Dimensions of Equality in Regulating Assisted Reproductive Technologies

Although concerns about individual liberty and the nature and extent of reproductive freedom have tended to dominate discussions regarding the proliferation of and access to reproductive technologies, questions about the implications of assisted reproductive technologies (ARTs) for equality have also arisen. Despite the high number of invocations of equality in the literature regarding ARTs, to date little effort has been made to comprehensively examine the implications of ARTs for equality. This short Article seeks to highlight the variety of equality issues that ARTs present and to develop a framework for classifying different types of equality issues. Specifically, I suggest that three different types of equality concerns exist relevant to discussions about regulating ARTs: equality of access to ARTs (and thus parenthood), equal treatment in the resolution of disputes arising from the use of ARTs, and equality issues raised by trait-selection practices. My point herein is neither to condemn nor to rationalize the inequalities that close examination may reveal. This Article instead issues a challenge to scholars in the field to undertake a broader, more thorough consideration of the implications for equality that the development of, and regulation or non-regulation of, ARTs present

Discrimination Against the Unhealthy in Health Insurance

This is the published version

Giving Meaning to Meaningful Access in Medicaid Managed Care

As states seek to shift Medicaid recipients with disabilities out of traditional fee-for-service settings and into managed care plans, vexing questions arise about the impact on access to needed care and providers for beneficiaries with medically complex needs. With many states expanding their Medicaid program as part of health care reform and cost-containment pressures continuing to mount, this movement will likely accelerate over the next several years. This Article examines the possibility that disability discrimination law might provide a mechanism for prodding states in the planning stage to anticipate and plan for likely access issues, as well as for challenging any systemic access problems that arise as enrollment proceeds. Although the Supreme Court’s 1985 decision in Alexander v. Choate signaled a reluctance to use disability discrimination law to police the decisions of state Medicaid policy makers, Choate’s holding need not be an insurmountable barrier if compulsory enrollment in Medicaid managed care has an adverse disparate impact on people with disabilities. Before they can compel managed care enrollment for many disabled Medicaid beneficiaries, state officials must obtain approval from the federal Centers for Medicare & Medicaid Services (CMS). This Article argues that the process of obtaining CMS approval lays the foundation for a disparate impact claim under § 504 of the Rehabilitation Act and the Americans with Disabilities Act. More specifically, it argues that access-related standards contained in states’ waiver applications – if those standards are not met – can support a claim that a state fails to provide disabled Medicaid enrollees with “meaningful access” to the state’s Medicaid benefits. Such a claim should be cognizable, even under Choate. Thus, this Article provides a conceptual roadmap for disability advocates for framing such a claim, while also highlighting both the advantages of this approach and its potential shortcomings

Non-Profit Hospitals, Tax Exemption and Access for the Uninsured

I want to approach the topic of tax exemption for non-profit hospitals from the perspective of the 46 plus million Americans who have no health insurance and the significant additionalnumber whom we might characterize as underinsured. In essence, persons who are underinsured have some form of health coverage but they remain at serious risk for significant out-of-pocket expenditures when they become sick. From this perspective, the key question is what role, if any, do the non-profit health care sector and, more particularly, non-profit hospitals have to play in addressing the vexing problems posed by the large number of uninsured and underinsured. We tend to think of these problems primarily, although not exclusively, as problems of access

Infected Judgment: Legal Responses to Physician Bias

Substantial evidence indicates that clinically irrelevant patient characteristics, including race and gender, may at times influence a physician\u27s choice of treatment. Less clear, however, is whether a patient who is the victim of a biased medical decision has any effective legal recourse. Heedful of the difficulties of designing research to establish conclusively the role of physician bias, this article surveys published evidence suggesting the operation of physician bias in clinical decision making. The article then examines potential legal responses to biased medical judgments. A patient who is the subject of a biased decision may sue her doctor for violating his professional duties, including his fiduciary obligation to the patient. Courts may be unwilling, however, to expand the scope of physicians\u27 professional liability beyond existing medical malpractice law. While federal anti-discrimination laws may prohibit some instances of biased medical decisions, those laws leave many instances of physician bias unaddressed. Moreover, those laws typically would require a patient to prove that her doctor acted intentionally in discriminating, a daunting task if the physician\u27s bias is unconscious, as is probably often the case. Finally, under either a professional liability action or a civil rights suit, the patient faces the fundamental problem of proving that bias in fact infected her physician\u27s judgment. Because of these difficulties, the article concludes that existing law does not provide a ready remedy for a patient who is the victim of a biased medical decision

Threats to Medicaid and Health Equity Intersection

The year 2017 proved politically tumultuous in the U.S. on many fronts, but perhaps none more so than health care. For enrollees in the Medicaid program, it was a “year of living precariously.” Long-promised Republican efforts to repeal the Affordable Care Act also took aim at Medicaid, with proposals to fundamentally restructure the program and drastically cut its federal funding. These proposals provoked pushback from multiple fronts, including formal opposition from groups representing people with disabilities and people of color and individual protesters. Opposition by these groups should not have surprised the proponents of “reforming” Medicaid. Both people of color and people with disabilities carry disproportionate burdens of ill health and face more significant barriers to accessing quality health care than other groups. As a consequence, the Medicaid program is particularly important to both groups. Ultimately, defensive strategies by people with disabilities and people of color helped stymy both the efforts at “repeal and replace” and proposed changes to Medicaid. This successful advocacy raises a question about what other health-related concerns people with disabilities and people of color share. Considering these groups’ interests in contemporary Medicaid policy issues is a good place to start. To that end, this Article explores the relevance of race to states’ Medicaid expansion choices and the vulnerability of community-based services for people with disabilities in the event of funding cuts to Medicaid. I also suggest that marginalized groups may share similar concerns relating to Medicaid policy initiatives in two additional areas: growing interest in Medicaid work requirements and experiments with adopting value-based payment models for Medicaid providers. These are areas where collaborative advocacy may enhance the ability of people of color and people with disabilities to protect their common interest