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Health Law
Section Newsletter
Winter 2009

Chair:

Ross D. Silverman, JD, MPH

rsilverman@siumed.edu

 

Editor:

Benjamin Mason Meier, JD, LLM, MPhil

bmm2102@columbia.edu

Message from the Chair

Welcome to the Winter 2009 edition of the Health Law Special Primary Interest Group Newsletter.  It was wonderful to see so many Health Law SPIG members at the Annual Meeting in San Diego in late October.  There were outstanding ideas, lively exchanges and good crowds at the SPIG-sponsored sessions, and great turnout and discussion at the annual business meeting as well.  Thank you to all of the presenters, moderators, and especially to our Annual Meeting program chair — Heather McCabe of Indiana University-Indianapolis — for putting together another successful program.  Thank you also to all of those who introduced themselves to me and offered to help the SPIG with its continued growth and outreach in the coming year.  I look forward to another great Annual Meeting this November in Philadelphia.

 

The new year has brought with it great changes and challenges.  The first few weeks of the new administration have brought mixed results to the public health community — on the one hand, expansion of the State Children’s Health Insurance Program was finally able to be signed into law; on the other hand, the bleak economic picture portends significant strain on local, state and the federal budgets, as well as the public health system and our social safety net.

 

President Obama, as well as key Democratic members of the House and Senate, also promise to make comprehensive health care reform a signal policy issue in the coming year.  At this time, there are several proposals being circulated, and it is unclear what the ensuing debate will produce.  However, these discussions would be well-served to be guided by the leading health law scholars who contributed to the “Legal Solutions in Federal Health Reform” project described below.  Thank you to our colleagues at the O'Neill Institute for National and Global Health Law at Georgetown University Law Center for contributing the summary of these critical concerns.

 

This issue of the newsletter also includes the latest news and notes from health law SPIG members and friends from around the country.  Thank you as always to Benjamin Meier of Columbia University for his continued stewardship of the Newsletter.

 

Be well,

 

Ross D. Silverman, JD, MPH

Chair, Health Law SPIG

Professor and Chair

Department of Medical Humanities

Southern Illinois University School of Medicine

rsilverman@siumed.edu

2009 APHA Call for Abstracts

Health Law SPIG

 

APHA will hold its 137th Annual Meeting in Philadelphia on Nov. 7 – 11, 2009.  Please see the Health Law Special Primary Interest Group (SPIG) Call for Abstracts below.  We hope to see you in Philadelphia!

 

Health Law Special Primary Interest Group (SPIG) sessions provide an opportunity to present to APHA members your research, analysis and perceptions of topics relating to Health Law and Policy. The Health Law SPIG encourages submission of abstracts related to this year's Annual Meeting theme, "Water and Public Health"; however, abstracts on other timely topics related to health law and policy also are welcome. The topics listed below are intended as general categories for submission of abstracts. The final focus (and titles) of the panel sessions for the conference will depend on the abstracts that are received. With that in mind, please submit your abstract under the topic that is most relevant.

         

·        Federal-State Conflicts in Public Health Law

·        Free Speech and Public Health Regulation

·        Global Health Governance

·        Health Care Reform under a New Administration

·        Health Disparities and the Law

·        Mental Health and the Law

·        Public Health Research Legal and Ethical Issues

·        Water and Law

 

We highly recommend drafting the abstract and learning objectives offline in a word document so you can edit them before pasting into the submission form. When submitting abstracts PLEASE take the time to be sure you have completed all the fields. Keep in mind that:

 

·  Abstracts are limited to 250 words.

·  Learning objectives must also be submitted, but separate from the descriptive abstract.

·  The time allotment for presentations in our panels is usually 15-20 minutes.

·  We must have your name and contact information, including an e-mail address for automatic receipt of notices regarding your abstract and session.

·  We need to know if you are a new presenter.

·  We need to know what AV you require. PowerPoint support will be available, however, use of slides require rental fees for the AV equipment.

·  You must respond to the question regarding significant financial interests.

 

Abstracts can be submitted at http://apha.confex.com/apha/137am/oasys.epl.

 


2008 Annual SPIG Business Meeting

Attendees:  Ross Silverman, Benjamin Meier, Heather McCabe, Lance Gable, Angie McGowan, Arianne Spaccarelli, Chris Hager, Kerri McGowan Lowrey, Jessica Berg, Jennifer Pomeranz, Michele Simon, Rob Moore

 

Ross Silverman, Chair, called the meeting to order. 

 

The group discussed the transition from SPIG to Section status.  The consensus was to continue to work to grow the membership and to begin putting the structure in place for the SPIG to become a Section as soon as the numbers would allow.

