The Role of ERISA Preemption in Health Reform: Opportunities and Limits

The Employee Retirement Income Security Act (ERISA) is a federal law regulating the administration of private employer-sponsored benefits including health benefits (i.e., health insurance offered by an employer). In general, since the federal government has exercised its authority to preempt state regulation of the administration of private employer-sponsored health plans, states are blocked from enforcing laws interfering with ERISA. As many states pursue health care reform experiments, ERISA preemption becomes relevant as a potential limit on the scope and type of reforms states are able to enact. The dominant trend in ERISA litigation has been to preempt state legislation and litigation interfering with the administration of private employer sponsored health plans, making large-scale state health care reform initiatives difficult. The purpose of this paper is to examine the trajectory of judicial interpretation of ERISA and to discuss what opportunities exist to facilitate health care initiatives given the constraints of ERISA preemption

Reducing Distracted Driving: Regulation and Education to Avert Traffic Injuries and Fatalities

In this article, we consider the legal and policy implications of distracted driving (the tendency of people to use electronic devices while operating a motor vehicle). After reviewing the empirical evidence showing that distracted driving has serious adverse consequences, we discuss the legal basis for governmental interventions to reduce distracted driving. These interventions include laws restricting the use of electronic devices while driving, especially sending text messages. Since drivers have at best a reduced expectation of privacy, these restrictions should easily survive legal challenges. At the same time, it is important to consider the responsibility of automobile manufacturers to improve safety though design changes. We also advocate health education to change social norms to reduce distracted driving

Teaching Health Law

Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/98778/1/j.1748-720X.2011.00598.x.pd

A Framework to Measure the Value of Public Health Services

To develop a framework that public health practitioners could use to measure the value of public health services. Data Sources . Primary data were collected from August 2006 through March 2007. We interviewed ( n =46) public health practitioners in four states, leaders of national public health organizations, and academic researchers. Study Design . Using a semi-structured interview protocol, we conducted a series of qualitative interviews to define the component parts of value for public health services and identify methodologies used to measure value and data collected. Data Collection/Extraction Methods . The primary form of analysis is descriptive, synthesizing information across respondents as to how they measure the value of their services. Principal Findings . Our interviews did not reveal a consensus on how to measure value or a specific framework for doing so. Nonetheless, the interviews identified some potential strategies, such as cost accounting and performance-based contracting mechanisms. The interviews noted implementation barriers, including limits to staff capacity and data availability. Conclusions . We developed a framework that considers four component elements to measure value: external factors that must be taken into account (i.e., mandates); key internal actions that a local health department must take (i.e., staff assessment); using appropriate quantitative measures; and communicating value to elected officials and the public.Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/74681/1/j.1475-6773.2009.01013.x.pd

Establishing New Legal Doctrine in Managed Care: A Model of Judicial Response to Industrial Change

Courts are struggling with how to develop legal doctrine in challenges to the new managed care environment. In this Article, we examine how courts have responded in the past to new industries or radical transformations of existing industries. We analyze two historical antecedents, the emergence of railroads in the nineteenth century and mass production in the twentieth century, to explore how courts might react to the current transformation of the health care industry. In doing so, we offer a model of how courts confront issues of developing legal doctrine, especially regarding liability, associated with nascent or dramatically transformed industries. Our model of doctrinal change includes five steps. The first step is the emergence of a nascent or transformed industry. In the second step, courts attempt to apply old doctrine to the nascent industry, resulting in a doctrinal mismatch with the realities of the new industry. When faced with this dilemma, the third step is that courts tend-implicitly or explicitly-to establish new legal doctrine that favors the industry. Then, in the fourth step, a backlash against the industry sets in while courts reassess rules favoring the industry. The last step is the emergence of a new doctrinal method of holding the nascent industry more fully accountable for its operations. After setting forth the model and its limitations, we discuss the implications for how courts have responded to the advent of managed care. Our historical analysis suggests that courts are reluctant to interfere with emerging market arrangements, such as managed care\u27s cost containment practices. Eventually, courts tend to find new ways to achieve greater accountability, largely arising from tort law concepts

Restoring Health to Health Reform: Integrating Medicine and Public Health to Advance the Population\u27s Wellbeing

The Patient Protection and Affordable Care Act is a major achievement in improving access to health care services. However, evidence indicates that the nation could achieve greater improvements in health outcomes, at a lower cost, by shifting its focus to public health. By focusing nearly exclusively on health care, policy makers have chronically starved public health of adequate and stable funding and political support. The lack of support for public health is exacerbated by the fact that health care and public health are generally conceptualized, organized, and funded as two separate systems. In order to maximize gains in health status and to spend scarce health resources most effectively, health care and public health should be treated as two interactive parts of a single, unified health system. The core purpose of health reform ought to be the improvement of the population’s health. We propose five criteria that would significantly advance this goal: prevention and wellness, human resources, a strong and sustainable health infrastructure, robust performance measurement, and reduction of health disparities. Although the Patient Protection and Affordable Care Act includes provisions addressing these criteria, population health is not a central focus of the reform. In order to guide health reform implementation and to inform future health reform efforts, we offer three major policy reforms: changing the environment to incentivize healthy behavioral choices, strengthening the public health infrastructure at the state and local levels, and developing a health-in-all policies strategy that would engage multiple agencies in improving health incomes. Adopting these reforms would facilitate integration and dramatically improve the population’s health, particularly when compared to the health gains likely to be realized from a continued focus on access to health care services

Assessing Laws and Legal Authorities for Obesity Prevention and Control

This is the first paper in a two part series on the laws and legal authorities for obesity prevention and control, which resulted from the National Summit on Legal Preparedness for Obesity Prevention and Control in 2008. In this paper, the authors apply the “laws and legal authorities” component of the Centers for Disease Control and Prevention (CDC) legal framework on public health legal preparedness to demonstrate the essential role that law can play in the fight against obesity. Their analysis identified numerous laws and policies in the three vital domains of healthy lifestyles, healthy places, and healthy societies. For example, in terms of healthy lifestyles, governments can impact nutrition through: food subsidies, taxation, and bans; food marketing strategies; and nutritional labeling and education. With regard to healthy places, state and local governments can apply zoning laws and policy decisions to change the environment to encourage healthy eating and physical activity. Governments can promote healthy societies through laws and legal authorities that affect the ability to address obesity from a social perspective (such as antidiscrimination law, health care insurance and benefit design, school and day care for children, and surveillance). This paper describes instances of how current laws and legal authorities affect the public health goal of preventing obesity in both positive and negative ways. It also highlights the progressive use of laws at every level of government (i.e., federal, state, and local) and the interaction of these laws as they relate to obesity prevention and control. In addition, general gaps in the use of law for obesity prevention and control are identified for attention and action. (These gaps serve as the basis for the companion paper, which delineates options for policymakers, practitioners, and other key stakeholders in the improvement of laws and legal authorities for obesity prevention and control.