HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, November 26, 2011

Health Affairs on Community Development

Kudos to Health Affairs and the RWJF for their continuing efforts to focus on the social determinants of health. A recent issue focused on cooperation between the Federal Reserve Bank and community development institutions to assure healthy neighborhoods and health-enhancing social conditions. As editor Susan Dentzer explains

The Robert Wood Johnson Foundation became acutely aware of the gap [between the public health and health care sectors and the nation’s community development “industry”] through its sponsorship of the Commission to Build a Healthier America, which the foundation convened in 2008 and of which Williams served as staff director. The Fed’s awareness stems from its congressional mandate to achieve strong, low-inflation economic growth and to help low-income communities become full partners in that process.

So, as the foundation’s Risa Lavizzo-Mourey and Sandra Braunstein of the Fed write, both sectors are now focused on what they might achieve together. Health care providers understand that they can make more headway against chronic disease if residents of a local housing complex have access to safe parks and healthier food. Community developers understand that beyond creating low-income housing, they should also invest in these amenities and even construction or expansion of community health centers.

The program is also podcast as a Health Affairs event.

[FP]; X-Posted at Health Reform Watch.

November 26, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 24, 2011

Call for Papers for the Stetson Law Review Health Law Symposium

The Stetson Law Review has issued a Call for Papers for its Fall 2012 Health Law Symposium. Here is the announcement: 

Stetson Law Review is excited to announce an upcoming Health Law Symposium, to be published in the Fall of 2012. Health Law is a specialty in which political, economic, medical, and ethical issues all present a challenge to practitioners. Health lawyers may need to solve corporate, administrative, securities, contracts, intellectual property, tax, and litigation questions. They may also need to answer ethical and bioethical issues.

We invite you to consider submitting an article for publication in this edition of the Stetson Law Review. This is a unique opportunity to showcase your expertise in this dynamic area to peers and potential clients. 

Each submission must relate to health law in some way. But we want to produce a fresh and relevant book, so we encourage articles that explore unexpected or new areas of health law. General Submission Guidelines: 

 Short Article: usually fifteen to twenty five pages, discussing, for example, the last word by counsel of a recently decided case; 

 Full-length Article: usually twenty-five to forty pages, providing in depth analysis of some significant area of health law.

  Topics may be reviewed by Stetson Law Review’s faculty advisor to ensure that the book contains a balanced variety of articles and topics. 

If you are interested in having your article published in Stetson Law Review’s Health Law Symposium, please contact us at for more information. The deadline to commit to submitting an article is January 15, 2012; final articles will be due on July 15, 2012. 

Thank you for your time and consideration. We look forward to working with you!

Stetson Law Review

Editorial Board

November 24, 2011 | Permalink | Comments (0) | TrackBack (0)

Seton Hall Law School and Graduate Institute of International and Development Studies to Offer Executive Course in Intellectual Property and Global Public Health in Geneva, Switzerland

Seton Hall Law School and the Graduate Institute of International and Development Studies Announce an  Executive Course in Intellectual Property and Global Public Health in Geneva, Switzerland:

Intellectual property issues have come to play an increasingly important role in discussions of national and global health problems. Yet, individuals whose primary expertise is health or diplomacy may find these discussions inaccessible because they lack a sufficient understanding of basic intellectual property concepts and their relationship to global public health. To fill this gap, Seton Hall Law School and the Graduate Institute of International and Development Studies in Geneva have joined together to offer an executive course on health-related aspects of intellectual property from a global public health perspective. A key goal of the course will be to develop concrete tools for implementing the World Health Organization’s Global Strategy and Plan of Action on Public Health, Innovation, and Intellectual Property.  Course faculty will include key representatives from the World Health Organization, the World Trade Organization, the World Intellectual Property Organization, academia, industry, and nongovernmental organizations.  The course will be held on the Graduate Institute's campus in Geneva, Switzerland on February 15-17, 2012. 

Further information is available at


November 24, 2011 | Permalink | Comments (0) | TrackBack (0)

Don Berwick Leaves CMS

The CMS Administrator has resigned from his recess appointment that was due to expire at the end of December. The Washington Post, here, and Poliitco, here, have the story. The NPR blog has more information on his deputy and new Obama nominee Marilyn Tavenner, here, and speculates that her path to confirmation is not likely to be any smoother. [NPT]

November 24, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, November 20, 2011

Sports, Medicine, and Health Law (Part 2)

It should also be noted that that some of the news in the sporting world reflects the many triumphs of modern medicine.  Many players can now resume their athletic careers after what would formerly have been debilitating and career-ending injuries.  And other achievements extend beyond the sporting arena. 

