‘The Week in Health Law’ Podcast

By Nicolas Terry

This week we interviewed Charles Ornstein, a senior reporter for ProPublica covering health care and the pharmaceutical industry. ProPublica has been at the cutting edge of twihl 5x5technology, health, and privacy reporting, and Ornstein’s work there has exposed both the personal narratives and hard data behind an American epidemic of privacy violations. We cover some of his recent hits in this conversation, and reflect on what it would take to see an effective health privacy regime in the US. HITECH geeks will love the discussion of “accounting of disclosures” at the end.

The Week in Health Law Podcast from Frank Pasquale and Nicolas Terry is a commuting-length discussion about some of the more thorny issues in Health Law & Policy. Subscribe at iTunes, listen at Stitcher RadioTunein and Podbean, or search for The Week in Health Law in your favorite podcast app. Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find us on twitter @nicolasterry @FrankPasquale @WeekInHealthLaw

Liability for Mobile Health and Wearable Technologies

Lindsay Wiley and I just posted Liability for Mobile Health and Wearable Technologies that is forthcoming in Annals of Health Law. As we argue–Most of the legal commentary regarding mobile health has focused on direct regulation leveraging existing laws and regulators such as HIPAA privacy through HHS-OCR or device regulation by the FDA. However, much of the mobile health revolution likely will play out in lightly regulated spaces bereft of most of the privacy, security, and safety rules associated with traditional health care. This article examines the potential for common law liability models to bridge these gaps (even on a temporary basis).
Download the paper on SSRN here.

‘The Week in Health Law’ Podcast

By Nicolas Terry

This week featured Deven McGraw, Deputy Director for Health Information Privacy at the U.S. Department of Health and Human Services’ Office for Civil Rights. Deven has been an influential figure in health law for years, both as a partner at Manatt, Phelps & Phillips, LLP (and co-chair of its Privacy and Data Security practice) and as head of CDT’s Health Privacy Project.

twihl 5x5Our lightning round featured Nic’s takes on a recent certificate of need case, a JAMA article on high-deductible plans, and superbugs on duodenoscopes. Frank covered the NY Times’s blockbuster article on drug shortages, and Politico’s data-driven angle on Biden’s “cancer moonshot.”

We then focused on Deven’s work, covering many topics in health privacy and security. OCR hopes that its recent guidance on access to health records will empower patients. Cloud computing and the “internet of health things” are huge concerns. OCR is innovatively offering FAQ pages for developers and others on the frontlines of health care’s technological advance, and welcomes their (and your) questions!

The Week in Health Law Podcast from Frank Pasquale and Nicolas Terry is a commuting-length discussion about some of the more thorny issues in Health Law & Policy. Subscribe at iTunes, listen at Stitcher RadioTunein and Podbean, or search for The Week in Health Law in your favorite podcast app. Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find us on twitter @nicolasterry @FrankPasquale @WeekInHealthLaw

Visiting Health/IP Law Professor, Indiana University Robert H. McKinney School of Law

The Indiana University Robert H. McKinney School of Law invites applications for a 2016-17 visiting assistant professor position, for one or two semesters. The position would primarily involve teaching courses in the Health Law and IP curricula and participation in the scholarly and student-centered activities organized by the law school’s Hall Center for Law and Health and its Center for Intellectual Property Law and Innovation.

Applicants should indicate what Health Law/IP courses they could offer and any additional courses they would be interested in teaching.

Please submit a letter of interest, a CV, and a list of three references to: Vice Dean Antony Page, Indiana University Robert H. McKinney School of Law at page@iu.edu  with copies to Professors Nicolas Terry, terry@iupui.edu, and Xuan-Thao Nguyen, xunguyen@iupui.edu. The closing date for applications is Friday, February 18, 2016.

We are committed to achieving excellence through intellectual diversity and strongly encourage applications from persons of color, women, persons with disabilities, the LGBT community, veterans, and members of other groups that are under-represented on university faculties. The law school is an Equal Opportunity/Affirmative Action Institution and offers domestic partner benefits.

‘The Week in Health Law’ Podcast

By Nicolas Terry

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This week we welcomed Jessica L. Roberts, Director of the Health Law & Policy Institute and Associate Professor of Law at the University of Houston. In 2015, she received the university-wide Teaching Excellence Award and the Provost’s Certificate of Excellence. Professor Roberts recently was named a 2018 Greenwall Faculty Scholar in Bioethics. Her research focuses on the intersection of health law and antidiscrimination law.