 

The group discussed whether or not the SPIG should support an end of life resolution to be put before APHA.  The members present voted to decline to comment on the resolution given:  1) the information was not received in time to really consider the contents; and 2) the information had not been put to the full SPIG membership for even a chance to comment due to the short timeframe in which we received the request.

 

The Chair brought up the topic of the mission of the SPIG.  There was a short discussion.  The issue was tabled for future meetings, but the members present did indicate a willingness to continue the discussion at a later date.

 

The members present re-elected the Chair (Ross Silverman), the Program Planner, (Heather McCabe), and the Newsletter Editor (Benjamin Meier) to their positions.  Many members present offered to assist in program planning and will be included in the abstract review process.

 

Topics proposals for 2009:

           Federalism and Preemption

           Water and Law

           Behavior of Policy Makers (Culture, Social Norms, and Policy)

           History of Public Health Law

           Health Care Reform under a New Administration

           Local Boards of Health and the Law

           State and Federal Conflicts in Public Health Law

           Global Health Governance

           Legal and Ethical Issues in Public Health Research

           Mental Health and the Law

           Public Health Disparities and the Law

           Trade and Health

           Commercialization of Water

           The First Amendment and Public Health Marketing

           Corporate Speech or Free Speech

           Student Presentations

 

In addition to discussing topics for the program, the group also discussed the SPIG's larger role in lobbying, resolutions, and education within APHA.  In addition, it was suggested that when Health Law SPIG members present in other sections or SPIGs, the information be given to our members.  Additionally, the members agreed that the SPIG should be affirmatively looking to work with other groups within APHA.

Health Law in the News

 

Legal Solutions in Federal Health Reform

O’Neill Institute for National And Global Health Law

Georgetown University Law Center

 

In an effort to frame and study legal challenges and solutions associated with federal health reform, the O’Neill Institute for National and Global Health Law at Georgetown University has undertaken the “Legal Solutions in Health Reform” project, funded by a grant from the Robert Wood Johnson Foundation.  This project aims to identify practical, workable solutions to the kinds of critical legal issues that may arise in any upcoming federal health reform debate. 

 

After extensive consultation, we chose nine key legal issues pertinent to health reform.  Nine nationally recognized experts were recruited to draft papers on each of these topics for dissemination by December 2008.  In developing the papers, the authors consulted with experts and knowledgeable advisors representing a wide range of health sector and political interests.  Each of these papers is organized with a brief introduction of the topic and the issue; the state of the current law; problems that arise because of this law; and potential solutions to the problem.    

 

1. Executive Authority – While much of health care reform takes place through legislation, a substantial portion of governing can and has been carried out through executive authority and the actions of administrative agencies. The President can use numerous regulatory and administrative tools, such as executive and administrative orders, to reshape federal health care programs. Legal issues arise as to the extent and scope of this authority and where the authority is strongest under current law.

 

2. Individual Mandates – Many health care reform proposals include mandates requiring individuals and employers to purchase health insurance.  An examination of whether such a requirement violates any constitutional provisions and is within the powers of Congress to enact can help design a mandate that is most likely to be safe from challenge. 

 

3. Insurance Exchanges – Presidential candidates and policy-makers have made comprehensive reform proposals involving the creation of new market options through insurance exchanges (akin to Massachusetts’ Connector).  Whether organized at the federal or state level or as a private entity, an insurance exchange requires a constitutional and legal analysis to determine whether restrictions on insurers and insurance providers would withstand legal challenge.

 

4. Privacy and Security of Information (HIPAA) – State and federal laws governing the privacy of personal information (PHI) have left the legal landscape unclear as to who has access to personal health information, for what purposes, and under what circumstances. Any efforts to reform the nation’s health systems and increase health IT must address the legal concerns surrounding the privacy and security of PHI and resolve issues with the Health Insurance Portability and Accountability Act (HIPAA).

 

5. Definition of Health Insurance During discussions of health care reform, policy-makers and legislators use key terms to illustrate systemic problems of the health care market.  However, there are no clear and uniform definitions of what it means to be uninsured or what coverage constitutes health insurance.  A single coherent definition of key terms and programs involved in the system is required for regulation of the health care system and for elements such as tax benefits or subsidies to be implemented effectively.

 

6. Insurance Discrimination on the Basis of Health Status Discrimination based on an individual’s health status in the insurance industry can occur at either the point of enrollment or in decisions regarding scope of coverage.  Federal laws, such as civil rights laws, tax laws, and labor laws, have focused on the former and limit the ability of insurers to bar enrollment based on health status.  However, questions persist about the coverage of and interaction among several federal statutes, including Title VII, HIPAA, the Americans with Disabilities Act (ADA), the newly-passed Genetic Information Nondiscrimination Act (GINA), and the Mental Health Parity Act.  These questions should be clarified for employers, insurers, and individual consumers alike.  

