significant initiatives during this period — its derailed attempts to ...


The Effect Of Health Insurance Coverage Expansions On Auto Liability Claims And Costs, Srikanth Kadiyala, Paul Heaton Jun 2017

The Effect Of Health Insurance Coverage Expansions On Auto Liability Claims And Costs, Srikanth Kadiyala, Paul Heaton

Faculty Scholarship at Penn Law

How do the Affordable Care Act health insurance coverage expansions affect payment for medical care provided through liability insurance, such as auto insurance? Theoretically, expanding coverage might lead to a substitution of health insurance disbursements for automobile insurance disbursements. Alternatively, expanding health insurance coverage might increase utilization of medical care, increasing auto liability claims payments. The net effect of these two mechanisms can only be determined empirically. We evaluate the health insurance-auto insurance interaction by examining the 2010 ACA dependent coverage expansion. Prior to 2010, individuals 19 and older were excluded from health insurance coverage under their parental health insurance ...


From The Technical To The Personal: Teaching And Learning Health Insurance Regulation And Reform, Allison K. Hoffman, Whitney A. Brown, Lindsay Cutler Jan 2017

From The Technical To The Personal: Teaching And Learning Health Insurance Regulation And Reform, Allison K. Hoffman, Whitney A. Brown, Lindsay Cutler

Faculty Scholarship at Penn Law

In the Fall of 2016, I taught Health Law and Policy for the fourth consecutive semester. Over time, one thing has become increasingly clear: the aspect of this course that I work with most closely as a scholar—the regulation of health care financing and insurance, including the Patient Protection and Affordable Care Act (ACA)—is also the material that I find the most challenging to teach. Every time I reflect on teaching this material, and hear from students about how they learn this material, the thing that stands out is how critical it is that my students understand the ...


The Poverty Of The Neuroscience Of Poverty: Policy Payoff Or False Promise?, Amy L. Wax Jan 2017

The Poverty Of The Neuroscience Of Poverty: Policy Payoff Or False Promise?, Amy L. Wax

Faculty Scholarship at Penn Law

A recent body of work in neuroscience examines the brains of people suffering from social and economic disadvantage. This article assesses claims that this research can help generate more effective strategies for addressing these social conditions and their effects. It concludes that the so-called neuroscience of deprivation has no unique practical payoff, and that scientists, journalists, and policy-makers should stop claiming otherwise. Because this research does not, and generally cannot, distinguish between innate versus environmental causes of brain characteristics, it cannot predict whether neurological and behavioral deficits can be addressed by reducing social deprivation. Also, knowledge of brain mechanisms yields ...


Neuroethics: Neurolaw, Stephen J. Morse Sep 2016

Neuroethics: Neurolaw, Stephen J. Morse

Faculty Scholarship at Penn Law

This is a pre-copyedited version of a chapter in the Oxford Handbooks Online (Philosophy) edited by Sandy Goldberg. In altered form, it was published online in February, 2017 and can be found at the Oxford Handbooks Online website. The entry discusses whether the findings of the new neuroscience based largely on functional brain imaging raise new normative questions and entail normative conclusions for ethical and legal theory and practice. After reviewing the source of optimism about neuroscientific contributions and the current scientific status of neuroscience, it addresses a radical challenge neuroscience allegedly presents: whether neuroscience proves persons do not have ...


Regulating E-Cigarettes: Why Policies Diverge, Eric A. Feldman Apr 2016

Regulating E-Cigarettes: Why Policies Diverge, Eric A. Feldman

Faculty Scholarship at Penn Law

This paper, part of a festschrift in honor of Professor Malcolm Feeley, explores the landscape of e-cigarette policy globally by looking at three jurisdictions that have taken starkly different approaches to regulating e-cigarettes—the US, Japan, and China. Each of those countries has a robust tobacco industry, government agencies entrusted with protecting public health, an active and sophisticated scientific and medical community, and a regulatory structure for managing new pharmaceutical, tobacco, and consumer products. All three are signatories of the World Health Organization’s Framework Convention on Tobacco Control, all are signatories of the Agreement on Trade-Related Aspects of Intellectual ...


