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Full-Text Articles in Health Law and Policy

The Facts Of Stigma: What's Missing From The Procedural Due Process Of Mental Health Commitment, Alexandra S. Bornstein Feb 2019

The Facts Of Stigma: What's Missing From The Procedural Due Process Of Mental Health Commitment, Alexandra S. Bornstein

Yale Journal of Health Policy, Law, and Ethics

This is the first systematic review of federal, judicial opinions that engage the stigma of mental health commitment in the context of procedural due process. In 1979, in Addington v. Texas, the Supreme Court held that the stigma, or adverse social consequences, of civil commitment is relevant to the procedural due process analysis. The following year, in Vitek v. Jones, the Court held that the stigmatizing consequences of a transfer from a prison to a mental health facility, coupled with mandatory treatment, triggered procedural protections.


Righting Research Wrongs: An Empirical Study Of How U.S. Institutions Resolve Grievances Involving Human Subjects, Kristen Underhill Feb 2019

Righting Research Wrongs: An Empirical Study Of How U.S. Institutions Resolve Grievances Involving Human Subjects, Kristen Underhill

Yale Journal of Health Policy, Law, and Ethics

Tens of millions of people enroll in research studies in the United States every year, making human subjects research a multi-billion-dollar industry in the U.S. alone. Research carries risks: although many harms are inevitable, some also arise from errors or mistreatment by researchers, and the history of research ethics is in many ways a history of scandal. Despite regulatory efforts to remedy these abuses, injured subjects nonetheless have little recourse to U.S. courts. In the absence of tort remedies for research-related injuries, the only venue for resolving such disputes is through alternative dispute resolution (ADR)—or more commonly ...


The Problem Of Intra-Personal Cost, Brian Galle Feb 2019

The Problem Of Intra-Personal Cost, Brian Galle

Yale Journal of Health Policy, Law, and Ethics

"Externalities," or harms to others, provide a standard justification for government intervention in the private market. There is less agreement over whether government is justified in correcting "internalities," or harms we inflict on our own health or well-being. While some of the internality dispute is philosophical, some is practical. Critics suggest government lacks information to regulate internalities, and that any intervention would inefficiently distort a private market for self-help. This Article argues that these critiques of regulation overlook well-established tools of externality regulation, as well as a burgeoning literature on the measurement of internalities.


 The Roots And Branches Of The Medical-Legal Partnership Approach To Health: From Collegiality To Civil Rights To Health Equity, Joel Teitelbaum, Ellen Lawton Jun 2018

 The Roots And Branches Of The Medical-Legal Partnership Approach To Health: From Collegiality To Civil Rights To Health Equity, Joel Teitelbaum, Ellen Lawton

Yale Journal of Health Policy, Law, and Ethics

This Article traces the roots of the medical-legal partnership (MLP) approach

to health as a way of promoting the use of law to remedy societal and institutional pathologies that lead to individual and population illness and to health inequalities. Given current forces at work - the medical care and public health systems' foctis on social determinants of health, the increased use of value-based medical care payment reforms, and the emerging movement to train the next generation of health care and public health professionals in structural competency - the time is ripe to spread the view that law is an important lens through ...


 Ethics Of Evidence: Health Care Professionals In Public Benefits And Immigration Proceedings, Jesselyn Friley Jun 2018

 Ethics Of Evidence: Health Care Professionals In Public Benefits And Immigration Proceedings, Jesselyn Friley

Yale Journal of Health Policy, Law, and Ethics

This Article discusses the role of health care professionals in applications for public benefits and immigration relief. Medical-legal partnerships (MLPs) often represent patients who are applying for disability or veterans benefits, or who are seeking asylum based on past persecution. The strength of a patient's medical evidence often determines whether their claim succeeds or fails. Many health care professionals provide corroborating evidence for their patients, but even when they do not, their opinions appear in the proceedings through medical records.


 Medical-Legal Partnerships With Communities: Legal Empowerment To Transform Care, Tamar Ezer Jun 2018

 Medical-Legal Partnerships With Communities: Legal Empowerment To Transform Care, Tamar Ezer

Yale Journal of Health Policy, Law, and Ethics

Medical-legal partnerships (MLPs) integrate legal services into health care settings to provide holistic care and address the social determinants of health. This article brings a legal-empowerment lens to MLP work, arguing for a stronger focus on communities. It examines the application to MLPs of bringing services to communities, investing in rights literacy, and partnering with community-based paralegals. It then outlines the potential for a transformation in health and legal services to a rights - rather than needs-based framework where communities are active partners in program design and development.