A number of articles (here) recently commemorated the twentieth anniversary of the date when Magic Johnson, then one of the most acclaimed players in the National Basketball Association, announced he was HIV-positive, a disease that was then generally fatal within a relatively short period of time.  In turn, this led him to retire from professional basketball in part because of the unfounded fears of other players that they could contract HIV from him following incidental contact in the course of a game.  With the advancements that have been made in the treatment of HIV, Johnson has survived and prospered. 

Nonetheless, other stories do not have such happy endings.  One sports writer, Joe Posnanski, recently wrote (here):

Some years ago, I got to know a high school football coach in Georgia.  I was writing a newspaper column then, and he coached in a small town on the outskirts of our coverage area.  But I was drawn to him—he was entertaining, and his teams were good, and if there’s one thing we columnists love, it is sure-thing columns.  And he was a sure thing.  I drove out to see him many times, went to dinner with him more than once.  We talked on the phone often—he was funny and happy and thoughtful and all those good things.  I probably wrote 10 columns about him over the years.  I figured I knew him.

So when he committed suicide, I asked myself again and again how I could have missed it.

I came to the conclusion then—a conclusion that has congealed through the years—that people are complicated and contradictory and mysterious and often bewildering. Good people do bad things, bad people do good things, happy people get lost, lost people become heroes.  This is the wonderful and depressing and daunting challenge of writing about people.  Things don’t always make sense.

This was the lead-in to his article on the unfolding story at Penn State University, where Jerry Sandusky, the “legendary” and long-time defensive coordinator of the football team, now retired, has been arrested and charged for allegedly sexually assaulting eight minor male children, assaults that were purported to have happened both while he was a coach and after he retired, including at least one incident that occurred at the football team’s facilities to which he still had access and where he continued to have an office.  A link was provided to the grand jury findings (here).  Sandusky was alleged in the grand jury report to have founded a “charity initially devoted to helping troubled young boys,” but “within [which he] found his victims.” 

In short order, these charges led to the firing of the President of the University and football coach Joe Paterno, who a week-and-a-half earlier to great acclaim had set the Division 1 record for career victories by a coach (here).  Assertions were made that various involved parties had failed to timely intervene or report the occurrence of child abuse of which they were aware (here).  Two weeks later, police said they were investigating child molesting allegations against a longtime assistant basketball coach at Syracuse University (here).

Sadly, until these reports emerged, child abuse had become a somewhat forgotten story in this country, perhaps because the prevalence of this abuse had declined somewhat in recent years (here).  However, another recent report (here) notes “[a]n increase in child abuse, mostly in infants, [which] is linked with the recent recession . . . [and] raises fresh concerns about the impact of the nation's economic woes.”  Furthermore, as I have written in an article (here) that appeared in the Ohio Northern University Law Review:

For almost 150 years . . . child abuse has been widely recognized as a recurrent, pervasive problem—with potentially tragic short- and long-term consequences for a staggering number of children—that calls for a well conceived and executed societal response.  Nevertheless, the consensus is that society is still not adequately preventing or identifying child abuse or appropriately responding to the needs of abused children. . . .  As has often been noted, a society should be measured by how well it treats its most vulnerable citizens.  Preventing and appropriately managing child abuse should be at the top of any ordered society‘s agenda.

* * *

Family violence is the most prevalent form of violence in society today.  There were approximately 3.3 million reports of child abuse (involving 6.0 million children) filed in 2008, with almost 772,000 children determined to be victims of abuse (a figure that represents 10.3 of every 1,000 children in the United States) and an estimated 1,740 associated deaths.  Roughly 2,400 children are found to be victims of abuse per day, three to five children die from child abuse every day (44% of which are younger than one year of age), and 18,000 children per year sustain permanent disabilities as a result of child abuse.  The long-term effects of child abuse include possible brain damage and other physical health problems, developmental delay, learning disorders, low academic performance, poor mental and emotional health, including depression, alcohol and drug abuse, problems in forming relationships, teen pregnancy, sexual victimization, aggressive behavior, juvenile and adult criminal behavior, and abuse of their own children.  Further, the actual number of child abuse cases has been estimated to be as much as 60% higher than the number of confirmed cases.