Reimagining The Risk Of Long-Term Care, Allison K. Hoffman Jan 2016

Reimagining The Risk Of Long-Term Care, Allison K. Hoffman

Faculty Scholarship at Penn Law

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 ...


E-Cigarette Regulation In China: The Road Ahead, Eric A. Feldman, Chai Yue Jan 2016

E-Cigarette Regulation In China: The Road Ahead, Eric A. Feldman, Chai Yue

Faculty Scholarship at Penn Law

The global electronic cigarette industry has exploded in the past decade—from $20 million in sales in 2008 to an estimated $7 billion in 2014—and China has been an essential part of that growth. As the world's largest consumer of combustible tobacco products, accounting for about one-third of the global market. China is also a prime contender to become the largest consumer of electronic cigarettes. These simple facts raise a critical question—what should the Chinese government do about regulating electronic cigarettes?

So far, the regulation of electronic cigarettes in China has attracted scant attention. This paper begins ...


The Developmental Effect Of State Alcohol Prohibitions At The Turn Of The 20th Century, Mary F. Evans, Eric Helland, Jonathan Klick, Ashwin Patel Sep 2015

The Developmental Effect Of State Alcohol Prohibitions At The Turn Of The 20th Century, Mary F. Evans, Eric Helland, Jonathan Klick, Ashwin Patel

Faculty Scholarship at Penn Law

We examine the quasi-randomization of alcohol consumption created by state-level alcohol prohibition laws passed in the U.S. in the early part of the 20th century. Using a large dataset of World War II enlistees, we exploit the differential timing of these laws to examine their effects on adult educational attainment, obesity, and height. We find statistically significant effects for education and obesity that do not appear to be the result of pre-existing trends. Our findings add to the growing body of economic studies that examines the long-run impacts of in utero and childhood environmental conditions.


Rediscovering Capture: Antitrust Federalism And The North Carolina Dental Case, Herbert J. Hovenkamp Apr 2015

Rediscovering Capture: Antitrust Federalism And The North Carolina Dental Case, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This brief essay analyzes the Supreme Court's 2015 decision in the North Carolina Dental case, assessing its implications for federalism. The decision promises to re-open old divisions that had once made the antitrust "state action" doctrine a controversial lightning rod for debate about state economic sovereignty.

One provocative issue that neither the majority nor the dissenters considered is indicated by the fact that nearly all the cartel customers in the Dental case were located within the state. By contrast, the cartel in Parker v. Brown, which the dissent held up as the correct exemplar of the doctrine, benefited California ...


The Effect Of Any Willing Provider And Freedom Of Choice Laws On Prescription Drug Expenditures, Jonathan Klick, Joshua D. Wright Jan 2015

The Effect Of Any Willing Provider And Freedom Of Choice Laws On Prescription Drug Expenditures, Jonathan Klick, Joshua D. Wright

Faculty Scholarship at Penn Law

Any Willing Provider and Freedom of Choice laws restrict the ability of managed care entities, including pharmacy benefit managers, to selectively contract with providers. The managed care entities argue this limits their ability to generate cost savings, while proponents of the laws suggest that such selective contracts limit competition, leading to an increase in aggregate costs. We examine the effect of state adoption of such laws on total state healthcare spending, finding that any willing provider/freedom of choice laws are associated with cost increases of at least 3 percent. These results suggest that these laws are harmful from a ...


The Reverberating Risk Of Long-Term Care, Allison K. Hoffman Jan 2015

The Reverberating Risk Of Long-Term Care, Allison K. Hoffman

Faculty Scholarship at Penn Law

The Fiftieth Anniversary of Medicare and Medicaid offers an opportunity to reflect on how American social policy has conceived of the problem of long-term care. In this essay, based on a longer forthcoming article, I argue that current policies adopt too narrow a conception of long-term care risk, by focusing on the effect of serious illness and disability on people who need care and not on the friends and family who often provide it. I propose a more complete view of long-term care risk that acknowledges how illness and disability reverberates through communities, posing insecurity for people beyond those in ...


