Playing God: The Legality of Plans Denying Scarce Resources to People with Disabilities in Public Health Emergencies

Public health emergencies can arise in a number of different ways. They can follow a natural disaster, such as Hurricane Katrina, the 2004 tsunami, and the recent earthquakes in Haiti and Chile. They may be man-made, such as the September 11 attacks and the anthrax scare. They may also be infectious. While no pandemic flu has yet reached the severity of the 1918 flu, there have been several scares, including avian flu and most recently H1N1. Few questions are more ethically or legally loaded than determining who will receive scarce medical resources in the event of a widespread public health emergency. The answer will often mean the difference between life and death for affected Americans. Despite this reality, or perhaps because of it, there has been little guidance from the federal and state governments on how to prioritize distribution of those resources among individuals. To fill this gap, some public health and medical organizations promulgated protocols that set forth a hierarchy of resource allocation in response to the predicted H1N1 pandemic. Although these efforts at advance planning are to be lauded, they raise a number of troubling civil rights issues. Several of the protocols exclude some people with disabilities from receiving care even when their disabilities do not affect the likely success of the medical interventions at issue. Both the legality of such plans and the ethical implications of promoting the health of the community at the expense of people with disabilities are highly problematic. This Article explores the legality of the proposed allocation protocols under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. It also evaluates their compatibility with the ethical principles that guide public health decisions and discusses their implications for people with disabilities in the preplanning for public health emergencies

A concentrated certificate program incorporating Experiential Education: helping students prepare for a career in the dynamic area of Health Law

Law students who wish to practice in the area of health law must acquire knowledge, skills, and values that are necessary for them to have an understanding of the legal issues that challenge lawyers and that prepare them for life-long learning in this rapidly growing and changing industry. This paper explores how a concentrated health law certificate program provides students a focused path through the law curriculum. Not only does the program require students to take a range of health law courses, but students take multiple courses that incorporate experiential learning, including clinics, externships, and other courses that integrate clinical teaching methodology. This article highlights the development of a health law certificate program, designed to guide students through the law curriculum to choose among the most beneficial courses for a health law practice. To identify the necessary courses, health law faculty and health law practitioners first explored the knowledge, skills and values that a successful health law practitioner needs. This article also examines the process of developing and implementing the certificate program

The Impact of Disability: A Comparative Approach to Medical Resource Allocation in Public Health Emergencies

It is a matter of time before the next widespread pandemic or natural disaster hits the United States (U.S.). The international response to the 2009 H1N1 influenza stands as a cautionary tale about how prepared the world is for such an emergency. Although the pandemic fortunately proved to be less severe than initially anticipated, it nevertheless resulted in shortages of medical equipment, overburdened hospitals, and preventable patient deaths, particularly among young people. A pandemic will inevitably lead to difficult decisions about the allocation of medical resources, such as who will have priority access to ventilators and critical care beds when demand exceeds supply. We previously evaluated the protocols public health and medical organizations have promulgated to guide allocation decisions in a public health emergency. We concluded that many of these protocols violate U.S. law and ethics with respect to people with disabilities, because they exclude some people with disabilities from receiving care altogether or because of a need for prolonged use of resources, poor “quality of life,” or limited long-term prognosis. Because the legal and social status of people with disabilities is tied to underlying societal attitudes toward impairments, cultural differences between populations may lead to significantly different distributive outcomes. In this paper, we examine other countries’ approaches to the allocation problem in public health emergencies, both to identify other approaches to these challenging problems and to provide insight into how to develop more equitable policies to guide allocation decisions during a public health emergency in the U.S

Measuring the Impact of Social Justice Teaching: Research Design and Oversight

Research and the production of scholarship is a fundamental part of being a legal academic. Such endeavors identify issues and answer questions that further understanding of the law, the profession, and the justice system itself. Research and scholarship in the legal academy traditionally meant the study of law and legal theory. A growing body of legal academics are focusing research and scholarship on legal education itself, as well as research that measures the impact of legal education on the development of students\u27 practical and professional skills. The impact of clinical legal education is an important aspect of this scholarship. This article explores how thoughtfully designed research projects can measure the impact of social justice teaching, using examples and experience gleaned from the evaluation and research component of a medical legal partnership and its affiliated law school clinic. The article examines principles of good research design, the art of formulating research questions, and the potential uses for resulting data. It also identifies critical steps and issues to consider when developing a research project

Constitutional Confidentiality

Federal Certificates of Confidentiality (“Certificates”) protect sensitive information about human research subjects from disclosure and use in judicial, administrative, and legislative proceedings at both the state and federal levels. When they were first authorized by Congress in the 1970s, Certificates covered sensitive information collected in research about drug addiction use. Today, however, they extend to virtually all personal information gathered by biomedical research studies. The broad reach of Certificates, coupled with their power to override state subpoenas and warrants issued in the context of law enforcement, abortion regulation, and other police powers typically under state control, beg the question whether Certificates are constitutional. This Article, for the first time, examines the fundamental constitutional underpinnings of Certificates and situates them within the context of federal statutory privilege law. In so doing, it makes several contributions to the existing literature. First, after a brief background about Certificates and other congressional action relating to biomedical research, this Article argues that the Certificate statute creates a federal statutory privilege. To date, the language of privilege has been wholly absent from discussions of Certificates and their reach. Yet understanding the Certificate as a privilege provides well understood nomenclature and legal principles for applying the Certificate statute. Second, this Article locates the primary constitutional authority undergirding the Certificate statute in the Commerce Clause. Third, this Article argues that Congress’s power to tax and spend provides further constitutional grounding for Certificates, at least with respect to federally-funded researchers and institutions. For both bases of constitutional authority, this Article maps new territory, yielding clarity where there has previously been uncertainty. Fourth, this Article brings together constitutional doctrines limiting both congressional power and evidentiary privileges to illuminate how these doctrines may require Certificate protections to give way in exceptional cases. In so doing, it bridges traditional constitutional law and evidence law, reaping insights from their intersection from which scholars in both fields may benefit. Finally, this Article considers the implications of this constitutional analysis not only on Certificates, but also on congressional action aimed at regulating human subjects research more generally and on the law surrounding federal statutory privileges

Louisville Coronavirus Surveillance Program

An important feature of COVID-19, the disease produced by the new coronavirus SARS-CoV-2, is the high number of health care workers (HCWs) that acquire the disease. In an initial report of 138 patients hospitalized with COVID-19 pneumonia in China, 40 patients (29%) were HCWs. One reason why HCWs are at higher risk of acquiring COVID-19 is because some patients with COVID-19 are admitted to the hospital without the classical presentation, and are therefore not tested for the disease early during hospitalization. Presently in the US, it is recommended to test for COVID-19 when physicians suspect the disease. This subjective approach may allow hospital transmission of COVID-19 from patients without the classical clinical presentation. The primary objective of this study is to establish a surveillance system for early identification of patients hospitalized with COVID-19 to allow for early implementation of infection control interventions in an attempt to prevent transmission of COVID-19 to HCWs and other hospitalized patients. We are proposing to test all patients who present to the emergency departments and/or are hospitalized with signs and symptoms of respiratory infection or gastrointestinal infection for SARS-CoV-2, regardless of clinical suspicion of COVID-19. Biological samples obtained from all patients having symptoms of respiratory or gastrointestinal infection will be tested using real-time polymerase chain reaction (RT-PCR) for detection of SARS-CoV-2. Using a robotic instrument, the CMP laboratory will be able to test more than 500 samples a day. Data will be reported in real-time to participating hospitals for rapid implementation of infection control measures