* * *

Those children most likely to be abused are younger children, children with disabilities or medical problems, and children living in families with relationship difficulties, which include poor parent-child interactions, domestic violence, or unskilled parenting.  Child abuse occurs in all socioeconomic groups . . . , but specific identified risk factors include stress on the family; isolation and a lack of social support, particularly emotional support; poverty, especially when associated with stress and limited resources; and high crime levels in the neighborhood where the family lives.

* * *

Mandatory reporting laws, society‘s primary mechanism for detecting and responding to child abuse, have to some extent exposed the prevalence of child abuse in the nation and raised public awareness of its existence.  However, . . . they have not been the panacea that many hoped they would be. Their success in identifying a large number of cases of child abuse has been accompanied by an even larger number of reports where child abuse has not been found, a failure to detect a still substantial number of cases of child abuse, limited success in responding to substantiated cases of child abuse, and a failure to prevent and deter future abuse.  For example, these reporting requirements fall primarily upon professionals, but research has suggested that the more professionals know about the child protection system . . . the less likely they are to report suspected cases of child maltreatment.

* * *

One group of professionals for whom designation as a mandated reporter has proven particularly controversial involves mental health professionals.  Most of this concern has focused on requirements to report suspicions of child abuse that arise in the course of a therapeutic session.  Information that is disclosed in the course of a therapeutic session is typically required to be kept confidential, in part because of concerns that disclosures, which are often times seen as the keys to therapeutic progress, will be less forthcoming if the client thinks that this information might be disclosed to others.  Moreover, it has been noted that mental health professionals believe that reporting suspected child abuse disrupts treatment and as a result actually increases the risk to the child.  Indeed, one study found that 25% of clients withdrew from treatment after a report was made, while another study determined that clients‘ revelations of incidents of abuse stopped after a mandatory reporting law went into effect.  Nevertheless, mental health professionals are now widely required to submit such reports.

Some states have broadened the range of mandated reporters even further to include the general public.  By 1977, twenty states had passed legislation that mandated that any person who suspects child abuse file a report.  However, this approach has been criticized for enhancing the likelihood of false and potentially damaging and stigmatizing reports, for increasing encroachment on family privacy and parental autonomy, and for deputizing the entire community to be on the lookout for possible abuse when the general community is not adequately trained to accurately detect indications of child abuse.  Indeed, whereas non-professionals now submit 28.6% of all child abuse reports, they account for a disproportional number of the reports where the occurrence of child abuse is not substantiated.  Currently, only eighteen states require all citizens to report suspected child abuse, with one state requiring any public or private official to submit a report.

Insightful articles on child abuse and society’s response to it have been published by Gary B. Melton (here) and by Lois A. Weithorn (here).  For a recent report that physicians sometimes fail to report child abuse, see here.

Is the sports’ world more at risk of these types of behaviors?  Probably not (for recent occurrences of purported child abuse unrelated to sports, see here and here), but as the recent headlines remind us, neither is the sports world immune from these health and life-related problems and the legal issues that flow from them.  In addition, when arguably the most well-known general manager in baseball asserts (here) that the “first rule” in his rebuilding of the franchise is to “Do no harm,” it becomes apparent how intertwined sports, medicine, and health law are today.—Thomas L. Hafemeister, J.D., Ph.D., Associate Professor of Law, University of Virginia School of Law

November 20, 2011 | Permalink | Comments (0) | TrackBack (0)

Sports, Medicine, and Health Law (Part 1)

It has often been noted (here) – at least by sports writers – that Chief Justice Earl Warren in describing how he would begin his days once said: “I always turn to the sports section first.  The sports section records people's accomplishments; the front page nothing but man's failures.”  He might not be as inclined to say that today as you are just as likely to see the problems of the world played out there, ranging from racial insensitivity and bias (here) to labor disputes (here, with a copy of the NBA players’ antitrust complaint against league owners here). 

But increasingly the sports section (or more likely one of the popular websites devoted to sports news) will also be addressing emerging health and related legal issues that extend well beyond the traditional stories that focus on the injuries of players that might limit their athletic efforts.  For example, recent stories described the arrest and suspension of a football coach for driving under the influence of alcohol (here), while others noted criminal prosecutions associated with claims that performance enhancing drugs had been used in cycling events (here and here).

