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Health Law

Health Law Blog

Commentary on anything-- if not quite everything-- happening in the health law field, with emphasis on federal developments but including state developments (especially Texas) plus occasional digressions into family law, administrative law, constitutional law, poetry, and other things that matter.

Post Frequency: 1.3/day

Last Entry: November 04, 2020 at 14:12:52

Everything You Wanted to Know About Liver and Lung Transplant Allocation Policies But Were Afraid to Ask

Posted on November 04, 2020
The Government Accountability Office has issued a detailed letter report on recent changes to the allocation policies for these two organs. Over the years, this has been a difficult subject to teach in my Bioethics & Law course. I hope this will be a good resource for anyone seeming an overview of the manner in which these scarce resources are allocated, as well as a brief summary of the

President Maligns Physicians and Hospitals in Midst of Third Wave

Posted on November 03, 2020
Out on the campaign trail last week, Pres. Trump had this to say:?[O]ur doctors get more money if somebody dies from covid.? ?You know that, right?? Trump said at a Michigan rally on Friday. ?I mean our doctors are very smart people. So what they do is they say, ?I?m sorry, but everybody dies of covid...

"The Pandemic is Over?" The Mind Boggles

Posted on October 28, 2020
This nonsense didn't come from the Trump campaign. It wasn't uttered by one of the president's surrogates out on the campaign trail. And it wasn't insinuated into one of the vice-president's answers during last week's debate.This came from the White House Office of Science and Technology Policy! Granted, they are part of the Executive Office of the White House, but their website offers this

Lessons for the Next Pandemic?Act Very, Very Quickly (WSJ Covid Storm series)

Posted on October 24, 2020
This article (10-11-20) by Betsy McKay is the latest in the Wall Street Journal's excellent series, "The Covid Storm." It is a terrific "lessons learned" piece. Our political and public-health leaders need to be ready for the next outbreak in some very specific ways, and that begins with taking stock of where the system failed us this time around...

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Practical Strategies for Healthcare Providers to Limit Claims Involving Alleged Contraction of COVID-19 on Premises (Haynes and Boone Newsletter)

Posted on October 23, 2020
Haynes and Boone's recent newsletter on limiting COVID-19-related liability is a gold mine of practical analysis and advice. It is also a virtual roadmap of issues that I've covered in my first-year Torts class: negligence (esp. duty and causation), negligence per se, premises liability, medical malpractice, immunity statutes, express waivers of liability, and best practices for avoiding a direct

Care at the End of Life

Posted on October 21, 2020
The New England Journal just published an incredibly insightful and moving Perspective piece, "Learning About End-of-Life Care from Grandpa," by Scott Halpern. https://www.nejm.org/doi/full/10.1056/NEJMp2026629?query=TOC (Oct. 21, 2020). It's about physician aid0in0dying and voluntarily stopping eating and drinking (VSED) and hospice and family and home...

As reported by the Fort Worth Star-Telegram,

Posted on October 18, 2020
As reported by the Fort Worth Star-Telegram, the Texas Supreme Court on Friday declined to review the order of the Second Court of Appeals (Fort Worth) in the Tinslee Lewis case. This keeps in place the court of appeal's order that requires Cook Children's Hospital to continue aggressive life support for the one-year-old pending a full trial on the merits of her mother's suit against the hospital

Nicholas Kristof: On the Right Side of History

Posted on October 15, 2020
Kristof's column in today's N.Y. Times is well worth a read. He's probably right that the Court, with or without Amy Coney Barrett on it, is unlikely to snatch the ACA away from 20 million people who are insured because of the law. It's a life-line for millions:Census data show that even before the Covid-19 pandemic the number of uninsured Americans had risen by 2...

Public-Health Experts Agree (More or Less): Covid Shutdowns Aren?t the Way to Go

Posted on October 13, 2020
Not, at least, for the looming ?second wave.? Over the past week or two, articles have been popping up left and right with this message. Now the Wall Street Journal has published a good summary (10/13/2920) of the arguments pro and con. The emerging consensus is that many people are worn down by the earlier shutdowns and aren?t likely to comply with another round of broad closings...