 

7. ERISA – The Employee Retirement Income Security Act (ERISA) is central to health reform efforts as it encompasses a wide range of regulations in health care and implicates both federal and state interests.  Some current proposals advocate legal flexibility to encourage state experimentation in health insurance regulation, but the reach and legal status is largely uncertain because of the ERISA’s broad preemption power.  This places a burden on the federal government to act, either by amending ERISA to allow more state regulation or by enacting comprehensive national health care reform. 

 

8. Health Reform and the Tax Code – Several recent proposals, including those by the current administration and by Senators Wyden and Bennett, have proposed changes to the tax code to promote the availability of health insurance and the types of insurance consumers choose. Changes include refundable tax credits, tax incentives, and other subsidies. While the law seems to allow variation in the tax code to support these proposals, policy questions remain regarding difficult administrative and implementation concerns.

 

9. Purchase of Insurance Across State Lines – Recent proposals, such as HR 4460 and Senator McCain’s outlined plan, have called for revising current federal law to allow individuals to purchase insurance from any state they choose.  Any federal proposal to allow the sale of insurance across state lines would need to be carefully drafted to ensure that it did not run afoul of the McCarran-Ferguson Act (designating states as the primary regulators of the business of insurance) or compel state officials to implement federal regulation (commandeering).  


Institutional Changes

 

NIH awarded Boston University a grant to establish a Clinical and Translational Research Science Institute (BU Bridge); see http://www.bumc.bu.edu/ctsi/D3RegulatoryKnowledgeEthics .  Professor Wendy Mariner is Co-Director of the Institute’s Regulatory Knowledge and Research Ethics division, and Professors George Annas, Leonard Glantz, Michael Grodin, and Patricia Roche are affiliated faculty members.

 

Indiana University School of Law – Indianapolis, William S. and Christine S. Hall Center for Law and Health hosted a debate on Oct. 29, 2008 on the role of government and the market in ensuring universal health care coverage. Participating in the debate were David Hyman, Professor of Law & Medicine at University of Illinois, and Aaron Carroll, Assoc. Professor of Pediatrics at the IU School of Medicine. Future debates are being planned.

 

New Publications

Books, Articles, Reports, and Internet Resources

 

James Hodge and Evan D. Anderson, at the Centers for Law and the Public’s Health: A Collaborative at Johns Hopkins and Georgetown Universities, are pleased to note the recent publication of our manuscript, Principles and Practice of Legal Triage during Public Health Emergencies, in the NYU Annual Survey of American Law.  The full text of the article – which presents and describes the concept of “legal triage” as a critical, but often overlooked component of emergency legal preparedness – is available at: http://www1.law.nyu.edu/pubs/annualsurvey/issues/issue_v64_2.html.  

 

Embedding the Human Right to Health Care in U.S. State Constitutions - Neither the U.S. federal nor state governments have recognized the human right to health care. Given the nature of the federal system, state constitutions are a viable vehicle for implementing international standards, and advocates in several states have carried out campaigns for state constitutional amendments on the right to health care. A review of these initiatives, prepared by the National Health Law Program (NHeLP) and the National Economic and Social Rights Initiative (NESRI), looks at constitutional language examples and political strategies, identifies key challenges faced by advocates, and offers lessons learned for future efforts to amend state constitutions. The Human Right to Health Program, run by NHeLP and NESRI, develops tools for human right to health care advocates and is currently supporting an amendment initiative for the right to health care in Montana. The publication is available at http://www.nesri.org/programs/Constitutional_Amendment_Report_2-09.pdf or contact Anja Rudiger at anja@nesri.org, (212) 285-1723.

 

Edward P. Richards, Director of the LSU Law Center's Program in Law, Science, and Public Health, has published the electronic Health and Public Health Law Guide. The Guide is a public service project to provide health and public health law information to the public, practitioners, and for use in public health law courses. The Guide will be updated and expanded through time, and will be available in a printable form, as well as on the Internet. The URL is: http://biotech.law.lsu.edu/map/index.htm . This is part of the Medical and Public Health Law Site: http://biotech.law.lsu.edu/

 

Lance Gable presented on two panels at the APHA Annual Meeting in San Diego on Oct. 27, 2008. The presentations were on "The Proliferation of Human Rights in Global Health Governance" and "The Right to Mental Health and Other Related Human Rights: Involuntary Detention in Psychiatric Hospitals." He also conducted a lecture (via teleconference) for the World Health Organization's International Diploma on Mental Health and Human Rights, University of Pune, India on "Criminal Law and Mental Disorder." He also published a chapter with coauthor James G. Hodge Jr. entitled "Public Health Law and Biological Terrorism," in Beyond Anthrax: The Weaponization of Infectious Diseases 239-252. (Larry I. Lutwick & Suzanne M. Lutwick eds.). Professor Gable was awarded a grant from the Michigan Department of Community Health, Office of Public Health Preparedness, to study and develop guidance for ethical allocation of scarce medical resources during public health emergencies. He will serve as the Principal Investigator on the grant.

