Next week, the 110th AALS Annual Meeting starts in New York. I have collected those events at the meeting that relate to health law.
Thursday
(Jan. 7) - 1:30 to 3:15P
Hilton,
Gramercy West, 2nd Floor
Aging
and the Law
Challenging
Assumptions About Caregiving
In
this session, a diverse group of legal scholars will help reimagine how the law
might support both older adults and care providers by challenging common
assumptions about caregiving relationships. Specifically, participants will
challenge assumptions about the identity of caregivers, the scope of caretaking
responsibilities, compensation for care providers, and the impact of
traditional approaches to caring for older adults. Topics of discussion will
include: (1) the role and legal treatment of non-family care providers,
especially in relation to care for LGBT elders, (2) the “taboo” needs of care
recipients including needs related to sexual intimacy; (3) the “myth” that
surrogate decision-making and guardianship protects older adults; and (4) the
Medicaid program’s hidden penalties for those who employ family members as care
providers.
Speaker:
Alexander A Boni-Saenz, Chicago-Kent College of Law, Illinois Institute of
Technology
Moderator:
Roberta K. Flowers, Stetson University College of Law
Speaker:
Kristin B. Glen, City University of New York School of Law
Speaker:
Nancy J. Knauer, Temple University, James E. Beasley School of Law
Speaker:
Nina A. Kohn, Syracuse University College of Law
Thursday
(Jan. 7) - 3:30 to 4:45P
Hilton,
Nassau West, 2nd Floor
Law,
Medicine and Health Care
Works-In-Progress
for New Law School Teachers
Contracting for Results in Health Care?
Wendy Netter Epstein
Tackling the Social Determinants of
Health: A Central Role for Providers
Jessica Mantel
Elizabeth Y. McCuskey
Body of Preemption: Vestigial Presumptions in Health Law’s
Preemption Jurisprudence
Contracting for Results in Health Care?
Wendy Netter Epstein
The
American health care industry has long struggled with its high cost-low quality
problem. Although the causes are
complicated, an incentive mismatch is at least partially to blame. Insurance companies and employers that
subsidize insurance premiums care about the cost of care, while patients—who do
not experience the true cost of care—focus ostensibly on quality. Physicians are the odd ones out. They are paid by volume of care and thus
focus little on constraining systemic costs.
Some believe physicians also care insufficiently about quality. This mismatch, in part, results in a high
cost system that ranks last in most measures of quality amongst other
industrialized nations.
A
new, much hailed solution, firmly embraced in the Affordable Care Act, is to
align incentives by changing the compensation model. Pay doctors for cutting costs and achieving
certain predefined quality metrics, rather than just for providing more
care. Parties from both sides of the
aisle and across the public and private sectors have embraced this model. In fact, the Department of Health and Human
Services recently announced a surprisingly aggressive goal of having 85 percent
of volume-based provider payments moved to value-based arrangements by
2016.
The
theory sounds rational and intuitive: contract to pay for the results we
want. Use quality metrics that are
specific, concrete, can be specified ex ante, and are easy to monitor ex
post. Essentially, write better,
more-detailed contracts. The approach
should work, particularly if doctors are generally selfish, profit-driven, and
looking for opportunities to shirk.
But
early tests of this new payment model have yielded mixed results. This Article applies insights of the legal
and behavioral literature on optimal contract specificity to the problem. It suggests that the prevailing approach may
be appropriate in some instances, particularly where simple compliance is the
goal rather than creative and innovative solutions. But successful implementation requires drawing
a more nuanced line between compliance-oriented tasks and discretion-oriented
tasks, not employing a blunt tool industrywide.
This Article makes some preliminary suggestions about how to draw that
important line and urges a closer look at the likely effects of
performance-based compensation in various health contexts.
Tackling the Social Determinants of
Health: A Central Role for Providers
Jessica Mantel
Americans’
poor health and high health care costs largely stem from social, environmental,
and behavioral factors that adversely impact health. Yet health care providers
traditionally have neglected the social determinants of health, focusing
instead on medically treating patients’ symptoms. As a result, addressing the
social determinants of health has primarily been the domain of government and
community groups. Unfortunately, the efforts of the public health and social
services sectors are stymied by chronic underfunding, a situation unlikely to
change in the current political environment. This article identifies a
potential backdoor solution to this problem — recent health care reforms that
encourage health care providers to move beyond traditional medicine and give
greater attention to the social determinants of poor health. Unfortunately,
providers lack the incentives and capacity to independently address many of the
root causes of poor health. Effecting far-reaching changes in the social
determinants of health instead will require providers to join forces with other
sectors across a broad range of initiatives designed to improve the
population’s health.
Elizabeth Y. McCuskey
Body of Preemption: Vestigial Presumptions in Health Law’s
Preemption Jurisprudence
Preemption
and regulation go hand-in-hand, deploying the Supremacy Clause to displace
state regulation with federal when Congress so intends and/or when the two
authorities conflict in some meaningful way.
