Monthly Round-Up of What to Read on Pharma Law and Policy

By Ameet Sarpatwari and Aaron S. Kesselheim

Each month, members of the Program On Regulation, Therapeutics, And Law (PORTAL) review the peer-reviewed medical literature to identify interesting empirical studies, in-depth analyses, and thoughtful editorials on pharmaceutical law and policy.

Below are the papers identified from the month of January. The selections feature topics ranging from the relationship between pharmaceutical marketing and innovation, to an analysis of off-label promotion rulings by the United Kingdom Prescription Medicines Code of Practice Authority, to the trends in direct-to-consumer advertising of prescription pharmaceuticals. A full posting of abstracts/summaries of these articles may be found on our website.

  1. Arnold DG, Troyer JL. Does Increased Spending on Pharmaceutical Marketing Inhibit Pioneering Innovation? J Health Polit Policy Law. 2016 Jan 5. [Epub ahead of print].
  2. Barbour V, Burch D, Godlee F, Heneghan C, Lehman R, Perera R, Ross JS, Schroter S. Characterisation of trials where marketing purposes have been influential in study design: a descriptive study. Jan;17(1):31.
  3. Choudhry NK, Denberg TD, Qaseem A; Clinical Guidelines Committee of the American College of Physicians. Improving Adherence to Therapy and Clinical Outcomes While Containing Costs: Opportunities From the Greater Use of Generic Medications: Best Practice Advice From the Clinical Guidelines Committee of the American College of Physicians. Ann Intern Med. 2016;164(1):41-9.
  4. Greene JA, Anderson G, Sharfstein JM. Role of the FDA in Affordability of Off-Patent Pharmaceuticals. 2016 Jan 4. [Epub ahead of print].
  5. Kesselheim AS, Hwang TJ. Breakthrough Medical Devices and the 21st Century Cures Act. Ann Intern Med. 2016 Jan 19. [Epub ahead of print].
  6. Lieberman DA, Polinski JM, Choudhry NK, Avorn J, Fischer MA. Medicaid prescription limits: policy trends and comparative impact on utilization. BMC Health Serv Res. 2016;16(1):15.
  7. Vilhelmsson A, Davis C, Mulinari S. Pharmaceutical Industry Off-label Promotion and Self-regulation: A Document Analysis of Off-label Promotion Rulings by the United Kingdom Prescription Medicines Code of Practice Authority 2003-2012. PLoS Med. 2016;13(1):e1001945.
  8. Wu MH, Bartz D, Avorn J, Seeger JD. Trends in Direct-to-Consumer Advertising of Prescription Contraceptives. 2016 Jan 22. [Epub ahead of print].

Blinding as a Solution to Bias

Blinding Bias

We’re pleased to announce that a new book by Petrie-Flom Center affiliates Christopher Robertson and Aaron Kesselheim will be available this week.  The edited volume — Blinding as a Solution to Bias: Strengthening Biomedical Science, Forensic Science, and Law — grew from a 2013 conference at Harvard co-sponsored by the Petrie-Flom Center.  From the fascinating history of blinding (starting in Ben Franklin’s living room to test the healing powers of Mesmerism) to the sham surgeries being used today, and the future novel uses of blinding in the courts, the book moves the debate forward.  What are the advantages and limitations of blinding compared to other solutions for biases? How can we quantify the biases in unblinded research? Can we develop new ways to blind decision-makers?  What are the ethical problems with withholding information?  Fundamentally, questions about who needs to know what open new doors of inquiry for the design of scientific research studies, regulatory institutions, and courts.  With a foreword by Larry Lessig, the book surveys the theory, practice, and future of blinding, drawing upon leading authors with a diverse range of methodologies and areas of expertise, including medicine, law, forensic sciences, philosophy, economics, psychology, sociology, and statistics.  It is available for pre-order from the publisher and Amazon.com.

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

Breaking News: NAM Releases Report on Mitochondrial Replacement Therapy (Part II My First Take)

By I. Glenn Cohen

My last post was a summary of the NAM’s Recommendations on Mitochondrial Replacement Therapy (MRT). Now here is my take on the report. But keep in mind the report was just released and all I could give it was a quick read, so these are really more like initial impressions: Continue reading

Breaking News: NAM Releases Report on Mitochondrial Replacement Therapy (Part I Summary)

By I. Glenn Cohen

As readers know I’ve written on mitochondrial replacement therapy and its attendant ethical and regulatory issues. Today the National Academy of Medicine (formerly known as the IOM) released a terrific report today with its recommendations. I’ll have a second post with my reactions but here is a summary from the report of their recommendations. The big headline is they have recommended FDA largely move towards allowing it to go forward under a regulatory pathway with restrictions, the most important of which is the transfer only of male embryos (to avoid germ-line issues).