 A Mental Health Checkup For Children At The Doctor's Office: Lessons From The Medical-Legal Partnership Movement To Fulfill Medicaid's Promise, Yael Cannon Jun 2018

 A Mental Health Checkup For Children At The Doctor's Office: Lessons From The Medical-Legal Partnership Movement To Fulfill Medicaid's Promise, Yael Cannon

Yale Journal of Health Policy, Law, and Ethics

Traumatic childhood events and the stress they cause can negatively affect health over a lifetime. For children with Medicaid coverage, visits to the doctor's office present an opportunity to improve this trajectory. Medicaid's Early Periodic Screening Diagnostic and Treatment (EPSDT) mandate requires that children receive more than a basic physical when they see a doctor for regular "well-child checks."


Introduction To The Medical-Legal Partnership Symposium Issue, Susanna D. Evarts, Nathan Guevremont Jun 2018

Introduction To The Medical-Legal Partnership Symposium Issue, Susanna D. Evarts, Nathan Guevremont

Yale Journal of Health Policy, Law, and Ethics

Since the first medical-legal partnership (MLP) opened in 1993 at the Boston Medical Center, MLPs have increasingly become integrated into community health centers around the United States. And MLPs are in the business of growth: more than 300 MLPs are currently operating in the United States, and 59 percent of those are fewer than five years old. MLPs are collaborations between physicians and civil attorneys in which the attorneys are integrated into the health care team, and work with the patient to address civil legal needs that impact the social determinants of a patient's health.


Suffrage For People With Intellectual Disabilities And Mental Illness: Observations On A Civic Controversy, Charles Kopel Dec 2017

Suffrage For People With Intellectual Disabilities And Mental Illness: Observations On A Civic Controversy, Charles Kopel

Yale Journal of Health Policy, Law, and Ethics

Most electoral democracies, including forty-three states in the United States,
deny people the right to vote on the basis of intellectual disability or mental illness. Scholars in several fields have addressed these disenfranchisements, including legal scholars who analyze their validity under U.S. constitutional law and international-human-rights law, philosophers and political scientists who analyze their validity under democratic theory, and mental-health
researchers who analyze their relationship to scientific categories.


Regulatory Disruption And Arbitrage In Health-Care Data Protection, Nicolas P. Terry Dec 2017

Regulatory Disruption And Arbitrage In Health-Care Data Protection, Nicolas P. Terry

Yale Journal of Health Policy, Law, and Ethics

This article explains how the structure of U.S. health-care data protection
(specifically its sectoral and downstream properties) has led to a chronically uneven policy environment for different types of health-care data. It examines claims for health-care data protection exceptionalism and competing demands such as data liquidity. In conclusion, the article takes the position that health­ care-data exceptionalism remains a valid imperative and that even current concerns about data liquidity can be accommodated in an exceptional protective model. However, re-calibrating our protection of health-care data residing outside of the traditional health-care domain is challenging, currently even
politically impossible.


Paying Research Participants: Regulatory Uncertainty, Conceptual Confusion, And A Path Forward, Emily A. Largent, Holly Fernandez Lynch Dec 2017

Paying Research Participants: Regulatory Uncertainty, Conceptual Confusion, And A Path Forward, Emily A. Largent, Holly Fernandez Lynch

Yale Journal of Health Policy, Law, and Ethics

The practice of offering payment to individuals in exchange for their
participation in clinical research is widespread and longstanding. Nevertheless, such payment remains the source of substantial debate, in particular about whether or the extent to which offers of payment coerce and/or unduly induce individuals to participate. Yet, the various laws, regulations, and ethical guidelines that govern the conduct of human subjects research offer
relatively little in the way of specific guidance regarding what makes a payment offer ethically acceptable-or not. Moreover, there is a lack of definitional agreement regarding what the terms coercion and undue inducement mean in ...