We started the program with a brief discussion of topics in the news, including the actuality of single-payer care in Britain and the possibility of Medicare-for-All in the US. Nic brought us up to date on Postmarket Management of Cybersecurity in Medical Devices, a guidance issued by the FDA. Frank brought up some ACA hiccups, including employees’ (failed) resistance to expanding wellness programs, and the rather startling statistic that 56% of Humana’s in-network hospitals have no in-network emergency physicians.

Jessica then led our discussion of her article (with Nicole Huberfeld), Health Care and the Myth of Self-Reliance, and her article (with Elizabeth Weeks Leonard) What Is and Isn’t Healthism. Each article addresses deep issues of distributive justice theory and anti-discrimination principles, as well as practical problems confronting HR and compliance departments.

The Week in Health Law Podcast from Frank Pasquale and Nicolas Terry is a commuting-length discussion about some of the more thorny issues in Health Law & Policy. Subscribe at iTunes, listen at Stitcher RadioTunein and Podbean, or search for The Week in Health Law in your favorite podcast app. Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find us on twitter @nicolasterry @FrankPasquale @WeekInHealthLaw

‘The Week in Health Law’ Podcast

By Nicolas Terry

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This week, we interviewed Guian McKee, an Associate Professor of Public Policy at the University of Virginia. Guian received a Ph.D. in American history at the University of California, Berkeley in May 2002. His research interests include U.S. social policy history and urban history. He is the author of The Problem of Jobs: Liberalism, Race, and Deindustrialization in Philadelphia, published in November 2008 by the University of Chicago Press. He also recently published an article in the Washington Post on the political economy of health in Baltimore.

Nic and Frank began with a discussion of the FTC’s Big Data report. We also discussed developments in Medicaid policy in Kentucky and other states, and the politicization of meaningful use.

Our discussion with Guian questioned some conventional narratives about health care costs. Frank discussed the hidden costs of health care cost-cutting, and Guian confirmed that “med and eds” have been at the center of many urban policy proposals in the wake of deindustrialization. Nic and Guian discussed the importance of addressing overutilization. And the conversation ended on a hopeful note about automation complementing, rather than replacing, human professionals.

The Week in Health Law Podcast from Frank Pasquale and Nicolas Terry is a commuting-length discussion about some of the more thorny issues in Health Law & Policy. Subscribe at iTunes, listen at Stitcher RadioTunein and Podbean, or search for The Week in Health Law in your favorite podcast app. Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find us on twitter @nicolasterry @FrankPasquale @WeekInHealthLaw

‘The Week in Health Law’ Podcast

By Nicolas Terry

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This week we talked to Professor Mary Crossley of the University of Pittsburgh School of Law. Professor Crossley’s research has focused on issues of inequality in the financing and delivery of health care, encompassing topics ranging from an exploration of potential legal remedies for physician bias in medical treatment, to an examination of how recent trends in health insurance coverage function to discriminate against unhealthy people.

We focused on the “community benefit standard” for federal nonprofit status for hospitals. The ACA has imposed new requirements in this domain, including a Community Health Needs Assessment (CHNA). CHNA’s might spur hospitals to do more to address health disparities and improve quality. But what? And how?

In our lightning round, we discussed four recent developments in health law, including a  final rule issued by HHS with respect to HIPAA law enforcement exceptions related to reporting of “mental health prohibitors” for gun ownership to background check database; Changes to meaningful use in legislation introduced by Rob Portman; Charles Ornstein’s great work at ProPublica on HIPAA violations, and how massive health care bills still dog even insured patients;

The Week in Health Law Podcast from Frank Pasquale and Nicolas Terry is a commuting-length discussion about some of the more thorny issues in Health Law & Policy. Subscribe at iTunes, listen at Stitcher RadioTunein and Podbean, or search for The Week in Health Law in your favorite podcast app. Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find us on twitter @nicolasterry @FrankPasquale @WeekInHealthLaw

“Naughty or Nice?’ A Special ‘The Week in Health Law’ Podcast Review of the Year in Health Law & Policy

By Nicolas Terry

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In a special Holiday-themed show reviewing the year in Health Law & Policy Nic welcomed Nicole Huberfeld, the Ashland-Spears Distinguished Research Professor of Law at the University of Kentucky College of Law, Nicholas Bagley, Professor of Law at the University of Michigan, and honorary ‘Nic’ Elizabeth Weeks Leonard, J. Alton Hosch Professor of Law at the University of Georgia.

