The papers in this special issue of the JLME were given at the 43rd annual Health Law Professors Conference at Loyola University Chicago in June 2019. The ASLME-sponsored Health Law Professors Conference has become the capstone meeting for academics in the field, bringing together colleagues from numerous universities throughout North America and beyond. The two-and-half-day meeting features a wide assortment of presentations and panels that collectively provide a comprehensive portrait of the field of health law and policy. While much of the scholarship presented at the Health Law Professors meetings finds its way into the legal and health science literature, this symposium issue breaks new ground by offering a representative sample of some of the outstanding works presented at the June 2019 meeting. The goal of this special issue that showcases eight paper presentations from the ASLME meeting is to offer a synopsis of key scholarly directions being pursued in the health law academy, and in so doing provide readers with a sense of the ever widening parameters of this discipline. The papers selected reflect only some of the many subjects presented, but each offers new perspectives on major topical areas being researched in the field.
The first paper in this volume written by multi authors is based on a presentation made by Professor Thaddeus Pope concerning the widely used neurological determination of death standard. The piece highlights difficulties in the application of criteria underpinning the death standard, as well as other problems in addressing family and religious objections. Interpretative and judicial inconsistencies in the application of the Uniform Determination of Death (UDDA) are considered. The authors posit a number of changes that address ambiguities in the UDDA, as well as assist in clarifying state laws and policies concerning neurological death determinations.
Two papers in this volume concern legal issues affecting major population groups. In a paper dealing with the growing population of those suffering from dementia, Professor Megan Wright discusses the use of supportive decision making as a mechanism to foster patient participation in their care. Under the Americans with Disabilities Act (ADA), dementia patients are protected from discrimination and must be afforded necessary accommodations to allow them to be involved in their care. The author argues that supportive decision-making, an alternative to guardianship and surrogacy, adopted in a handful of states, is a viable alternative to promotes autonomy and respect for members of this population. Professor Aila Hoss focuses on a very different type of population in her paper that concerns public health and Native Americans. Hoss acknowledges that it is widely recognized that established social determinants of health (i.e., housing, education, politics, etc.) have had very strong negative impacts on American Indians and Alaska Natives. The paper adopts a broader view of social determinants of health and focuses on the law as a structural determinant of health. The argument is made that the American Indian legal system including doctrines of sovereignty, title, trust, etc., has collectively marginalized native populations, and in so doing is, in and of itself, a contributing factor in sparking negative health outcomes.
There are two papers in the volume concerning the regulation and resultant pricing challenges of pharmaceutical and biological products. An article by Professors Haffajee and Frank addresses the barriers that exist in finding affordable medications to treat opioid use disorders. The authors argue that anti-competitive practices by a brand name manufacturer has resulted in maintaining higher prices and hindered entry of generic drugs into this market. Haffajee and Frank suggest several legislative and regulatory fixes and present an economic model to validate their cost saving projections. Professor Yaniv Heled in his article on biologics addresses the need to create competition to stimulate price decreases in this market akin to reductions experienced through use of generic drugs. Yaniv argues that meaningful change in biologics' pricing is promoted by making original product information available to follow-on manufacturers. The regulatory reforms suggested in the biologics market are drawn from the current regime that is used by the Environmental Protection Agency (EPA) for oversight of pesticides.
The article by Professor Sallie Sanford focuses on a seldom-discussed aspect of the affordable Care Act, its coverage implications for 1.7 million uninsured higher education students. While the ACA provides college and university students several coverage options, the single most important source of health insurance under this law can be attributed to Medicaid, particularly in expansion states. Student involvement in Medicaid highlights the greater universality of participation characterizing the program more recently, and raises questions about how a young, educated population can be integrated into a public insurance scheme designed to serve low-income populations. The paper also considers how the student Medicaid enrollees will fare under Trump era reform efforts. In particular, the author explores the adoption of Medicaid work requirements, as well as the Administration's support of alternative short-term limited duration health insurance plans.
While much of the scholarship presented at the Health Law Professor's meetings finds its way into the legal and health science literature, this symposium issue breaks new ground by offering a representative sample of some of the outstanding works presented at the June 2019 meeting. The goal of this special issue that showcases eight paper presentations from the ASLME meeting is to offer a synopsis of key scholarly directions being pursued in the health law academy, and in so doing provide readers with a sense of the ever widening parameters of this discipline.
The paper by Professor Deborah Farringer focuses on the issue of cybersecurity in health care settings. The piece explores the nature of cybersecurity problems and the various steps taken to address them. In particular, the work of the Health Care Industry Cybersecurity Taskforce is explored, highlighting central themes in the Taskforce's 2017 Report that point out fundamental deficiencies in infrastructure and regulation that transcend specific flaws in security policies. While progress has been made through measures, such as those enacted in the 21st Century Cures Act, Farringer argues that vulnerabilities in cybersecurity will persist unless resources are shared across a broader spectrum of actors. The final section of the paper posits that cybersecurity reform must be linked to wider measures that promote use of integrated delivery models and position this issue within the context of broader reform measures.
The last paper in this volume by Professors Mohapatra and Wiley builds on the growing interests in exploring social epidemiology in public health law. The authors apply the lenses of feminist legal theory to explore a number of key health law topics. Specific theoretical frameworks such as relational autonomy, critique of the public/private divide and vulnerability theory serve as foundations for discussion. The piece makes the case that a feminist perspective is a helpful tool for analysis of not only gender related matters but can inform discourse on a wide array of health law matters (i.e., choice, quality, access). Mohapatra and Wiley focus their exploration of feminist theory in three broad areas, patient choice and autonomy; patriarchy, power and patient safety; and access to health care and healthy living conditions at the public-private divide. The paper argues that application of feminist theory to health law can spark critical dialogue, as well as act broadly as a mechanism to combat injustices in both gender and health generally.
I hope that you find this collection of health law papers interesting and provocative. I am grateful to all the authors for their outstanding contributions and for JLME for agreeing to extend the reach of the 2019 Health Law Professors meeting to this volume. Special thanks to Professor Larry Singer, Director of Loyola's Beazley Institute, for conceiving and guiding the idea of this special issue to fruition. I am pleased that we are able to celebrate the field of health law and be a part of the long scholarly legacy that started so many years ago in 1973 with ASLME's publication of the Medicolegal News.