Preemption doctrine plays a particularly prominent role in health law,
as local, state, and federal regulatory authorities jostle and grapple with
problems of treatment, access, finance, and community health and safety. A brief catalog of health law preemptions
reveals that health regulations are unusually saturated with and shaped by the
various forms of
preemption. These health law preemptions
have traveled a sometimes twisted path through the courts, provoking preemption
pronouncements that have been both friend and foe to effective health
reform. This article questions the
foundations and applications in health law of a central feature in preemption
jurisprudence: the presumption against
preemption.
Courts
base the presumption, transsubstantively, on a foundation of federalism – that
a federal intrusion on state regulatory authority is structurally suspicious
and therefore requires stringent review.
But, as applied to health laws in particular, courts invoke the
presumption not solely
on federalism concerns, but also on an assumed “history” or “tradition” of
state primacy in the health and safety regulation fields. This historically-based presumption demands
Congress speak “clearly and manifestly” to make its health laws
preemptive.
The
presumption against preemption in health law thus rests on two shaky legs: one constitutional and the other
historical. The constitutional leg,
scholars have argued for over a decade, is hamstrung by the language and
context of the Supremacy Clause itself, which makes duly-enacted
federal statutes the law of the land without reservation. The Supreme Court has retained and recently
doubled-down on the presumption, despite these constitutional critiques. But no scholar or court has yet dissected the
additional historical basis for the presumption in the vast
jurisprudence of health law preemption.
This article scrutinizes health law preemption’s second leg,
investigating the “history” and “tradition” of federal health regulation, as
well as the inherent instability of an interpretive presumption standing on
this foundation.
The
survey of federal health laws in this article suggests that the historical
balance of federal and state health regulation is not nearly so lopsided as to
require Congress state preemptive intent “clearly and manifestly” – essentially
heightened pleading for health legislation.
And while the “history” of health law starts with state primacy over
health regulations, the “tradition” has steadily and significantly eroded that
primacy in favor of federal authority.
The article thus finds this basis in “tradition” to be inaccurate, but
also unstable. As the balance of federal
and state regulatory authority shifts, at what point is the “tradition” is
upended? And would that dissolve the
jurisprudential presumption? As a
jurisprudential principle, the presumption against health law preemptions
depends then on the accuracy of historical characterizations, as well as a
malleable
notion of regulatory “tradition” in health and safety.
Ultimately,
this project advocates that the “historical” presumption against preemption in
health law should be retired. Its
incantation through precedent is unwarranted and it does not pave a path toward
a more coherent and effective health law jurisprudence. Rather, principles of statutory construction,
stripped of the presumption’s “tradition” gloss, adequately and accurately
reflect allocate regulatory authority over matters of health and safety.
Friday
(Jan. 8) - 8:30 to 10:15A
Hilton,
Murray Hill West, 2nd Floor
Law
and Mental Disability, Co-Sponsored by Disability Law
The
ADA at 25: Implications for People with Mental Disabilities
The Americans
with Disabilities Act of 1990 (the “ADA”) is now 25 years old. Its sweeping
prohibitions and mandates have, both figuratively and literally, restructured
American society. Some argue that it went too far; some not far enough. Still
others advocate change in different directions. This panel focuses on one
category of protected individuals: people with mental disabilities. Though
there may be fewer physical barriers for this group, social barriers like
stigma and tolerance for discrimination are generally more pronounced. We take
stock of what the ADA and its amendments have accomplished for people with
mental disabilities and what has been left undone.
Speaker:
Mr. Ira Burnim, Judge David L. Bazelon Center for Mental Health Law
Speaker:
Robert D. Dinerstein, American University, Washington College of Law
Speaker
from a Call for Papers: Jasmine Elwick Harris, University of California, Davis,
School of Law
Moderator:
Fredrick E. Vars, The University of Alabama School of Law
Friday
(Jan. 8) - 10:30 to 12:15A
Hilton,
Nassau West, 2nd Floor
Law,
Medicine and Health Care, Co-Sponsored by Disability Law
Medicaid
Challenges
This
session will address challenges to Medicaid availability and access and what
legal means might be available to meet these challenges.
Papers
will be published in the Saint Louis University Journal of Health Law &
Policy.
Moderator:
Leslie P. Francis, University of Utah, S. J. Quinney College of Law
Speaker:
Laura Hermer, Hamline University School of Law
Speaker:
John V. Jacobi, Seton Hall University School of Law
Speaker:
Ms. MaryBeth Musumeci, Kaiser Family Foundation
Speaker:
Sidney D. Watson, Saint Louis University School of Law
Friday
(Jan. 8) - 1:30 to 3:15A
Hilton,
Nassau West, 2nd Floor
Biolaw,
Co-Sponsored by Law, Medicine and Health Care
Next
Generation Sequencing, Precision Medicine, and the Future of Health Care
The
pace of innovation in medicine and health care is accelerating. The first human
genome was sequenced at a cost of almost three billion dollars and 13 years.
