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Back Issues and Articles
Back Issues and Articles

Table of Contents
Table Of Contents
AJLM - [PDF] (Free Download)
American Journal Of Law & Medicine Volume 40, Number 1 * 2014 Articles: 7. Jimmo and the Improvement Standard: Implementing Medicare Coverage Through Regulations, Policy Manuals, and Other Guidance Jennifer E. Gladieux & Michael Basile 26. Public Assistance, Drug Testing, and the Law: The Limits of Population-Based Legal Analysis Candice T. Player 85. Combating the Prescription Painkiller Epidemic: A National Prescription Drug Reporting Program Joanna Shepherd Notes and Comments: 113. A Voice in the Room: The Function of State Legislative Bans on Sexual Orientation Change Efforts for Minors Arcangelo S. Cella 141. Bias at the Gate?: The Pharmaceutical Industry's Influence on the Federally Approved Drug Compendia Lindsey Gabrielsen 164. Recent Case Developments
Articles
Jimmo and the Improvement Standard: Implementing Medicare Coverage Through Regulations, Policy Manuals and Other Guidance
Jennifer E. Gladieux and Michael Basile - [PDF]

In Jimmo v. Sebelius, the plaintiffs alleged that the Centers for Medicare and Medicaid Services (CMS) regularly and improperly denied Medicare reimbursement for outpatient therapy treatment when the beneficiary did not show a likelihood of improvement. These denials, based on policy manuals and other guidance, appear to contradict the government's own regulations, which specifically prohibit coverage denials based solely on the so-called "Improvement Standard." In Jimmo, the United States District Court for the District of Vermont found that CMS' use of the Improvement Standard may have violated the rulemaking provisions of the Administrative Procedure Act (APA) and denied CMS' motion for summary judgment. Subsequently, the parties settled out of court.
Public Assistance, Drug Testing, and the Law: The Limits of Population-Based Legal Analysis
Candice T. Player - [PDF]

In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues-not unlike law and economics-as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still, population-based analysis is not without its problems. At times, Parmet claims too much territory for the population perspective. Moreover, Parmet urges courts to recognize population health as an important norm in legal reasoning. What should we do when the insights of public health and conventional legal reasoning conflict? Still in its infancy, population-based analysis offers little in the way of answers to these questions. This Article applies population-based legal analysis to the constitutional problems that arise when states condition public assistance benefits on passing a drug test, thereby highlighting the strengths of the population perspective and exposing its weaknesses.
Combating the Prescription Painkiller Epidemic: A National Prescription Drug Reporting Program
Joanna Shepherd - [PDF]

Prescription painkiller abuse is the fastest growing drug problem in the United States. In the past year, approximately one out of twenty Americans reported misuse or abuse of prescription painkillers. Several factors contribute to the prescription painkiller epidemic. Drug abusers use various methods-such as doctor shopping, paying with cash, and filling prescriptions in different states-to avoid detection and obtain prescription painkillers for illegitimate uses. A few rogue physicians and pharmacists, lured by substantial profits, enable drug abusers by illegally prescribing or supplying controlled substances. Even ethical physicians rarely have adequate training to recognize and address prescription drug abuse, and as a result, prescribe painkillers to patients who are not using them for legitimate medical purposes. Similarly, although the majority of pharmacies have taken steps to combat drug abuse and reduce prescription painkiller dispensing, under current reporting systems, pharmacists lack visibility into several important indicators of drug abuse. As a result, even the most vigilant pharmacists find it extremely difficult to identify and detect drug abuse with certainty.
A Voice in the Room: The Function of State Legislative Bans on Sexual Orientation Change Efforts for Minors
Arcangelo S. Cella - [PDF]