Health Care Spending And Financial Security After The Affordable Care Act, Allison K. Hoffman Jan 2015

Health Care Spending And Financial Security After The Affordable Care Act, Allison K. Hoffman

Faculty Scholarship at Penn Law

Health insurance has fallen notoriously short of protecting Americans from financial insecurity caused by health care spending. The Patient Protection and Affordable Care Act (“ACA”) attempted to ameliorate this shortcoming by regulating health insurance. The ACA offers a new policy vision of how health insurance will (and perhaps should) serve to promote financial security in the face of health care spending. Yet, the ACA’s policy vision applies differently among insured, based on the type of insurance they have, resulting in inconsistent types and levels of financial protection among Americans.

To examine this picture of inconsistent financial protection, this Article ...


Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro Oct 2014

Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Faculty Scholarship at Penn Law

The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.

As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply ...


Public Assistance, Drug Testing, And The Law: The Limits Of Population-Based Legal Analysis, Candice T. Player Jan 2014

Public Assistance, Drug Testing, And The Law: The Limits Of Population-Based Legal Analysis, Candice T. Player

Faculty Scholarship at Penn Law

In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues—not unlike law and economics—as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still, population-based analysis is not without its problems. At times, Parmet claims too much territory for the population perspective. Moreover, Parmet urges ...


A Vision Of An Emerging Right To Health Care In The U.S.: Expanding Health Care Equity Through Legislative Reform, Allison K. Hoffman Jan 2014

A Vision Of An Emerging Right To Health Care In The U.S.: Expanding Health Care Equity Through Legislative Reform, Allison K. Hoffman

Faculty Scholarship at Penn Law

When asked to write a chapter on how litigation has advanced a right to health in the U.S., I responded skeptically, both because evidence of the existence of any such right is weak and the role of litigation in promoting its development is small at best. A snapshot of the U.S. health care system evinces the absence of even a more narrow right to health care – a guarantee of equitable access to basic medical care. Instead, it reveals a fragmented picture of public and private financing that leaves many people lacking meaningful access to care. More so, the ...


Layers Of Law: The Case Of E-Cigarettes, Eric A. Feldman Jan 2014

Layers Of Law: The Case Of E-Cigarettes, Eric A. Feldman

Faculty Scholarship at Penn Law

This paper, written for a symposium on "Layers of Law and Social Order," connects the current debate over the regulation of electronic cigarettes with socio-legal scholarship on law, norms, and social control. Although almost every aspect of modern life that is subject to regulation can be seen through the framework ‘layers of law,’ e-cigarettes are distinguished by the rapid emergence of an unusually dense legal and regulatory web. In part, the dense fabric of e-cigarette law and regulation, both within and beyond the US, results from the lack of robust scientific and epidemiological data on the behavioral and health consequences ...


Money, Sex, And Religion--The Supreme Court's Aca Sequel, George J. Annas, Theodore Ruger, Jennifer Prah Ruger Jan 2014

Money, Sex, And Religion--The Supreme Court's Aca Sequel, George J. Annas, Theodore Ruger, Jennifer Prah Ruger

Faculty Scholarship at Penn Law

The Supreme Court decision in the Hobby Lobby case is in many ways a sequel to the Court's 2012 decision on the constitutionality of the Affordable Care Act (ACA). The majority decision, written by Justice Samuel Alito, is a setback for both the ACA's foundational goal of access to universal health care and for women's health care specifically. The Court's ruling can be viewed as a direct consequence of our fragmented health care system, in which fundamental duties are incrementally delegated and imposed on a range of public and private actors. Our incremental, fragmented, and incomplete ...


Anticompetitive Patent Settlements And The Supreme Court's Actavis Decision, Herbert J. Hovenkamp Nov 2013

Anticompetitive Patent Settlements And The Supreme Court's Actavis Decision, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

In FTC v. Actavis the Supreme Court held that settlement of a patent infringement suit in which the patentee of a branded pharmaceutical drug pays a generic infringer to stay out of the market may be illegal under the antitrust laws. Justice Breyer's majority opinion was surprisingly broad, in two critical senses. First, he spoke with a generality that reached far beyond the pharmaceutical generic drug disputes that have provoked numerous pay-for-delay settlements.