The ‘naughty or nice’ round included discussion of the declining numbers of the uninsuredKing v. BurwellArmstrong v. Exceptional Child CenterGobeille v. Liberty Mutual Insurance CompanyChief Justice RobertsSenator Marco Rubio, and FTC cases LabMDPOM WonderfulWyndham & North Carolina Board of Dental Examiners.

Our ‘Happy New Year’ round included the House of Representatives ACA lawsuitUniversal Health Services v. United States ex rel. Escobar, the MMA 2003 non-interference clausehealth care prices, and Whole Woman’s Health v. Cole.

Finally, our ‘carolers-of-choice’ were Justice ScaliaDonald TrumpJimmy Fallon and the FLOTUS with the MOSTEST.

We’ll be back in the New Year. Happy Holidays. Thanks for your support Dear Listeners!

The Week in Health Law Podcast from Frank Pasquale and Nicolas Terry is a commuting-length discussion about some of the more thorny issues in Health Law & Policy. Subscribe at iTunes, listen at Stitcher RadioTunein and Podbean, or search for The Week in Health Law in your favorite podcast app. Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find us on twitter @nicolasterry @FrankPasquale @WeekInHealthLaw

‘The Week in Health Law’ Podcast

By Nicolas Terry

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This week we talked with Robert I. Field, Professor of Law at Drexel University. Robert is also a professor of health management and policy at Drexel’s Dornsife School of Public Health, a lecturer in health care management at the Wharton School of the University of Pennsylvania, and a senior fellow of Penn’s Leonard Davis Institute of Health Economics. He is the author of “Mother of Invention: How the Government Created ‘Free-Market’ Health Care,” which presents a historical overview of government programs in creating and maintaining the health care system and places health reform in the context of an ongoing evolutionary process. He is also the author of “Health Care Regulation in America: Complexity, Confrontation and Compromise,” a comprehensive overview of health care regulation.

We discussed a number of recent developments surrounding the ACA, including the most recent judicial challenges (and their potential to congeal into an emerging ACA SCOTUS jurisprudence) and legislative attacks. We discussed mainstream health economists’ zeal for the Cadillac tax, despite such thin evidence it will actually raise wages. We closed with a discussion of one theme from Robert’s book: what the US health care sector would look like if there were dramatic reductions in government support and regulation.

The Week in Health Law Podcast from Frank Pasquale and Nicolas Terry is a commuting-length discussion about some of the more thorny issues in Health Law & Policy. Subscribe at iTunes, listen at Stitcher RadioTunein and Podbean, or search for The Week in Health Law in your favorite podcast app. Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find us on twitter @nicolasterry @FrankPasquale @WeekInHealthLaw

‘The Week in Health Law’ Podcast

By Nicolas Terry

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This week we interviewed Anna Laakmann, Associate Professor of Law at Lewis & Clark Law School. Anna’s teaching and scholarship focus on biomedical innovation policy. Before she entered the legal academy, Laakmann was manager of technology development and commercialization at a medical research institute outside Philadelphia, where she evaluated the patentability and commercial potential of scientific discoveries, managed patent prosecution, and negotiated license agreements with biopharmaceutical companies.

Nic and Frank led off with discussion of the LabMD appeal, an NPR story on the NPRM (see Episode 32), and an opinion on the disposition of frozen embryos–a topic of some interest to bioethics scholars.

Anna then led the discussion of her work on regulatory property and liability for clinical innovation. Listeners interested in the coordination of conflicting sets of laws regulating innovation may also find the work of scholars at the two “Innovation Law Beyond IP” conferences at Yale of interest.

The Week in Health Law Podcast from Frank Pasquale and Nicolas Terry is a commuting-length discussion about some of the more thorny issues in Health Law & Policy. Subscribe at iTunes, listen at Stitcher RadioTunein and Podbean, or search for The Week in Health Law in your favorite podcast app. Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find us on twitter @nicolasterry @FrankPasquale @WeekInHealthLaw

‘The Week in Health Law’ Podcast

By Nicolas Terry

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This week we welcomed W. Nicholson Price, an Assistant Professor at the University of New Hampshire School of Law with a J.D. and Ph.D. (Biological Sciences) from Columbia University. Nicholson’s work on both IP and health care covers a wide array of important issues and was recently featured in a New York Times article.

Nic led off with a tour de force analysis of the recent LabMD decision by an ALJ at the FTC, challenging apocalyptic post-mortems of the case in light of Wyndham & extant FTC common law. Frank riffed on Tim Jost’s recent Health Affairs post on deductibles and legislative rulemaking and called for a bit more service journalism at the New York Times when it covers health and education finance.