Another line of stories is focusing on sports-related traumatic brain injuries.  Hall of Famer Forrest Gregg, a former member of the Green Bay Packers who played in a then-record 188 consecutive NFL games and was nicknamed “Ironman” for his durability, has just been diagnosed with Parkinson’s disease, a debilitating neurological disorder.  “Gregg, his family and his neurologist say his disease may be related to [the] numerous concussions he suffered during his playing career” (here).  This article also notes that probably the most famous professional boxer of all time, Muhammad Ali, “is mostly mute after years of living with Parkinson's.” 

Another former star of the NFL, Dave Duerson, committed suicide in February at the age of fifty.  As described here, Duerson had complained to family members of his deteriorating mental state during his final months, as well as headaches, blurred vision, and a deteriorating memory.  A final note left to his family read: “Please, see that my brain is given to the N.F.L.’s brain bank.”  Duerson then shot himself in the chest rather than the head, apparently so that an examination of his brain could indeed be conducted.   Although the NFL does not operate a “brain bank,” it has donated $1 million to Boston University’s Center for the Study of Traumatic Encephalopathy, which has examined the brains of twenty former players that developed what is referred to as chronic traumatic encephalopathy (CTE).  This Center announced in May that Duerson’s brain had developed the same trauma-induced condition found in these other players.  CTE has been linked to memory loss, depression, and dementia.  Indeed, a provocative recent study by researchers at the Cleveland Clinic asserts that today’s football helmets are no safer than the leather helmets that used to be worn (here). 

Ironically, Duerson had served for a number of years on a panel that considered claims for disability benefits filed by former NFL players, and which has been reported to be parsimonious in its awarding of benefits for neurological damage, with “Duerson himself [having] told a Senate subcommittee in 2007 that he questioned whether players’ cognitive and emotional struggles were related to football.” (here)  The Boston University Center is now commencing a study that is hoped will provide a means of diagnosing CTE in living individuals, which presently can only be confirmed by examining brains after death (here). 

Awareness is also growing that children and youth are particularly susceptible to sports-related traumatic brain injury.  For example, a recent study (here) determined:

The number of young children treated in hospital ERs for concussions they got while playing on sports teams has doubled in just a decade[,] . . . [that r]oughly half a million ER visits for concussions occurred among 8- to 19-year-olds between 2001 and 2005[, and that a]bout half were sports-related, and 40% of sports-related concussions involved children between the ages of 8 and 13.

In response (here):

Between 2009 and 2010, at least 17 states passed laws to address traumatic brain injury.  In 2011, bills have been introduced in at least 39 states to address different aspects of traumatic brain injury.  The majority of these states (AL, AK, AZ, CA, CO, CT, DE, FL, HI, IA, IL, IN, KS, LA, MD, MA, ME, MI, MN, MO, NE, NV, NH, NY, NC, ND, OH, PA, RI, SC, SD, TN, TX, UT, VT, WI, WV and WY) introduced legislation targeting youth sports-related concussions.

A related news report (here) noted that “[a]bout 20 percent of high school football players and 40 percent of college football players will suffer a concussion at some point in their career, according to the American Academy of Pediatrics” and that:

Thirty-two states [currently] have laws addressing student-athlete concussions and several others could eventually follow suit . . . . Most legislation requires an athlete to leave competition or practice when a concussion is suspected, returning to play only when a doctor or other medical expert consents. 

This reports adds that:

Numerous school districts are using a system called ImPACT, or Immediate Post-Concussion Assessment and Cognitive Testing, which is already deployed by the NFL, Major League Baseball and the National Hockey League.  The tests measure athletes' baseline brain functions at the start of the season by having athletes undergo computer tasks measuring reaction time and memory.  After a suspected concussion, athletes retake the tests to determine if any changes occurred in the brain.  They are sidelined until their condition improves.

However, the risk of being sidelined may lead players to be less forthcoming about indicators of a possible concussion.  It has also been noted (here) that “in-game concussion protocols might be inconsistently applied.”  This, in turn, raises questions about the liability of team physicians’ responsible for implementing these protocols, which at the high school level may be volunteers, and the conflicts of interest they may face.  For a discussion of related legal issues, see here; here; here; here; and here.