In the NAM’s own words:

Recommendation 1: Initial clinical investigations of mitochondrial replacement techniques (MRT) should be considered by the U.S. Food and Drug Administration (FDA) only if and when the following conditions can be met: Continue reading

NEXT WEEK (2/10) Fetal Pain: An Update on the Science and Legal Implications

fetalpain_slideFetal Pain: An Update on the Science and Legal Implications
February 10, 2016 12:00 PM
Wasserstein Hall, Milstein East C
Harvard Law School, 1585 Massachusetts Ave., Cambridge, MA

Amanda Pustilnik, JD and Maureen Strafford MD will discuss fetal pain, including advances in neuroscience and treatment and their implications for the law. Continue reading

REGISTER NOW! (3/29) The Future of Health Law and Policy: The Petrie-Flom Center’s 10th Anniversary Conference Celebration

PFC 10th Logo-Horizontal-Otlns-FnlThe Future of Health Law and Policy: The Petrie-Flom Center’s 10th Anniversary Conference Celebration
March 29, 2016 8:00 AM – 5:00 PM
Wasserstein Hall, Milstein East ABC
Harvard Law School, 1585 Massachusetts Ave., Cambridge, MA

The Petrie-Flom Center is celebrating its first decade and kicking off the next by looking at the future of health law and policy!

Please join us as we bring together Petrie-Flom and other prominent Harvard Law School alumni to discuss major trends, developments, and open questions in the fields of health law policy, biotechnology, and bioethics. We’ll hear about the founder’s vision for the Center and the Dean’s perspective on the Center’s influence within the Harvard Law School community and beyond. Center Leadership will discuss what we have accomplished in the first ten years, and more important, our plans for the future. Alan Weil JD ’89, Editor-in-Chief of Health Affairs, will deliver the keynote address.

Agenda

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Genomic data sharing: How much oversight is necessary?

By Mahsa Shabani

Introducing data sharing practices into the genomic research has brought a number of concerns in research ethics and governance to the fore. For instance, research participants and the general public raised concerns about potential privacy issues in personal genomic data protection, as well as the scope of the secondary uses. In order to address such concerns, Data Access Committees (DACs) were seen crucial in the governance of main genomic databases such as the database of Genotypes and Phenotypes (dbGaP) and the European Genome-phenome Archive (EGA). Surprisingly, the component of access review, the structure, and the functionality of such committees have been barely scrutinized to date.

In a recent study published in Genetics in Medicine, we solicited the opinion of 20 DAC members and experts on genomic data access. Specifically, the interviewees were asked about the goals of access review and their experiences with reviewing the ethical and scientific aspects of proposals. The respondents unanimously agreed that the complexity of the access review should correspond with the concerns associated with genomic data sharing. In this regard, privacy risks often seemed possible, yet were not viewed as an imminent threat. The respondents could only recall a few examples of re-identification of genomic data in the past, yet could not promise full privacy protection given the evolving nature of the field. Regardless of the scarcity of such incidents, the controlled-access model is generally considered necessary to maintain public trust. As a DAC member put it: “I think the future of science depends upon high levels of public trust and you can only have high levels of public trust if people feel the data sharing is being managed.” Continue reading

Discussion of Drug Addiction: Is It All About Race?

By: Matthew Ryan

During the Presidential primary season, one public health issue has gotten particular attention: heroin drug addiction. Candidates from both parties have spoken eloquently and passionately about the need to resolve drug addiction with public health solutions. The current language and proposals are far different from tough law-and-order rhetoric from the 1980s during the cocaine addiction epidemic. These differences should not be overlooked: they should inform how race impacts our perceptions as both public health practitioners and policy-makers.

In a post on Medium, Jeb Bush spoke vulnerably about his daughter’s heroin addiction. He wrote, “As a father, I have felt the heartbreak of drug abuse. I never expected to see my precious daughter in jail… She went through hell… and so did I.”

Carly Fiorina has also spoken powerfully about losing her stepdaughter to drug addiction. In an email to supporters, she was emphatic, “If you’re criminalizing drug abuse and addiction, you’re not treating it—and you’re part of the problem.” Continue reading

Hospitals’ Exposure to Products Liability Suits

By Alex Stein

The United States District Court for the District of Connecticut has recently delivered an important decision that opens up new possibilities for suing hospitals and clinics. This decision allowed a patient alleging that hospital employees injected her with a contaminated medication to sue the hospital in products liability. Gallinari v. Kloth, — F.Supp.3d —- (U.S.D.C. D.Conn. 2015), 2015 WL 7758835. Continue reading

Monday, Feb. 1, Health Law Workshop with Michelle Mello

HLS Health Law Workshop: Michelle Mello

February 1, 2016 5:00 – 7:00 PM
Hauser Hall 105
Harvard Law School, 1575 Massachusetts Ave., Cambridge, MA 02138

Presentation Title: “Reforming the Medical Liability System in New York: Outcomes of the New York State Medical Liability Reform and Patient Safety Demonstration Project.” To request a copy in preparation for the workshop, please contact Jennifer Minnich at jminnich at law.harvard.edu.

