Substance Use Disorder Insurance Benefits: A Survey of State Benchmark Plans

Professor Tovino presents the results of a survey of state benchmark health plan coverage of substance use disorder treatments and services, including treatments and services for opioid use disorder

Neuroimaging Research into Disorders of Consciousness: Moral Imperative or Ethical and Legal Failure?

This article explores the ethical and legal implications of enrolling individuals with disorders of consciousness (DOC) in neuroimaging research studies. Many scientists have strongly emphasized the need for additional neuroimaging research into DOC, characterizing the conduct of such studies as morally imperative. On the other hand, institutional review boards charged with approving research protocols, scientific journals deciding whether to publish study results, and federal agencies that disburse grant money have limited the conduct, publication, and funding of consciousness investigations based on ethical and legal concerns. Following a detailed examination of the risks and benefits of neuroimaging research involving individuals with DOC, the author urges IRBs, scientific journals, and funding agencies to no longer stall the conduct, publication, and funding of neuroimaging research into DOC if certain criteria designed to protect the health and safety of individuals with DOC are satisfied

Going Rogue: Mobile Research Applications and the Right to Privacy

This Article investigates whether nonsectoral state laws may serve as a viable source of privacy and security standards for mobile health research participants and other health data subjects until new federal laws are created or enforced. In particular, this Article (1) catalogues and analyzes the nonsectoral data privacy, security, and breach notification statutes of all fifty states and the District of Columbia; (2) applies these statutes to mobile-app-mediated health research conducted by independent scientists, citizen scientists, and patient researchers; and (3) proposes substantive amendments to state law that could help protect the privacy and security of all health data subjects, including mobile-app-mediated health research participants

Of Mice and Men: On the Seclusion of Immigration Detainees and Hospital Patients

With a special focus on federal provisions strictly regulating Medicare-participating hospitals\u27 use of seclusion, this Article uses developments in health law as a lens through which the uses and abuses of seclusion in immigration detention centers might be assessed and through which the standards governing detention centers might be improved. In particular, this Article argues that the unenforceable standards governing seclusion in immigration detention, including the most recent version of ICE\u27s Performance-Based National Detention Standards, were incorrectly modeled on correctional standards developed for use in jails and prisons with respect to convicted criminals. This Article asserts that correctional standards are inappropriate guidelines for use in the immigration detention context. Borrowing the philosophy behind legally enforceable federal patients\u27 rights laws that govern the use of seclusion in hospitals, this Article proposes to reform the unenforceable standards governing the use of seclusion in immigration detention centers. It takes a novel approach by proposing to correct the abuse of the seclusion intervention in immigration detention by drawing on established frameworks in health law and bioethics. Specifically, this Article highlights the philosophical differences between federal health laws that are designed to protect the health, safety, and welfare of hospital patients and ICE\u27s unenforceable standards that fail to protect immigration detainees. It offers nine specific recommendations that, if promulgated by the Department of Homeland Security into federal regulations, would improve the health, safety, and welfare of immigration detainees

Privacy for Student-Patients: A Call to Action

Consider a law student who has a mental or reproductive health issue that the student wishes to keep private. If the student seeks care at an off-campus health clinic that is not affiliated with the student’s law school or university, the student typically has a number of federally enforceable privacy rights. For example, the federal HIPAA Privacy Rule will typically apply and prohibit the clinic from disclosing the student’s protected health information to professors, parents, and other third parties without the student’s prior written authorization. The law student also will have the right to receive a notice of privacy practices, the right to request further privacy restrictions, the right to obtain paper and electronic copies of medical records, the right to amend incorrect medical record entries, the right to receive an accounting of medical record disclosures, the right to ask privacy-related questions of an institutional privacy officer, and the right not to be intimidated, threatened, coerced, or discriminated against for exercising these rights. The HIPAA Security Rule also will typically apply, requiring the clinic to implement administrative, physical, and technical safeguards designed to protect the confidentiality, integrity, and availability of the student’s electronic protected health information. Finally, if the off-campus clinic discovers a breach of the student’s unsecured protected health information, the HIPAA Breach Notification Rule will typically apply, requiring the clinic to report the breach to the student, the federal government and, in certain cases, prominent media outlets serving the jurisdiction. If the law student seeks care at a health center affiliated with the student’s university, however, the story will be completely different. This is because the medical records that result from the student’s encounter with the student health center—called student treatment records—are excepted from the definition of protected health information under the HIPAA Privacy, Security, and Breach Notification Rules. Student treatment records also are excepted from the definition of education records under the Family Educational Rights and Privacy Act of 1974 (FERPA), the major federal statute that requires federally funded academic institutions to protect the privacy of such records. These exceptions exist because Congress, in late 1974, expressed its intent that student treatment records be protected only by state law. Unfortunately, state law provides minimal protections for student treatment records. This Article responds to the need for greater privacy, security, and breach notification protections for student treatment records. After reviewing a number of privacy and security breaches involving colleges and universities and the patchwork of federal and state law that fails to adequately protect student treatment records, this Article shows that many student health centers provide students with confusing information (at best) and misleading or incorrect information (at worst) regarding their privacy, security, and breach notification protections. After providing several practical, political, and health policy justifications for amending federal law, this Article re-writes relevant statutory and regulatory provisions in FERPA and HIPAA. If the proposals set forth in this Article are implemented by the federal government, student treatment records will receive the maximum privacy, security, and breach notification protections available currently available under the law