Questions for Judge Amy Coney Barrett

Posted on October 12, 2020
Over at The Commonwealth Fund, health-law prof and ACA expert extraordinaire Tim Jost properly focuses not on whether CJ Roberts got it right when he upheld the individual mandate as a proper exercise of Congress's powers under the Taxing Clause of the Constitution (Judge Barrett has argued that he did not) or when he upheld access to ACA premium tax credits for individuals enrolled in insurance

78% of Americans Believe Abortion Should be Legal "To Some Extent": Gallup Poll

Posted on October 10, 2020
For decades it seemed the numbers followed the "rules of 3's": 1/3 believed abortion should be legal, period; 1/3 believed it should be illegal, period; and 1/3 believed it should be legal under some circumstances, so a 2:1 ratio favoring legalization of abortion...

Wall Street Journal: More Superb Reporting on The COVID Storm

Posted on October 09, 2020
Catching up with the most recent installments in the WSJ's excellent series, "The Covid Storm.""Why Did Covid Overwhelm Hospitals? A Yearslong Drive for Efficiency" (9/17/2020)"How South Korea Successfully Managed Coronavirus" (9/25/2020)"In a Year of Bad Days, This Was One of the Worst" (9/25/2020)"Why Hospitals Can?t Handle Covid Surges: They?re Flying Blind" (9/30/2020)"The U...

Overturning the ACA Would Kick 12 Million Newly Enrolled Individuals Out of Medicaid: Kaiser Family Foundation Policy Paper

Posted on October 07, 2020
The ACA permitted states to expand eligibility for Medicaid enrollment to 128% of the federal poverty line. Twelve million people enrolled after their state took the federal government up on their offer to sweeten the deal by paying for 90% of the additional cost of covering these new enrollees (and even more that 90% in the early years)...

Senate Report on Health Inequities and COVID-19

Posted on October 06, 2020
It's a report from the Democratic staff of the Senate Health, Education, Labor, and Pensions Committee: "COVID-19 & ACHIEVING HEAL TH EQUITY: Congressional Action Is Necessary To Address Racism And Inequality In The U.S. Health Care System" (Sept...

Political Interference with FDA and COVID-19 Vaccine

Posted on October 06, 2020
The New York Times reports that the White House chief of staff and other "[t]op White House officials are blocking strict new federal guidelines for the emergency release of a coronavirus vaccine, objecting to a provision that would almost certainly guarantee that no vaccine could be authorized before the election on Nov...

Leave it to Trump to Say the Exact Wrong Thing

Posted on October 05, 2020
President Trump announced his intention to leave Walter Reed at 6:30 this evening. Okay, it is not the standard of care, but it's common for VIPs to get inferior care because no one wants to tell them "no." But did he have to tweet this utterly inappropriate message?"Don't be afraid of Covid"? Mr...

The Opposite of How Public Health is Supposed to Work

Posted on October 04, 2020
The staff of the Congressional Select Committee on the Coronavirus Crisis has issued a report on The Trump Administration's Pattern of Political Interference in the Nation's Coronavirus Response (10/2/2020). Coming from a committee with a majority of members of the Democratic caucus one month before the national election -- and with a title like that -- the political implications (and motivation)

NY Times Op-Ed: Maybe Roe v. Wade Isn't Worth Fighting For Anymore

Posted on September 29, 2020
UC-Hastings law professor Joan Williams writes in today's NY Times ("The Case for Accepting Defeat on Roe," 9/29/2020) one of the best summaries of where the current abortion jurisprudence stands in 2020 and argues that reproductive-rights advocates may fare better with state legislatures than they have in the courts:It?s true that abortion access is already abysmal...