 

Katharine C. Rathbun, MD, MPH, has published an electronic guide for disaster preparation: BEING PREPARED: Protecting Your Family From Hurricanes, Earthquakes and Other Disasters. This guide provides detailed information for individual and family emergency preparedness, drawing on Dr. Rathbun's practice experience in disaster medicine and public health, and as a homemaker and mother. It provides practical information that can be incorporated into day to day to life. The guide is freely available at: http://www.dr-kate.com/

Upcoming Conferences and Meetings

 

Health Law Project, Program on Law and Government, American University Washington College of Law, Summer Session:  Health Law and Policy Institute, Washington D.C., June 15-19, 2009 - Attorneys and students who wish to earn CLEs or as many as three academic credits in one week can attend WCL’s 2009 Summer Session Health Law and Policy Institute.  This year, the Health Law and Policy Institute will offer seven introductory health law courses, providing JD and LLM students with an opportunity for intensive training in various aspects of health law and policy, while having the option to earn academic credits. The custom-developed courses will be taught by leading attorneys from WCL, private practice, health care organizations, government, and non-governmental organizations. The Health Law and Policy Institute will also provide multiple networking opportunities with leading national Health Lawyers.  For the full brochure, please visit http://www.wcl.american.edu/health/institute.cfm.

 

The Human Rights and Tobacco Control Network (HRTCN) with hold its second international meeting in Mumbai immediately following the World Conference on Tobacco or Health.  The HRTCN meeting, March 13-14, 2009, will be hosted by the TATA Institute for Social Sciences with financial support from the WHO Tobacco Free Initiative and the University of Minnesota School for Public Health.  The HRTCN is a very new organization that is rapidly growing as the synergies between human rights health law and tobacco control are recognized.  This meeting in Mumbai will have an international outlook with the added opportunity to focus on activities ongoing in India.  We are extremely fortunate to have the United Nations Special Rapporteur on Health Anand Grover to open the meeting, followed by numerous international and locally respected experts.  For more information or if you are interested in attending, please contact: Carolyn Dresler (carolyn_dresler@ksg03.harvard.edu).

 

Indiana University School of Law – Indianapolis, William S. and Christine S. Hall Center for Law and Health’s Annual McDonald-Merrill-Ketcham Lecture/Indiana Health Law Review Symposium will feature health care reform on Feb. 25-26, 2009. This year’s Lecture will be delivered by Dr. Ezekiel Emanuel, Chair of the Department of Bioethics at the Clinical Center of the National Institute of Health, and his topic will be “Beyond Band Aid: How to Cure America’s Ailing Health Care System.”  Following that, the Seventh Annual Conference on Health, Disability, and the Law will be held on Friday, June 12, 2009. The topic of this year’s conference is Autism and Vaccines. Dr. Paul Offit of the University of Pennsylvania, Children’s Hospital of Philadelphia, and nationally known immunologist and author, will present the keynote address. Prof. Ross Silverman of Southern Illinois University School of Medicine will also speak at the conference. The Conference is a project of the Public Heath Law program at the Hall Center for Law and Health, directed by Heather A. McCabe, JD, MSW.

 

The APHA Public Health Education and Health Promotion Section is soliciting your best health education, promotion and communication materials for the 19th annual competition. The contest provides a forum to showcase public health materials during the APHA Annual Meeting and recognizes professionals for their hard work.  All winners will be selected by panels of expert judges prior to the 137th APHA Annual Meeting in Philadelphia.  A session will be held at the Annual Meeting to recognize winners, during which one representative from the top materials selected in each category will give a presentation about their material.  Entries will be accepted in three categories; printed materials, electronic materials, and other materials.  Entries for the contest are due by March 27, 2009.  Please contact Kira McGroarty at kmcgroar@jhsph.edu for additional contest entry information.

 

The Washington College of Law Health Law Project, Society for Women’s Health Research, Health Law and Policy Brief, Health Law and Justice Initiative, and Women and the Law Society presents Does SeXX Really Matter? What a Difference a “Y” Makes!, March 3, 2009, 9:30 a.m. – 4:00 p.m., American University Washington College of Law.  This program will feature topical issues involving women’s health care research, genetics, and sexuality.  The program will feature leading speakers from academia, research institutions, government and private pharmaceutical and medical device industry companies. To register, please go to www.wcl.american.edu/secle/registration