Throughout the history of the mental health profession, many psychotherapists have asserted that homosexuality is a mental condition or defect that may be corrected through treatment. Homosexuality was not officially declassified as a mental illness until 1973, and it was not until recently that mainstream mental health organizations renounced the claim that therapy can alter sexual orientation. Sexual orientation change efforts (SOCE) involve various types of psychotherapy, from the familiar and seemingly benign talk therapy to forms of behavioral therapy that include "masturbatory reconditioning, rest, visits to prostitutes[,] excessive bicycle riding," and even physical abuse. SOCE are now widely regarded by mainstream mental health practitioners as unscientific, ineffective, and mentally and emotionally harmful. Nevertheless, due to persistent societal disapproval of homosexuality, some mental health providers continue to engage in SOCE, often causing their patients to experience shame and anxiety well into adulthood.
Bias at the Gate?: The Pharmaceutical Industry's Influence on the Federally Approved Drug Compendia
Lindsey Gabrielsen - [PDF]

As of 2002, the Federal Food and Drug Administration (FDA) had approved Neurontin, a drug developed by the pharmaceutical company Pfizer, for two uses, the treatment of epilepsy and pain related to shingles. A staggering ninety-four percent of Neurontin prescriptions in the prior five years, however, were for other (non-FDA) approved uses. These other uses effectively tripled Medicaid's costs for the drug between 1998 and 2003. Insurance companies covered the off-label uses because they appeared in the Drugdex compendium, a federally authorized listing of drugs that includes evidence regarding the drug's effectiveness, clinical indications, and proper dosing. Drugdex included an additional forty-eight uses for Neurontin, ranging from bipolar disorder to the hiccups. Two other federally approved compendia existed at that time; one listed seven uses for Neurontin while the other listed only one.
Recent Court Decisions
Recent Case Developments: Wisconsin District Court Extends EMTALA Whistleblower Protections to Non-Employee Physicians
Nicholas Falcone - [PDF]

Wisconsin District Court Extends EMTALA Whistleblower Protections to Non-Employee Physicians - Muzaffar v. Aurora Health Care Southern Lakes, Inc. - On November 27, 2013, the United States District Court for the Eastern District of Wisconsin held that a non-employee physician who has been extended privileges at a hospital is an employee of that hospital for purposes of the Emergency Medical Treatment and Active Labor Act's (EMTALA) whistleblower provision. The decision, which prevents hospitals from retaliating against privileged physicians who report alleged EMTALA violations, changes the landscape of incentives with respect to illegal patient dumping under the law.
Recent Case Developments: Denying Abortion Providers Access to a Patient Compensation Fund is not Unconstitutional
Christine Donovan - [PDF]

Denying Abortion Providers Access to a Patient Compensation Fund is not Unconstitutional - K.P. v. Leblanc - The United States Court of Appeals for the Fifth Circuit unanimously held that a Louisiana statute which denies abortion providers access to a patient compensation fund does not violate the Fourteenth Amendment Due Process Clause or place an undue burden on a woman's right to choose to have an abortion.
Recent Case Developments: Nebraska Supreme Court Rules a Minor in Foster Care Seeking an Abortion Must Obtain Foster Parents Consent
Tulsi A. Patel - [PDF]

Nebraska Supreme Court Rules a Minor in Foster Care Seeking an Abortion Must Obtain Foster Parents Consent - In re Anonymous 51 - In a per curiam decision, the Nebraska Supreme Court held that for the purposes of Nebraska's Abortion Consent Law, a sixteen-year-old female must obtain consent from her foster parents before she can choose to obtain an abortion, despite her legal status as a ward of the State of Nebraska.
Recent Case Developments: General Release Signed by Qui Tam Relator Does Not Bar Later Suits By Other Relators Alleging the Same Fraud
Hannah Fine - [PDF]

General Release Signed by Qui Tam Relator Does Not Bar Later Suits By Other Relators Alleging the Same Fraud - United States ex rel. May v. Purdue Pharma L.P.1 - The Fourth Circuit recently held that a general release signed by an individual bars False Claims Act2 (FCA) suits by that individual, but does not bar later actions brought by other qui tam relators alleging the same fraudulent acts.