KFF Report on Trump's Health Care Record

Posted on September 15, 2020
We can expect health care (and HC reform) to be a major policy focus of the fall presidential campaign. The president's record is long and complex, including (quoting a press blurb from the nonpartisan Kaiser Family Foundation):his response to the COVID-19 pandemic, his early and ongoing efforts to repeal and replace the Affordable Care Act (ACA), his annual budget proposals to curb spending on

The Case for the Saliva-Based Antibody Test, Rather than PCR Test, to Reopen Society Safely

Posted on September 11, 2020
Co-authors A. David Paltiel & Rochelle P. Walensky write in today's Health Affairs blog that we shouldn't be put off by the 30% false-negative rate of antigen testing (as compared to the PCR test, which is great at identifying the virus (sensitivity) but has a relatively high rate of specificity (it can be fooled into giving a positive result long after the virus has left the individual, and

The Latest from The Atlantic's Ed Yong on Where We Are Headed with COVID-19

Posted on September 11, 2020
Yong is quite possibly the best journalist covering the pandemic beat -- knowledgeable about the science, perceptive in spotting trends. His latest article in The Atlantic (9/8/20) is a good example. It's also borderline apocalyptic: "America Is Trapped in a Pandemic Spiral...

A Look at the Top-Down Management of the Coronavirus by Gov. Cuomo: WSJ's Series

Posted on September 11, 2020
The latest in the Wall Street Journal's series, "The COVID Storm," is critical of Governor Cuomo's insistence on controlling the shut-down and reopening of New York City, one of the hardest-hit cities in the United States. The article argues that the death toll didn't need to be as high as it was, if local authorities had been left to manage the crisis on their own.

$10,984 for a COVID-19 Antibody Test? Yes.

Posted on September 08, 2020
This is like one of those kid's puzzles -- Can You Spot the Errors in This Picture? -- with upside-down swings hanging up from tree branches and a man wearing unmatched socks. As reported by ProPublica, a part-time ER medical director walks into his employer's stand-along emergicare center to get a COVID-19 antibody test...

"?Really Diabolical?: Inside the Coronavirus That Outsmarted Science": Latest in WSJ Series

Posted on September 07, 2020
Another good installment in the WSJ series, "The COVID Storm" (9/7/20). Here are the opening few paragraphs:The new coronavirus is a killer with a crowbar, breaking and entering human cells with impunity. It hitchhikes across continents carried on coughs and careless hands, driven by its own urgent necessity to survive...

Sen. Cruz (+ 20) Makes a Move on Women's Health

Posted on September 05, 2020
Kudos to The Dallas Morning News for this article on the senator's letter urging the head of the FDA to pull Mifeprex (a/k/a mifepristone, RU-486, or "the abortion pill") from the market. The DMN story quotes the senator as saying "Pregnancy is not a life-threatening illness, and the abortion pill does not cure or prevent any disease...

Wall Street Journal's Latest in "The COVID Storm" Series

Posted on September 05, 2020
The Wall Street Journal continues its excellent series with two new installments:"How Trump Sowed Covid Supply Chaos. 'Try Getting It Yourselves.?" (8/31/20)"How Coronavirus Overpowered the World Health Organization" ((8/28/20)Links to all previous articles in this series are here.

Testing for the coronavirus and the CDC

Posted on August 27, 2020
On August 24 the CDC announced new recommendations for testing for the coronavirus. They said that there is no need for testing if someone is asymptomatic, even if that person has come into contact with someone who has the infection. Of course, this change serves the political goals of President Trump perfectly, since he has repeatedly asserted that with fewer tests the U...

The COVID Storm: three more Wall Street Journal articles

Posted on August 25, 2020
The Wall Street Journal continues to excel with its in-depth study of how we got to where we are today, what went right and what went wrong:What Derailed America?s Covid Testing: Three Lost Weeks (Aug. 18, 2020)Why Are There Still Not Enough Paper Towels? (Aug...

". . . it illustrates that we are all connected "

Posted on August 25, 2020
From the Boston Globe (possible paywall protection): When Biogen held its meeting of the firm's international leaders in a Boston hotel in February, they apparently had no idea it would be a super-spreader event. Attendees congregated in meeting rooms, on escalators and in elevators, at cocktail receptions and meals...

Declining life expectancy in the U.S. and legal determinants of health

Posted on August 24, 2020
It is well known that average life expectancy in this country declined from 2014-2017, followed by a slight (~1 month) increase in 2018 (CDC, Jan 2020), leaving the average still below its high in 2014. An important new article in JAMA (on-line and free) by Larry Gostin and co-authors James Hodge and Donna Levin consider "Legal Interventions to Address US Reductions in Life Expectancy...

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