The Week in Health Law
Summary: Frank Pasquale, Nicolas Terry and their guests discuss the significant health law and policy issues of the week. Show notes are at TWIHL.com
Thad Pope, Professor of Law and Director of the Health Law Institute at MitchellHamline School of Law joins us to discuss some extremely difficult end-of-life cases that are being litigated on each side of the Atlantic. In the U.S. (specifically, in California and New Jersey) the tragic Jahi McMath case continues with no apparent end in sight. We discuss compelling narratives such as that in the New Yorker and attempt to frame the legal and ethical issues. Comparison and distinctions can be drawn between that case and Alfie Evans case in the UK that has led to multiple appeals to the UK Supreme Court and the European Court of Human Rights. One of our questions (there are many) is whether we are looking at likely challenges to the accepted evidence as to brain death or merely (?) another chapter in our cultural war about the meaning of life.
Jessica Roberts, the Director of the Health Law and Policy Institute and a George Butler Research Professor at the University of Houston Law Center returns to the pod. She specializes in health law, disability law, and genetics and the law and her book on “Health ism,” co-authored with fried of the pod Elizabeth Weeks Leonard, is forthcoming from Cambridge University Press. We begin by discussing health discrimination before, during, and after the ACA. Then, we discuss Jessica’s take (admirably articulated in a recent Michigan Law Review book review) on the nudging at the center of healthcare’s version of behavioral economics.
In April, 2018 the Northeastern University School of Law held a conference titled “Diseases of Despair: The Role of Policy and Law.” TWIHL was asked to be the event’s podcast partner and we roped in Leo Beletsky, our friend and one of the conference organizers to act as co-host for two special TWIHL episodes. We recorded two shows, this, the second, concentrated on healthcare law and policy. TWIHL thanks all the conference attendees and the organizers for their help and a wonderful conference.
In April, 2018 the Northeastern University School of Law held a conference titled “Diseases of Despair: The Role of Policy and Law.” TWIHL was asked to be the event’s podcast partner and we roped in Leo Beletsky, our friend and one of the conference organizers to act as co-host for two special TWIHL episodes. We recorded two shows, this, the first, concentrated on public health aspects. TWIHL thanks all the conference attendees and the organizers for their help and a wonderful conference.
A long overdue appearance on the Pod by Kansas University law professor Andrew Torrance who teaches and conducts research in patent law, intellectual property, innovation, and so much more! Andrew leads us through a couple of fascinating topics on the bleeding edge of IP. First, he discusses the use of a page ranking-like model to value patents. Second, he introduces us into some governance and related models applied in the synthetic biology community to avoid the tragedy of the commons but without resorting to traditional IP protection.
A welcome to first-time Pod guest, political scientist Jamila Michener, a Professor in the department of Government at Cornell University. Her research focuses on poverty and racial inequality in American politics. She is the author of a new book, Fragmented Democracy: Medicaid, Federalism and Unequal Politics (Cambridge University Press). We tackle Medicaid from her original perspective—how and why federalism (not to mention Section 1115 waivers) allows for unequal treatment of Medicaid recipients across out nation, and some of the damage to democratic institutions that result.
A welcome to first-time Pod guest Philip Rocco. Philip is on the faculty in the Department of Political Science at Marquette University. His research examines the consequences of institutional fragmentation for the development of public policy, with a focus on the politics of health reform in the United States. We cover a lot of territory inspired by Phil’s recent publications, Medicaid managed care and data, All-Payer Claims Databases, and public comments received during the Medicaid waiver process. A brief lightning round touches on ACA stabilization, more data about Indiana’s 1115 waiver, and the stinkbug-in-chief.
A welcome return from Rachel Sachs, a Professor at the Washington University in St. Louis School of Law. her primary research interests lie at the intersection of patent law and health law, with a particular focus on problems of innovation and access and the ways in which law helps or hinders these problems. She is a prolific scholar who has a knack for identifying cutting-edge research. We discuss various aspects of the drug price phenomenon, attempting to find some explanations for our current and exploring some possible solutions.
We are joined by award-winning medical investigative reporter Jeanne Lenzer. Her first book, “The Danger Within Us: America's Untested, Unregulated Medical Device Industry and One Man's Battle to Survive It.” Lenzer puts forward strong arguments that the medical device industry is under-regulated. Woven through her analysis is the story of one patient’s dangers and difficult journey involving an implanted device together with related stories about physicians and researchers.
We welcome back one of the pod’s most popular guests. Heather Howard is a member of the faculty at Princeton University’s Woodrow Wilson School of Public and International Affairs. With her help we unpack the latest flurry of Section 1115 waiver approvals. Some seem ripe for considerable skepticism, threatening the healthcare of many. Others, current or proposed, give us some cause for cautious optimism.
University of Maryland health law professor Diane Hoffman joins us to discuss the human microbiome market, probiotics, and microbiota transplants. The science is fascinating but the regulatory system is confused and confusing. Professor Hoffman’s involvement in ELSI working groups researching these areas makes her the go-to source for ideas on the various options regulatory options (including by the FDA and FTC) and their potential impact on the growth of this new and rapidly evolving science.
Pod favorite and BU public health and law professor Nicole Huberfeld makes a welcome return. We discuss Medicaid work requirements, lockouts, and health literacy testing and reflect on the new CMS-imagined Medicaid space. As CMS blows past its traditional guardrails we ask, what are the limits for post-ACA Medicaid, a tightly controlled welfare benefit rather than universality-enabling health insurance? We end our discussion by weighing the possible legal challenges to the recent Section 1115 waiver plans. Also, we try to stay cheerful!
We welcome Jacob Sherkow, a law Professor at the Innovation Center for Law and Technology, at New York Law School. There he teaches a variety of courses related to intellectual property. His research focuses on how scientific developments, especially in the biosciences, affect patent law and litigation. Prof. Sherkow is a prolific scholar, the author of over two dozen articles on these and related topics in both traditional law reviews and scientific journals. Our conversation begins with an excellent CRISPR primer before traversing some fascinating questions about gene-editing patent litigation around the world, licensing issues, and the broader array of regulatory issues encountered by such emerging technologies.
A first time visit from Dr. Carl Ameringer, professor of health policy and politics at Virginia Commonwealth University in Richmond, Virginia. A lawyer with a PhD in political science, he is an expert on issues surrounding our national debate on health care reform. We discuss his latest book “US Health Policy and Health Care Delivery: Doctors, Reformers, and Entrepreneurs” published by Cambridge University Press.
Seton Hall law professor Carl Coleman leads our deep dive into human subjects research, the revised common rule, and the most import features of the latter. We question and speculate on the reasons for the continued freezing and delays surrounding the revised common rule, discuss the arguably marginal improvements over its predecessor, some comparative perspectives, and some of the annoyances still felt by researchers about both the original and revised rules.