Friday, August 2, 2013
Assistant, Associate, or Full Professor of Law
Southern Illinois University School of Law seeks to fill up to four full-time tenure-track or tenured faculty positions to begin in the 2014-2015 academic year. With a range of curricular needs, the School of Law welcomes applications from candidates with a wide variety of interests including Health Law, as well as Contracts, Torts, Legislative and Administrative Process, Family Law and other courses.
Rank & Title: For Associate or Full Professor rank: significant teaching experience and demonstrated achievements in scholarship consistent with the tenure and promotion standards of the Southern Illinois University School of Law.
Duties &Responsibilities: Classroom instruction, scholarship, and service.
To Apply or Nominate a Candidate: A complete application will require a letter of application detailing your interest, qualifications and relevant experience, along with a vitae or resume and three references with names.
Address or email applications to:
Assistant to the Dean
Mail Code 6804
Southern Illinois University School of Law
1150 Douglas Drive
Carbondale, Illinois 62901
Deadline for application: October 1, 2013 or until position is filled.
Myungho Paik, Bernard S. Black, David A. Hyman, The Receding Tide of Medical Malpractice Litigation Part 2: Effect of Damage Caps, 10 J. Empirical Legal Stud. 3 (2013).
Leslie Meltzer Henry, Moral Gridlock: Conceptual Barriers to No-Fault Compensation for Injured Research Subjects, 41 J.L. Med. & Ethics 411 (2013).
Jean M. Eggen, Medical Malpractice Screening Panels: An Update and Assessment, 6 J. Health & Life Sci. L. 1 (2013).
Zahra Mastaneh, Lotfollah Mouseli, Patients Awareness of Their Rights: Insight from a Developing Country, 1 Int'l J. Health Pol'y & Mgmt. 1 (2013).[KVT]
Wednesday, July 31, 2013
The most recent issue of the Hastings Center Report features an illuminating discussion of the failure to include reimbursements for discussion of end of life care options in the Affordable Care Act. As is well known, the “Advance Care Planning Consultation” (APCP) proposal met a fiery rhetorical end, consumed by charges of the legitimation of “death panels.” The Kaiser Family Foundation reported last spring that a significant percentage of the public continue to believe that ACA provides for death panels, and that this contributes to the unpopularity of ACA.
In “Avoiding a ‘Death Panel’ Redux,” Nicole M. Piemonte and Laura Hermer offer an illuminating explanation for the advance care planning fiasco. As the APCP provision was introduced, it contained language mandating certain contents for end of life conversations: "Mandatory content included an explanation of advance care planning, advance care directives, living wills, and durable powers of attorney; an explanation of the role and responsibilities of a health care proxy; provision of a list of national and state-specific resources to assist in advance care planning; an explanation of the continuum of end of life resources available, including palliative and hospice care; and an explanation of orders regarding life-sustaining treatment, including why such orders are beneficial to the individual and the family." Piemonte and Hermer suggest that this content mandate detracted from the aim of encouraging genuine dialogue between physicians and their patients and instead suggested a problematic checklist approach. An additional problem was the proposal to include adherence to advance care directives as a quality measure. Taken together, Piemonte and Hermer argue, these aspects of the APCP fed perceptions that the government was prescribing what physicians had to do with respect to end of life decisionmaking--even, perhaps, with respect to cost controls. The form in which APCP was originally proposed thus may have played a role in its demise.
Piemonte and Harmer praise later proposals (none as yet enacted) for education and encouragement of open-ended communication between physicians and patients. Unfortunately, it is difficult to visualize what how different these proposals might actually be in practice; one, for example, takes content mandate out of the statute but into regulation. Nonetheless, the article is a useful reminder of the need for attention to good physician-patient relationships as ACA unfolds.
Tuesday, July 30, 2013
The super-size soda ban, a program advocated by NYC Mayor Michael Bloomberg, is not constitutional according to the unanimous opinion from a state appellate court in New York Statewide Coalition of Hispanic Chambers of Commerce v. NYC Department of Health and Mental Hygiene.
The court affirmed a state trial court's decision that the NYC regulation prohibiting sugary drinks in restaurants, movie theaters and arenas that exceed 16 ounces was an unconstitutional exercise of power by a city agency, as well as arbitrary and capricious. A good discussion of the trial court's decision is here.
Essentially, the issue is whether NYC Health Code §81.53, known as the "portion cap rule" is within the power of the Department of Health. The short answer by the judicial branch: no.
In today's opinion, the court held that the NYC
Board of Health overstepped the boundaries of its lawfully delegated authority when it promulgated the Portion Cap Rule to curtail the consumption of soda drinks. It therefore violated the state principle of separation of powers. In light of the above, we need not reach petitioners' argument that the subject regulation was arbitrary and capricious. Before concluding, we must emphasize that nothing in this decision is intended to circumscribe DOHMH's legitimate powers. Nor is this decision intended to express an opinion on the wisdom of the soda consumption restrictions, provided that they are enacted by the government body with the authority to do so. Within the limits described above, health authorities may make rules and regulations for the protection of the public health and have great latitude and discretion in performing their duty to safeguard the public health.
Doctrinally, the decision is most pertinent to New York state constitutional law and administrative law scholars and practitioners. It has broader interest, however, to those interested in the powers of governments to enact regulations that (arguably) promote health.
The New York Times reported yesterday that many Congressional staffers are thinking about leaving their jobs because the ACA requires them (and members of Congress) to purchase their health insurance on state exchanges, and there is no mechanism in the law for the federal government to continue to pay its share of the premiums for the coverage, as it does now under the Federal Employees Health Benefits Program. (Apparently, members of Congress are not thinking about leaving their jobs because of this, you can decide for yourself whether that is fortunate or unfortunate.) This gap in the law was flagged by the Congressional Research Service almost immediately after the ACA was signed into law by President Obama, but nobody has come up with a solution to date. The most the administration is saying about this right now is that they are "working on a regulation."
This situation presents an ironic twist on the often-voiced fear amongst critics of the ACA that the existence of the exchanges and the penalties for employers who do not offer adequate health insurance coverage to employees will encourage employers to drop insurance coverage as a job benefit. Here, the employer wants to continue to cover the employees, but is prevented from doing so by a glitch in the law. It also presents an ironic twist on the often-voiced praise amongst supporters of the ACA that the existence of the exchanges and the subsidies for purchasing individual insurance will allow employees who want to leave their jobs for greener pastures, but could not do so for fear of losing their insurance, to finally leave their unsatisfactory jobs. Here, we have people who want to keep their jobs, but say they will be forced to leave because their employer cannot provide them with insurance.
These problems can probably be fixed with a simple administrative policy, and the people affected have the political clout to see that it is done. If only that was the case for most other folks affected by the unintended consequences of legislation.
Monday, July 29, 2013
This month's Hasting Center Report contains a case study written by me and by Dr. Craig Klugman considering both the practice of "deporting" indigent patients who lack legal immigration status and the ability of a medical center to withdraw life sustaining treatment against a family's wishes.
The article considers a scenario occuring in Texas which, of course, has a highly structured mechanism to refuse to follow an advanced directive if it means providing care which the hospital believes not productive. However, the problem of how to assert the legal right not to have a DNR is one of growing in importance.
For example, organizations like the Texas Alliance for Life tried but failed this last legislative session to vote in laws that would bar physicans from writing DNR orders against a patient or her surrogate's objection.