Second was the aggressive approach that the Court chose. The obvious alternatives were the rule that prevailed in most Circuits, that any settlement is immune from ...


Can Consumers Make Affordable Care Affordable? The Value Of Choice Architecture, Eric J. Johnson, Ran Hassin, Tom Baker, Allison T. Bajger, Galen Treuer Jul 2013

Can Consumers Make Affordable Care Affordable? The Value Of Choice Architecture, Eric J. Johnson, Ran Hassin, Tom Baker, Allison T. Bajger, Galen Treuer

Faculty Scholarship at Penn Law

Starting this October, tens of millions will be choosing health coverage on a state or federal health insurance exchange as part of the Patient Protection and Affordable Care Act. We examine how well people make these choices, how well they think they do, and what can be done to improve these choices. We conducted 6 experiments asking people to choose the most cost-effective policy using websites modeled on current exchanges. Our results suggest there is significant room for improvement. Without interventions, respondents perform at near chance levels and show a significant bias, overweighting out-of-pocket expenses and deductibles. Financial incentives do ...


Shots For Tots?, Eric A. Feldman May 2013

Shots For Tots?, Eric A. Feldman

Faculty Scholarship at Penn Law

By endorsing the use of a vaccine that makes the experience of puffing on a cigarette deeply distasteful, Lieber and Millum have taken the first few tentative steps into a future filled with medical interventions that manipulate individual preferences. It is tempting to embrace the careful arguments of “Preventing Sin” and celebrate the possibility that the profound individual and social costs of smoking will finally be tamed. Yet there is something unsettling about the possibility that parental discretion may be on the cusp of a radical expansion, one that involves a new and unexplored approach to behavior modification.


Coercion, Compulsion, And The Medicaid Expansion: A Study In The Doctrine Of Unconstitutional Conditions, Mitchell N. Berman Jan 2013

Coercion, Compulsion, And The Medicaid Expansion: A Study In The Doctrine Of Unconstitutional Conditions, Mitchell N. Berman

Faculty Scholarship at Penn Law

No abstract provided.


Health Insurance, Employment, And The Human Genome: Genetic Discrimination And Biobanks In The United States, Eric A. Feldman, Chelsea Darnell Jan 2013

Health Insurance, Employment, And The Human Genome: Genetic Discrimination And Biobanks In The United States, Eric A. Feldman, Chelsea Darnell

Faculty Scholarship at Penn Law

Does genetic information warrant special legal protection, and if so how should it be protected? This essay examines the most recent (and indeed only) significant effort by the US government to prohibit genetic discrimination, the Genetic Information Nondiscrimination Act (GINA). We argue that the legislation is unlikely to have the positive impact sought by advocates of genetic privacy and proponents of biobanks. In part, GINA disappoints because it does too little. Hailed by its promoters as “the first civil rights act of the 21st century,” GINA’s reach is in fact quite modest and its grasp even more so ...


Retiree Out-Of-Pocket Healthcare Spending: A Study Of Consumer Expectations And Policy Implications, Allison K. Hoffman, Howell E. Jackson Jan 2013

Retiree Out-Of-Pocket Healthcare Spending: A Study Of Consumer Expectations And Policy Implications, Allison K. Hoffman, Howell E. Jackson

Faculty Scholarship at Penn Law

Even though most American retirees benefit from Medicare coverage, a mounting body of research predicts that many will face large and increasing out-of-pocket expenditures for healthcare costs in retirement and that many already struggle to finance these costs. It is unclear, however, whether the general population understands the likely magnitude of these out-of-pocket expenditures well enough to plan for them effectively. This study is the first comprehensive examination of Americans’ expectations regarding their out-of-pocket spending on healthcare in retirement. We surveyed over 1700 near retirees and retirees to assess their expectations regarding their own spending and then compared their responses ...