Michelle M. Mello is Professor of Law at Stanford Law School and Professor of Health Research and Policy at Stanford School of Medicine. She is a leading empirical health law scholar whose research is focused on understanding the effects of law and regulation on health care delivery and population health outcomes. She holds a joint appointment at the Stanford University School of Medicine in the Department of Health Research and Policy. Continue reading

TOMORROW, 1/29! Fourth Annual Health Law Year in P/Review Symposium


MORE SEATS AVAILABLE! Fourth Annual Health Law Year in P/Review
January 29, 2016 8:00 AM – 5:00 PM
Wasserstein Hall, Milstein West AB 
Harvard Law School, 1585 Massachusetts Ave., Cambridge, MA

The Fourth Annual Health Law Year in P/Review symposium will feature leading experts discussing major developments during 2015 and what to watch out for in 2016. The discussion at this day long event will cover hot topics in such areas as health insurance, health care systems, public health, innovation, and other issues facing clinicians and patients.

In addition to presenting at the conference, many of our speakers will write about their topics for a collaborative blog series that will begin in February 2016 on the Health Affairs Blog.

This year’s Health Law Year in P/Review is sponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, the New England Journal of MedicineHealth Affairs, the Hastings CenterHarvard Health Publications at Harvard Medical School, and the Center for Bioethics at Harvard Medical School, with support from the Oswald DeN. Cammann Fund at Harvard University.

Agenda Continue reading

Why Asset Tests Need Reform

The penalty for Bostonian jaywalkers can take dollars out of repeat offenders wallets. The $1 fine for jaywalking in the Massachusetts metropolis may be a ridiculous example of statutory dollar figures losing their significance, but the statutory dollar figures associated with Medicaid eligibility are anything but a laughing matter for millions of families.

The eligibility requirements around Medicaid expansion have ended the decades old practice of limiting assets for Medicaid coverage for children and parents. However, in order to qualify for many existing Medicaid programs, the elderly and people with disabilities in many states must still verify that their assets fall below a certain dollar figure. Oftentimes, this dollar figure is statutory and requires state legislatures to act in order to have the figure rise with inflation.

Asset tests were first incorporated into Medicaid law under the original legislation because welfare benefits required strict means and asset tests. These levels were determined at the state level. As eligibility was separated from welfare eligibility, specific dollar figures on assets were added to eligibility criteria and were meant to curb enrollment by “welfare queens” or people that qualify for social assistance fraudulently or with significant assets. President Reagan first campaigned on the concept of “welfare queens” in his failed 1976 bid for the presidency. But these fraudulent cases that the policy is meant to restrict are limited and more often the imposed asset tests prevent working-age adults from reducing dependency on social welfare programs.

Continue reading

Seeking Research on How Policies, Laws, and Regulations Can Help Build a Culture of Health

With the focus to generate actionable evidence to guide legislators and other policymakers, public agencies, educators, advocates, community groups, and individuals, the RWJF Policies for Action Program has launched its first Call for Proposals (CFP).

Research should inform the significant gaps in our knowledge regarding how policies can serve as levers to improve population health, well-being, and equity. Approximately $1.5 million will be awarded through this CFP.

An informational webinar will take place on Tuesday, February 16 from 1-2p.m. ET, where Director of P4A, Scott Burris, JD, will answer any questions you may have.

Webinar

 

 

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.

Latest News from the Petrie-Flom Center!

Check out the January 22nd edition of the Petrie-Flom Center’s biweekly e-newsletter for the latest on events, affiliate news and scholarship, and job and fellowship opportunities in health law policy and bioethics.

Featured in this edition:


UPDATED AGENDA: Fourth Annual Health Law Year in P/Review
January 29, 2016 8:00 AM – 5:00 PM
Wasserstein Hall, Milstein East C 
Harvard Law School, 1585 Massachusetts Ave., Cambridge, MA

The Fourth Annual Health Law Year in P/Review symposium will feature leading experts discussing major developments during 2015 and what to watch out for in 2016. The discussion at this day long event will cover hot topics in such areas as health insurance, health care systems, public health, innovation, and other issues facing clinicians and patients.

In addition to presenting at the conference, many of our speakers will write about their topics for a collaborative blog series that will begin in February 2016 on the Health Affairs Blog.

Continue reading

‘The Week in Health Law’ Podcast

By Nicolas Terry

twihl 14x14

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

Four Key Issues In Health Law That Are As Relevant As Ever In 2016

Petrie-Flom’s Executive Director Holly Fernandez Lynch has a new post over at the Health Affairs Blog as the first entry in a series that will stem from our Fourth Annual Health Law Year in P/Review conference, to be held at Harvard Law School on Friday, January 29, 2016.

In it, Holly takes stock of which major issues in health law policy remain outstanding from years past, and which are coming down the pike, including:

  • The ACA (and the contraceptives coverage mandate, in particular)
  • The state of health care reform generally
  • Efforts to control health care costs
  • Emerging regulatory pathways to speed patient access to new products
  • And more…

Read the full post here.