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Back Issues and Articles
Back Issues and Articles

Table of Contents
Table Of Contents
ASLME - [PDF] (Free Download)
American Journal of Law & Medicine Volume 39, Numbers 1 * 2013 - Articles - 7 The Politics of Information: Informed Consent in Abortion and End of-Life Decision Making. Sonia M. Suter - 62 Retiree Out-of-Pocket Healthcare Spending: A Study of Consumer Expectations and Policy Implications. Allison K. Hoffman & Howell E. Jackson - 134 A Time to Step In: Legal Mechanisms for Protecting Those with Declining Capacity. Jalayne J. Arias - Notes and Comments - 160 Am I Liable? The Problem of Defining Falsity Under the False Claims Act. Lonie Kim -182 Recent Case Developments
The Politics of Information: Informed Consent in Abortion and End-of-Life Decision Making
Sonia M. Suter - [PDF]

The politics of reproduction dominate the political landscape now more than ever. One area of controversy has been informed consent statutes for abortion, which have been praised by the pro-life movement but derided by the pro-choice movement. More recently, legislatures have begun to enact informed consent statutes with respect to end-of-life decision making, an area almost as politically controversial as abortion. Like many abortion disclosure laws, some of these have been entitled "Right to Know" statutes. Yet, the supporters and opponents of each set of statutes tend not to be the same, aligning to a large extent based on their place in the culture wars over life and death.
Retiree Out-of-Pocket Healthcare Spending: A Study of Consumer Expectations and Policy Implications
Allison K. Hoffman & Howell E. Jackson - [PDF]

Even though most American retirees benefit from Medicare coverage, a mounting body of research predicts that many will face large and increasing out-of-pocket expenditures for healthcare costs in retirement and that many already struggle to finance these costs. It is unclear, however, whether the general population understands the likely magnitude of these out-of-pocket expenditures well enough to plan for them effectively. This study is the first comprehensive examination of Americans' expectations regarding their out-of-pocket spending on healthcare in retirement. We surveyed over 1700 near retirees and retirees to assess their expectations regarding their own spending and then compared their responses to experts' estimates. Our main findings are twofold. First, overall expectations of out-of-pocket spending are mixed. While a significant proportion of respondents estimated out-of-pocket costs in retirement at or above expert estimates of what the typical retiree will spend, a disproportionate number estimated their future spending substantially below what experts view as likely. Estimates by members of some demographic subgroups, including women and younger respondents, deviated relatively further from the experts' estimates. Second, respondents consistently misjudged spending uncertainty. In particular, respondents significantly underestimated how much individual health experience and changes in government policy can affect individual out-of-pocket spending. We discuss possible policy responses, including efforts to improve financial planning and ways to reduce unanticipated financial risk through reform of health insurance regulation.
A Time to Step In: Legal Mechanisms for Protecting Those with Declining Capacity
Jalayne J. Arias - [PDF]

Current estimates approximate that the population over sixty-five years of age will increase from 40 million in 2010 to 72.1 million by 2030. As society ages, the number of elderly with cognitive deficits that impair decision-making abilities will also increase. This will place additional burdens on families and probate courts seeking to balance individual autonomy with necessary protections. A legal determination of incompetency is a prerequisite to a judicial order appointing a guardianship or other protective mechanism. The current legal-medical model for competency determinations fails to reflect the complexities of declining capacity in an aging population. A global structure for competency determinations leaves a critical gap between competent and incompetent. The gap between competence and incompetence not only raises concerns about how to classify those that fall between the two, but also highlights the lack of legal protections for those within the gap. A revised model is needed to provide protections to individuals who do not yet meet the threshold for incompetence but require additional protections for their personal or financial welfare. This Article provides an unprecedented examination of the legal model for determining competence through a comparison of the medical model for evaluating capacity. While a number of legal scholars have examined the appointment and oversight of guardians, fewer articles have critically examined the process by which individuals are declared incompetent. This Article presents a comprehensive overview of competency and clinical capacity determination procedures, legal mechanisms available to protect individuals with declining capacity, and policy recommendations for improving legal protections in light of inefficiencies related to legal competency determinations.
Notes and Comments
Am I Liable? The Problem of Defining Falsity Under the False Claims Act
Lonie Kim - [PDF]