(to be continued)

Thomas L. Hafemeister, J.D., Ph.D., Associate Professor, University of Virginia School of Law

November 20, 2011 | Permalink | Comments (0) | TrackBack (0)

Guest Blogger Kathy Cerminara: Angels of Mercy or Roto-Rooters? Regulatory Visions of Hospice Providers

Kathy CermineraAs I essentially argued in last week’s blog posting, and as I have argued here and here, our legal and regulatory structure should assist more patients in accessing hospice care.  One way to assist patients in doing so is by including it in the essential health benefits package; another way is by revising some of the preconditions to coverage of it under current rules.

Certain hospice care providers, however, have been attracting scrutiny because of concerns that they are engaging in fraud and abuse.  Indeed, within ACA, even as it approved certain relaxation of coverage rules, in part on a trial basis, Congress indicated suspicion of hospice care providers by tightening documentation requirements.  In doing so, it followed an earlier, similar step by HHS after years of regulatory concern.  Court files provide reason for suspicion as well.  Earlier this month, a federal court in Dallas unsealed the complaint in a whistleblower lawsuit against Vitas Healthcare’s San Antonio office alleging a conspiracy between Vitas and two HMOs to defraud Medicare.

One reason for increased scrutiny has been a huge increase in Medicare hospice care expenditures coupled with a sharp increase in the number of for-profit hospice care providers.  As I have noted previously:

Regulatory and legislative desire for increased accountability stems from a great increase in Medicare spending on hospice care over recent years.  . . . . Even if it is an economical form of care, it consumes a significant amount of resources. 

The increasing costs are due both to the growing number of Medicare beneficiaries electing hospice care and to the increased number of days hospice beneficiaries, on average, are receiving hospice care. Between the year 2000 and the year 2008, the percentage of Medicare decedents who had received hospice care rose from 23 to 40 percent. The provision of hospice care to Medicare beneficiaries increased at an average rate of 10 percent per year between 2000 and 2007 and still grew, but at the slower rate of 5.5 percent between 2007 and 2008. 

In roughly this same time period, the number of for-profit hospices in the marketplace for hospice services has increased significantly. Between 2001 and 2008, the total number of hospices in America increased by 47 percent, from 2,303 to 3,389. In that time period, the number of for-profit hospices increased by 128 percent, while the number of not-for-profit hospices increased by only one percent. In raw numbers, this translates into an increase of 983 in the number of for-profit hospices (from 765 to 1,748) compared to an increase of 13 in not-for-profit hospices (from 1,184 to 1,197).1

There may be any number of reasons for the increase in the number of hospice patients and the number of days those patients receive hospice care.  Some of those reasons would be good ones:  more patients may be recognizing the value of hospice services or receiving hospice care long enough to benefit from it than previously.  But the increase in for-profit hospice providers during the same time period has fueled concerns that the increases are due to fraud and abuse.  As Joshua Perry and Robert Stone argue, there’s something about for-profit ownership that encourages regulators, legislators, and, yes, even sometimes the public, to suspect the commercialization of hospice care.  Most “regular folks” with whom I have spoken, for example, have wrinkled their noses and expressed shock when learning that formerly not-for-profit Vitas now is part of the same for-profit corporate structure as Roto-Rooter.

It would be unfair to assert that all the increase in hospice funding is due to fraud, and even more unfair to assert that all fraud emanates in for-profit entities, even if Office of Inspector General investigations and whistleblower lawsuits support such conclusions.  Nevertheless, the combination of an increase in funds flowing toward hospice care providers and the upswing in for-profit entities becoming or acquiring such providers turns heads.

Hospice care in the best sense of the word – the provision of palliative care by a multi-disciplinary team who can act as “guides into death” for patients, families and caregivers – can greatly ease the dying process for all involved.  And, obviously, data, rather than assumptions, should govern our views of corporations providing hospice care.  Studies conflict regarding whether for-profit and not-for-profit healthcare institutions actually differ.  But, for now, expect those competing visions of hospice providers – angels of mercy or Roto-Rooters – to continue to clash in legislators’ and regulators’ minds.

1 Hospice and Health Care Reform: Improving Care at the End of Life, at pp. 25-26.

- Kathy Cerminara

November 20, 2011 | Permalink | Comments (0) | TrackBack (0)