Revisiting Incentive-Based Contracts, Wendy Netter Epstein Dec 2017

Revisiting Incentive-Based Contracts, Wendy Netter Epstein

Yale Journal of Health Policy, Law, and Ethics

Incentive-based pay is rational, intuitive, and popular. Agency theory tells us
that a principal seeking to align its incentives with an agent's should be able to simply pay the agent to achieve the principal's desired results. Indeed, this strategy has long been used across diverse industries-from executive compensation to education, professional sports to public service-but with mixed results. Now a new convert to incentive compensation has appeared on the
scene: the United States' behemoth health-care industry. In many ways, the incentive mismatch story is the same. Insurance companies and employers are concerned about constraining the cost of care ...


A Breakthrough With The Tpp: The Tobacco Carve-Out, Sergio Puig, Gregory Shaffer Mar 2017

A Breakthrough With The Tpp: The Tobacco Carve-Out, Sergio Puig, Gregory Shaffer

Yale Journal of Health Policy, Law, and Ethics

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 Mar 2017

An Evidence-Based Objection To Retributive Justice, Brian T.M. Mammarella

Yale Journal of Health Policy, Law, and Ethics

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 ...


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, Joseph J. Fins Mar 2017

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, Joseph J. Fins

Yale Journal of Health Policy, Law, and Ethics

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 ...


Reimagining The Risk Of Long-Term Care, Allison K. Hoffman Mar 2017

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

Yale Journal of Health Policy, Law, and Ethics

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 ...


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 Aug 2016

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

Yale Journal of Health Policy, Law, and Ethics

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 ...


Health And Taxes: Hospitals, Community Health And The Irs, Mary Crossley Aug 2016

Health And Taxes: Hospitals, Community Health And The Irs, Mary Crossley

Yale Journal of Health Policy, Law, and Ethics

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 ...


The Fitbit Fault Line: Two Proposals To Protect Health And Fitness Data At Work, Elizabeth A. Brown Aug 2016

The Fitbit Fault Line: Two Proposals To Protect Health And Fitness Data At Work, Elizabeth A. Brown

Yale Journal of Health Policy, Law, and Ethics

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 ...


The Quest For Global Justice In Health: A Review Of Global Health Law By Lawrence 0. Gostin, Octavio Gomez-Dants, Julio Frenk Oct 2015

The Quest For Global Justice In Health: A Review Of Global Health Law By Lawrence 0. Gostin, Octavio Gomez-Dants, Julio Frenk

Yale Journal of Health Policy, Law, and Ethics

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 Oct 2015

In The Nick Of Time: Using The Reasonable Promptness Provision To Challenge Medicaid Spending Cutbacks, Jeffrey Chen

Yale Journal of Health Policy, Law, and Ethics

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, Jonathan J. Darrow Oct 2015

Hatch-Waxman Turns 30: Do We Need A Re-Designed Approach For The Modern Era?, Aaron S. Kesselheim, Jonathan J. Darrow

Yale Journal of Health Policy, Law, and Ethics

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 ...


Responding To Public Health Emergencies On Tribal Lands: Jurisdictional Challenges And Practical Solutions, Justin B. Barnard Oct 2015

Responding To Public Health Emergencies On Tribal Lands: Jurisdictional Challenges And Practical Solutions, Justin B. Barnard

Yale Journal of Health Policy, Law, and Ethics

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 Oct 2015

Health Affairs Blog Post: Challenges For People With Disabilities Within The Health Care Safety Net, Michael R. Ulrich

Yale Journal of Health Policy, Law, and Ethics

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 Oct 2015

Medicare, Medicaid, And Pharmaceuticals: The Price Of Innovation, Daniel J. Kevles

Yale Journal of Health Policy, Law, and Ethics

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, Galen Benshoof Oct 2015

Health Affairs Blog Post: 1332 Waivers And The Future Of State Health Reform, Heather Howard, Galen Benshoof

Yale Journal of Health Policy, Law, and Ethics

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 Oct 2015

Health Affairs Blog Post: Social Insurance Is Missing A Piece: Medicare, Medicaid, And Long-Term Care, Judy Feder

Yale Journal of Health Policy, Law, and Ethics

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 Oct 2015

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

Yale Journal of Health Policy, Law, and Ethics

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 ...


Clash Of The Titans: Medicaid Meets Private Health Insurance, Sara Rosenbaum Oct 2015

Clash Of The Titans: Medicaid Meets Private Health Insurance, Sara Rosenbaum

Yale Journal of Health Policy, Law, and Ethics

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 Oct 2015

Medicaid At 50: No Longer Limited To The "Deserving" Poor?, David Orentlicher

Yale Journal of Health Policy, Law, and Ethics

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.