The rapid progress in next generation sequencing has enabled an individual
genome to be sequenced at a cost of one thousand dollars in less than three
days. Next generation sequencing is transforming disease diagnosis, drug
development, and the practice of medicine. This program will explore many of
the legal issues raised by the parallel developments of sequencing technology,
massive databases of electronic medical records, and bioinformatics. The FDA
has begun to change its regulatory approach to laboratory testing and
diagnostics, pharmaceutical companies are changing their approach to drug
development, and doctors are scrambling to understand and adjust to the changes
in science and technology. Anyone interested in the interaction of law and
technology or the future of health care is encouraged to attend.
Speaker:
Mr. Toby Bloom, The New York Genome Center
Moderator:
Robert A. Bohrer, California Western School of Law
Speaker
from a Call for Papers: Jorge Contreras, University of Utah, S. J. Quinney
College of Law
Speaker:
Barbara J. Evans, University of Houston Law Center
Speaker:
Eileen M. Kane, The Pennsylvania State University – Penn State Law
Speaker
from a Call for Papers: Jordan Paradise, Seton Hall University School of Law
Friday
(Jan. 8) - 1:30 to 3:15A
Hilton,
Sutton Center, 2nd Floor
Disability
Law, Co-Sponsored by Law and Mental Disability, Law, Medicine and Health Care
The
Wounded Warrior Comes Home: Exploring the Impact of Disabled Veterans on
Disability, Health, and Other Law and Policy
About
a century ago, returning war veterans with disabilities helped shift cultural
and legal attitudes from the charitable model to the rehabilitation model.
Today’s soldiers often survive injuries that would have been fatal in prior combat
engagements, leaving them with even more significant physical impairments.
There is also a growing understanding of the scope of mental impairments
associated with military service. At the same time, disability has shifted from
something personal that the individual must work to overcome, to something
largely attributable to societal choices. We now recognize equal opportunity
for individuals with disabilities is a matter of civil rights. Veterans with
disabilities may once again play a significant role in shaping the future of
disability rights law and health care norms. Beyond those topics, veterans with
disabilities may affect criminal law, employee benefits law, and tax law, to
name a few. This panel will explore the contemporary impact of veterans with
disabilities on our law, including how law and policy can be more responsive to
their needs and the needs of those with whom they interact, and how their
unique status may inform various normative conversations.
Moderator:
Cheryl L. Anderson, Southern Illinois University School of Law
Speaker
from a Call for Papers: Rabia Belt, Georgetown University Law Center
Speaker
from a Call for Papers: Dr. Isis Marrero, University of South Florida College
of Medicine
Speaker:
Ms. Jennifer Sheehy, U.S. Department of Labor
Speaker
from a Call for Papers: Stacey-Rae Simcox, Stetson University College of Law
Saturday
(Jan. 9) - 8:30 to 10:15A
Hilton,
Murray Hill West, 2nd Floor
Employee
Benefits and Executive Compensation, Co-Sponsored by Law, Medicine and Health
Care
The
State of the ACA After King v. Burwell
Health
Law and ERISA experts will discuss the state of Obamacare following the Supreme
Court's decision in King v. Burwell with a focus on the continued viability of
the statute.
Papers
will be published in the Journal of Employee Rights and Employment Policy.
Speaker:
Jonathan H. Adler, Case Western Reserve University School of Law
Speaker:
Nicole Huberfeld, University of Kentucky College of Law
Moderator:
Maria O'Brien Hylton, Boston University School of Law
Speaker:
Colleen E. Medill, University of Nebraska College of Law
Speaker:
Natalya Shnitser, Boston College Law School
Saturday
(Jan. 9) - 1:30 to 3:15P
Hilton,
Sutton Center, 2nd Floor
AALS
Academy Program
Incorporating
Medical-Legal Partnership Into Your Law School's Triple Aim: Education,
Research, and Community Engagement
Medical-Legal
Partnership (MLP) is a health care delivery model that recognizes that some
barriers to good health have legal solutions. For example, a child suffering
from asthma may require legal representation to force a landlord to address the
mold or other adverse housing conditions that are exacerbating her condition.
Other areas where unmet legal needs create barriers to good health include public
benefits, employment, insurance, interpersonal violence, immigration,
end-of-life, and education. In an MLP, legal care and health care are
integrated, allowing lawyers to engage in preventive legal services that impact
the health of especially vulnerable populations. Traditionally, MLPs have been
forged between community healthcare providers and lawyers that work for legal
aid organizations or law firm pro bono departments. But law schools have much
to contribute to and gain from these partnerships. This program will introduce
law faculty to MLP and its potential to further the educational, research, and
community engagement/social justice missions of their schools. In addition to
law school faculty currently engaged in MLP, the panel will also offer
perspectives from the National Center for MLP and a law school dean regarding
the benefits of MLP to legal education.
Speakers
Speaker:
Sylvia Caley, Georgia State University College of Law
Moderator:
Vicki W. Girard, Georgetown University Law Center
Speaker:
Blake D. Morant, The George Washington University Law School
Speaker:
Professor Joel Teitelbaum, The George Washington University Department of
Health Policy and Management
Date
& Time