We then discussed black box medicine and the new challenges posed to both health and patent law by opaque predictive analytics. Consider, for instance, the challenge in even describing such practices for “written description” purposes. Nicholson offered a big picture view on the relative value of patent and trade secrecy law in incentivizing innovation here.

The Week in Health Law Podcast from Frank Pasquale and Nicolas Terry is a commuting-length discussion about some of the more thorny issues in Health Law & Policy. Subscribe at iTunes, listen at Stitcher RadioTunein and Podbean, or search for The Week in Health Law in your favorite podcast app. Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find us on twitter @nicolasterry @FrankPasquale @WeekInHealthLaw

‘The Week in Health Law’ Podcast

By Nicolas Terry

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This week we welcomed back Brietta R. Clark, Associate Dean for Faculty and Professor of Law at Loyola Law School in Los Angeles. Brie is an expert on health care law and inequality.  Her research focuses on the structural defects and biases that create inequity in our health care delivery and financing systems, and the role that law and government regulators play in ensuring equitable access to health care resources.

We began the show with our “lightning round” by discussing a Kentucky Supreme Court case limiting nursing home arbitration agreements in some scenarios. (Interested readers should check out Nic’s prophetic article on malpractice arbitration, and later work citing it.) We briefly mentioned the contraceptive cases granted cert this term, and hope to return to them in a later episode. Continue reading

‘The Week in Health Law’ Podcast

By Nicolas Terry

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This week we are joined by Glenn Cohen, Professor of Law at Harvard Law School and Faculty Director of Harvard’s Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics, and Holly Fernandez Lynch, Executive Director of the PFC and member of the Secretary’s Advisory Committee on Human Research Protections (SACHRP), at the U.S. Department of Health and Human Services.

We discussed the NPRM on the Common Rule, summarized here and here. (Comments are due by December 7th.) Holly and Glenn offered perspectives on the nature and purpose of the proposed revision, and the bioethical aims it served, with a particular focus on the advancement of research. Frank focused on the practical implications for designing consent procedures for learning health care systems. Nic commented on the regulatory complexity arising out of the interaction of HIPAA and HSR protections of data. Podcast listeners will find themes in this episode also engaged in our conversations with Deirdre Madden and Michelle Meyer.

The Week in Health Law Podcast from Frank Pasquale and Nicolas Terry is a commuting-length discussion about some of the more thorny issues in Health Law & Policy. Subscribe at iTunes, listen at Stitcher RadioTunein and Podbean, or search for The Week in Health Law in your favorite podcast app. Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find us on twitter @nicolasterry @FrankPasquale @WeekInHealthLaw

‘The Week in Health Law’ Podcast

By Nicolas Terry

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This week we interview Christy Ford Chapin, author of  Ensuring America’s Health: The Public Creation of the Corporate Health Insurance System (Cambridge University Press, 2015). Chapin is an assistant professor of twentieth-century political history at the University of Maryland, Baltimore County, and a visiting scholar at Johns Hopkins. Her interests include political, business, and economic history as well as capitalism studies. Chapin has won numerous wards including a Miller Center for Public Affairs Fellowship and a John E. Rovensky Fellowship in American Business and Economic History.

Our discussion’s themes included “everything old is new again:” it turns out that many au courant cost-cutting ideas were part of health policy discourse in the 1960s, 50s, and even 40s. We also explored the validity of the conventional wisdom on the rise of employer-sponsored insurance. And we considered what health policy might look like, if it were better informed by history.

The Week in Health Law Podcast from Frank Pasquale and Nicolas Terry is a commuting-length discussion about some of the more thorny issues in Health Law & Policy.

Subscribe at iTunes, listen at Stitcher RadioTunein and Podbean, or search for The Week in Health Law in your favorite podcast app.

Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find us on twitter @nicolasterry @FrankPasquale @WeekInHealthLaw

Worth Reading This Week

By Nicolas Terry

‘The Week in Health Law’ Podcast

By Nicolas Terry

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For our first international episode this week we talked with Professor Deirdre Madden, a leading bioethicist and expert on health law at University College Cork in the Republic of Ireland. Professor Madden was author of the Report on Post-Mortem Practice and Procedure (2005) and Chairperson of the Commission on Patient Safety and Quality Assurance which published its Report, entitled Building a Culture of Patient Safety, in July 2008. She recently co-authored an overview of the national laws on electronic health records in the EU Member States. We opened with a discussion of some current trends in health law, including the EU/US Safe Harbour’s invalidation and recent developments in meaningful use. We then moved on to research regulation, with a brief mention of the US NPRM and more in-depth discussion of biobanking. Deirdre’s discussion of the Guthrie Cards in Ireland should be of great interest to those following developments in newborn screening and tissue storage in the US.