Of Mice and Men: On the Seclusion of Immigration Detainees and Hospital Patients

With a special focus on federal provisions strictly regulating Medicare-participating hospitals\u27 use of seclusion, this Article uses developments in health law as a lens through which the uses and abuses of seclusion in immigration detention centers might be assessed and through which the standards governing detention centers might be improved. In particular, this Article argues that the unenforceable standards governing seclusion in immigration detention, including the most recent version of ICE\u27s Performance-Based National Detention Standards, were incorrectly modeled on correctional standards developed for use in jails and prisons with respect to convicted criminals. This Article asserts that correctional standards are inappropriate guidelines for use in the immigration detention context. Borrowing the philosophy behind legally enforceable federal patients\u27 rights laws that govern the use of seclusion in hospitals, this Article proposes to reform the unenforceable standards governing the use of seclusion in immigration detention centers. It takes a novel approach by proposing to correct the abuse of the seclusion intervention in immigration detention by drawing on established frameworks in health law and bioethics. Specifically, this Article highlights the philosophical differences between federal health laws that are designed to protect the health, safety, and welfare of hospital patients and ICE\u27s unenforceable standards that fail to protect immigration detainees. It offers nine specific recommendations that, if promulgated by the Department of Homeland Security into federal regulations, would improve the health, safety, and welfare of immigration detainees

Complying with the HIPAA Privacy Rule: Problems and Perspectives

Twenty years ago, President Clinton signed the Health Insurance Portability and Accountability Act of 1996 (HIPAA) into law. Over the past two decades, the federal Department of Health and Human Services (HHS) has published several sets of rules implementing the Administrative Simplification provisions within HIPAA as well as the Health Information Technology for Economic and Clinical (HITECH) Act within the American Recovery and Reinvestment Act (ARRA). These rules include a final rule governing the use and disclosure of protected health information by covered entities and their business associates (Privacy Rule). This Article addresses the question of what it means for covered entities and business associates to comply with the Privacy Rule. In particular, this Article will examine the challenges covered entities and business associates face in attempting to comply with the Privacy Rule while delivering and supporting the delivery of health care in an administratively responsible and financially feasible manner. Part I of the Article summarizes the history of the Privacy Rule, including the many proposed rules, interim final rules, final rules, guidance documents, and resolution agreements published by HHS. Part II reviews the Privacy Rule’s theory of and approach to health information confidentiality. Part III identifies three themes relating to Privacy Rule compliance

Scientific Understandings of Postpartum Illness: Improving Health Law and Policy?

In its broadest sense, this Article examines the relationship between science and the law in the context of postpartum illness. From classical antiquity to the present day, physicians and scientists have investigated the causes, correlates, and consequences of the depressions and psychoses that develop in some women following their transition to motherhood. The scientific investigation of postpartum illness has been characterized by an open-ended search for knowledge with the recognition that scientific findings published one day are subject to revision the next. Legislators and judges also have sought to understand postpartum illness as necessary to make laws that affect and adjudicate disputes involving new mothers, although legal inquiries regarding postpartum illness have yielded factual findings that are fixed in time. When the results of scientific research and legal research are compared in the context of postpartum illness, several differences emerge, perhaps because science and law share neither a common process nor common goals. This Article resolves these differences and develops a new organizing principle for understanding illness; that is, a unified health law framework that limits distinctions between physical and mental illness

Functional Neuroimaging and the Law: Trends and Directions for Future Scholarship

Under the umbrella of the burgeoning neurotransdisciplines, scholars are using the principles and research methodologies of their primary and secondary fields to examine developments in neuroimaging, neuromodulation, and psychopharmacology. The path for advanced scholarship at the intersection of law and neuroscience may clear if work across the disciplines is collected and reviewed and outstanding and debated issues are identified and clarified. In this article, I organize, examine and refine a narrow class of burgeoning neurotransdiscipline scholarship; that is, scholarship at the interface of law and functional magnetic resonance imaging

Aborted Confidentiality

As the number of abortion-restricting laws continues to grow in the wake of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, law enforcement officers are increasingly interested in obtaining and using reproductive health information for law enforcement purposes. Although physicians and other covered entities generally are required to keep protected health information (PHI) confidential under the Health Insurance Portability and Accountability Act Privacy Rule, a number of regulatory exceptions historically have permitted covered entities to disclose PHI for civil, criminal, and administrative investigations and proceedings. On April 26, 2024, the Department of Health and Human Services promulgated a final rule amending certain of these exceptions. In particular, the final rule prohibits covered entities from using and disclosing PHI to conduct criminal, civil, and administrative investigations into any person for the mere act of seeking, obtaining, providing, or facilitating re- productive health care that is lawful under the circumstances in which it is provided. The final rule also prohibits covered entities from using and disclosing PHI to impose criminal, civil, and administrative liability on any person, or to identify any person, for the same purposes. Covered entities must comply with these new prohibitions by December 23, 2024. Using five hypotheticals as a platform, this Article carefully analyzes the final rule in terms of protecting the confidentiality of reproductive health information, supporting shared physician-patient decision making, and burdening vulnerable populations. Finding that the final rule continues to undermine the physician- patient relationship, discourage individuals from seeking health care from licensed health care providers, and burden racial and ethnic minorities, individuals with disabilities, individuals of low socioeconomic status, and other marginalized individuals in certain situations, this Article proposes additional amendments to the final rule that will better balance health information confidentiality and law enforcement activities in the context of reproductive health