The Federal False Claims Act (FCA) creates civil liability for entities that falsely or fraudulently contract with the government to provide services or goods in exchange for federal funds. FCA cases often arise in healthcare contexts in which the government pays entities for providing products and services to eligible beneficiaries. With the growth of Medicare and Medicaid funding for healthcare services, there has been a corresponding increase of false claims and FCA cases, in the healthcare context. For instance, of the over $30 billion recovered by the government for FCA cases in the last fifteen years, recoveries from Health and Human Services constitutes over $20 billion.
Recent Court Decisions
Recent Case Developments: Federal Court Hears Challenges to HHS Mandated Contraception Coverage
Chelsea Rutherford - [PDF]

Belmont Abbey College v. Sebelius and Wheaton College v. Sebelius - On December 18, 2012, the U.S. Court of Appeals for the District of Columbia consolidated the Belmont Abbey College v. Sebelius and Wheaton College v. Sebelius cases and held that the claims presented were not ripe for judicial review until the Department of Health and Human Services (HHS) promulgated its promised new Final Rule. The plaintiffs in these cases, the first to be argued at the federal appellate level, contested an HHS regulation that requires most group health plans to cover women's preventative care, including "FDA [Food and Drug Administration] approved contraceptive[s]," without cost sharing. These cases join more than thirty others challenging the regulation, which was promulgated to comply with the Patient Protection and Affordable Care Act (PPACA). The plaintiffs in these cases are Belmont Abbey College, a private Benedictine Catholic college in North Carolina, and Wheaton College, a private Christian liberal arts college in Illinois (collectively, "Plaintiffs"). The Plaintiffs, based on religious moral grounds, strongly object to being forced to offer contraceptives to their employees through their health plans. Under HHS's initial proposed regulation, both religious employers and religiously affiliated organizations would be in violation of the regulation if they refused to cover contraceptive services. The interim final rule, however, authorized HHS's Health Resources and Services Administration (HRSA) to exempt certain employers, namely non-profit churches and religious orders, from compliance with the regulation. The government has implemented a one-year safe harbor to protect organizations like Belmont Abbey and Wheaton Colleges from enforcement but failed to include religious colleges in its final definition of "religious employers." Nevertheless, the government indicated that it plans to work with the colleges and other religious institutions with similar moral concerns to find a way to avoid enforcement after the safe harbor ends.
Recent Case Developments: Attorney-Client Privileged Documents: Federal District Court Limits the Scope of Attorney-Client Privilege Granted Involving In-House Counsel
Judith Kim - [PDF]

United States ex rel. Elin Baklid-Kunz v. Halifax Hospital Medical Center - The United States District Court for the Middle District of Florida upheld in part and denied in part the defendant's assertion of attorney-client privilege over documents submitted to the court. The court granted the privilege narrowly only to documents that sought or reflected legal advice.
Recent Case Developments: Off-Label Promotion Is Protected Speech: Second Circuit Sweeps Away Pharmaceutical Representative's Misbranding Conviction Under the First Amendment
Han Helen Yan - [PDF]

United States v. Caronia - On December 3, 2012, the Second Circuit, in a two-to-one decision, vacated the conviction of a pharmaceutical sales representative for violating the misbranding provisions of the Federal Food, Drug, and Cosmetic Act (FDCA) by promoting truthful off-label uses of a drug approved by the Food and Drug Administration (FDA). The Second Circuit held that: (1) the government prosecuted defendant for his speech; (2) the government's interpretation of the misbranding provisions was content- and speaker-based, which warranted heightened scrutiny; and (3) off-label drug promotion was speech protected by the First Amendment, under the four-prong test set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York.