The Week in Health Law Podcast from Frank Pasquale and Nicolas Terry is a commuting-length discussion about some of the more thorny issues in Health Law & Policy.

Subscribe at iTunes, listen at Stitcher RadioTunein and Podbean, or search for The Week in Health Law in your favorite podcast app.

Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find us on twitter @nicolasterry @FrankPasquale @WeekInHealthLaw

‘The Week in Health Law’ Podcast

By Nicolas Terry

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This week we talked with Scott Burris, who is a Professor of Law at Temple Law School, where he directs the Center for Health Law, Policy and Practice, and the Robert Wood Johnson Foundation’s Research on Policy and Law program. He is also a Professor in Temple’s School of Public Health. We discussed Scott’s extraordinary work at the National Coordinating Center for Policies for Action, the Policy Surveillance Program, and the Public Health Law Research National Program Office. Public health law tracking and assessment tools are meant to subject policymaking to rigorous, data-driven studies of comparative effectiveness and cost-benefit analysis. Consider, for example, recent controversies regarding the overall effect of helmet laws. Scott discussed the methodological questions raised by such assessments and law tracking, and new directions for public health law.

The Week in Health Law Podcast from Frank Pasquale and Nicolas Terry is a commuting-length discussion about some of the more thorny issues in Health Law & Policy.

Subscribe at iTunes, listen at Stitcher RadioTunein and Podbean, or search for The Week in Health Law in your favorite podcast app.

Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find us on twitter @nicolasterry @FrankPasquale @WeekInHealthLaw

Symposium “Interprofessional Collaboration in Public Health Law and Policy: Moving the Needle on Social Determinants of Health”

Hall Center for Law and Health: Indiana Health Law Review Symposium, IU McKinney School of Law,  IU Fairbanks School of Public Health, the IU School of Social Work and the IU Center for Interprofessional Health Education and Practice present a cutting edge conference on Interprofessional Collaboration.

Click here for details and registration. Speakers include:Untitled

  • Charity Scott
  • Ross D. Silverman
  • Anna Kirkman
  • Elizabeth Tobin-Tyler
  • Bruce Jansson
  • Peter Jacobson
  • Andrea Pfeifle
  • Micah Berman
  • Heather A. McCabe
  • Eric Wright
  • Corey Davis
  • Chad Priest
  • Fran Quigley
  • Sula Hood
  • Joan Duwve
  • David Orentlicher
  • Nicolas Terry

‘The Week in Health Law’ Podcast

By Nicolas Terry

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This week we interviewed Kirk J. Nahra, Partner at Wiley Rein. As his firm website notes, he “was named as the Co-Chair of the Confidentiality, Privacy, and Security Workgroup, a panel of government and private sector privacy and security experts advising the American Health Information Community (AHIC) on privacy and security issues arising from health information technology,” and has also “been named an expert practitioner by the Guide to the Leading US Healthcare Lawyers, a leading health care lawyer by The Best Lawyers in America directory and one of the leading privacy “hired guns” by Computerworld.” We discussed HITECH, HIPAA, health data outside the HIPAA zone, and the future of health privacy. We also briefly mentioned emerging threats to the US/EU Safe Harbor framework.

The Week in Health Law Podcast from Frank Pasquale and Nicolas Terry is a commuting-length discussion about some of the more thorny issues in Health Law & Policy.

Subscribe at iTunes, listen at Stitcher RadioTunein and Podbean, or search for The Week in Health Law in your favorite podcast app.

Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find us on twitter @nicolasterry @FrankPasquale @WeekInHealthLaw

‘The Week in Health Law’ Podcast

By Nicolas Terry

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This week we discussed Medicare payment policies, the social determinants of health, and changing delivery models with Professor Jessica Lind Mantel, Assistant Professor & Co-Director of the Health Law & Policy Institute at the University of Houston Law Center. Some of Professor Mantel’s many excellent articles on health law & policy are available here.

The Week in Health Law Podcast from Frank Pasquale and Nicolas Terry is a commuting-length discussion about some of the more thorny issues in Health Law & Policy.

Subscribe at iTunes, listen at Stitcher RadioTunein and Podbean, or search for The Week in Health Law in your favorite podcast app.

Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find us on twitter @nicolasterry @FrankPasquale @WeekInHealthLaw