Category: Blog Symposia

A Disproportionate Share Payment Calculation Case in the Post-Chevron Era

The Petrie-Flom Center Staff Leave a comment

By Zack Buck

Yet another case that examines the authority of administrative agencies to interpret health care laws will make its way to the Supreme Court next term. And the case could have major implications for hospital financing as well.

In June 2024, the U.S. Supreme Court granted cert in Advocate Christ Medical, et al. v. Becerra, a case that centers on the appropriate calculation of so-called disproportionate share hospital (DSH) payments, which are made to hospitals that treat a high percentage of low-income patients. The Supreme Court will review a 2022 D.C. District Court summary judgment decision for the defendants as affirmed in 2023 by the DC Circuit Court of Appeals.

Read More

Evidence and Authority in Abortion Law

The Petrie-Flom Center Staff Leave a comment

by Rachel Rebouché

Two years after deciding the case that overturned a constitutional right to abortion, the Supreme Court heard two cases on abortion law this term. The first involved a challenge to the U.S. Food and Drug Administration’s approval and regulation of mifepristone, the first drug in a medication abortion. The second concerned the intersection of Idaho’s state abortion ban, which has no exceptions for medical emergencies, and the application of the federal law, the Emergency Medical Treatment and Labor Act (EMTALA), which requires that emergency departments stabilize patients needing emergency care in Medicare-funded hospitals.

Read More

The Ever-Expanding Right to Refuse to Provide Healthcare

The Petrie-Flom Center Staff Leave a comment

by Elizabeth Sepper

For the past decade, a blockbuster religion law case has been a feature of every Supreme Court term. The Court dramatically eased the ability of employers to claim religious exemptions. It overturned long-standing Establishment Clause precedent. And it revolutionized Free Exercise Clause doctrine to favor objectors to public health measures and antidiscrimination laws.  With no religious liberty claim on the docket, the 2023-24 term promised to be the exception.

Nevertheless, in a pair of abortion cases, the Court took the opportunity to broadly interpret federal conscience law to override patients’ rights to emergency care. The first, Food and Drug Administration v. Alliance for Hippocratic Medicine (AHM), challenged the FDA’s approval of mifepristone, the abortion pill. The second, Moyle v. United States, involved the conflict between state abortion bans and the Emergency Medical Treatment and Labor Act (EMTALA), a federal law that requires life- and health-saving care, including abortion, in emergency departments. Neither seemed to implicate the Church Amendment of 1973, which allows individual providers and institutions to refuse to perform or participate in abortion for religious or moral reasons.

Read More

Another Weapon in the Arsenal: Ghost Guns, the Second Amendment and the Downfall of the Administrative State

The Petrie-Flom Center Staff Leave a comment

by Michael R. Ulrich

Many advocates, legal scholars, and public health researchers concerned about the gun violence epidemic in the United States have viewed the Supreme Court’s Second Amendment doctrine as the greatest barrier to reform. A rare victory for the government, announced at the end of the 2023 Supreme Court term, may signal a modest retreat from the Court’s 2022 holding that historical antecedents are the sole dictator of constitutionality. Whether optimism is warranted or not, a new blockade has emerged in 2024. Gun control may be caught in the crosshairs of the Court’s commitment to dismantling the administrative state. With Garland v. VanDerStok, which concerns restrictions on ghost guns, slated for the current term, advocates, scholars, and researchers may soon discover that the Court’s crackdown on federal agencies poses an obstacle to gun regulation comparable to that of the Second Amendment.

Read More

Inter-Loper: Loper Bright and Judicial Intrusion on Agency Prerogatives

The Petrie-Flom Center Staff Leave a comment

by Nathan Cortez

If you wanted quick medical advice, you’d ask your friend with an MD or BSN. Not a JD. Likewise, if you wanted to know how to regulate nitrogen oxide under the Clean Air Act, you’d probably trust the scientists at Environmental Protection Agency (EPA) over the judges on a court that referred to the gas as nitrous oxide (laughing gas). But under the Supreme Court’s recent opinion in Loper Bright Enterprises v. Raimondo, a 6-3 conservative majority ruled that courts get the final say on such matters.

Loper Bright was a blockbuster decision, though not unexpected. Here, I’ll discuss what it might mean for health agencies like the EPA, U.S. Food and Drug Administration (FDA), and Department of Health Human Services (HHS).

Read More

Supreme Court Preview: Key Health Law Issues for the 2024 Term

The Petrie-Flom Center Staff Leave a comment

This post launches a new Digital Symposium: Supreme Court Preview: Key Health Law Issues for the 2024 Term, guest edited by Cary Franklin, Professor of Law, McDonald/Wright Chair of Law, and Faculty Director of the Center on Reproductive Health, Law, and Policy and the Williams Institute at UCLA Law; and Lindsay F. Wiley, Professor of Law and Faculty Director of the Health Law and Policy Program at UCLA Law.

by Cary Franklin and Lindsay F. Wiley

The Supreme Court’s decisions have important and long-lasting effects on health care access, the public’s health, health equity, and the power of communities to create healthier living and working conditions. In the days leading up to the Court’s 2024 term, this symposium explores how the Court is dramatically restructuring individual rights and governmental and private institutional powers and responsibilities related to health.

Read More

Pursuing an Interstate Medical Telemedicine Registration Compact

The Petrie-Flom Center Staff Leave a comment

by Tara Sklar

Because I believe strongly in the benefits of telehealth, I have obtained licenses in six states through the Interstate Medical Licensure Compact. Doing this took months, cost thousands of dollars, and still leaves me unable to care virtually for patients in 43 states. The process is so cumbersome that less than 1% of physicians use it.

This quote is from a January 2024 op-ed by Dr. Shannon MacDonald, a radiation oncologist at Mass General Brigham who uses telehealth to provide specialty care across state lines. Her frustration is felt by many providers and patients who view the patchwork of state-specific licensing requirements as a major obstacle hindering telehealth’s widespread integration into the health care ecosystem.

Read More

The Life-Changing Benefits of Lifting State Licensure Restrictions for Telemedicine

The Petrie-Flom Center Staff Leave a comment

by Shannon M. MacDonald

“M” was diagnosed with a rare skull-based cancer.  A one-in-a-million diagnosis, he was given little information about his diagnosis and told he must seek care outside his home state.  “M” worked full time, was the primary caretaker for two young kids, and could not fathom how he could travel to another state for treatment. He did not come to his scheduled out-of-state appointment. It was just too difficult. “M” was fortunate to have an older daughter who became involved in his healthcare, but she worked full time, had three young kids, and lived in a state far from her dad.  Flying to join her father to help coordinate health care in person would have meant time away from work, obtaining childcare, and the expense of a flight and hotel.

Read More

Advancing Access to Health Care Through Federal Medical Licensure Reciprocity for Clinical Trials

The Petrie-Flom Center Staff Leave a comment

By Helen Hughes and Mark Sulkowski

As physicians who have dedicated our careers to clinical research and to the advancement of telemedicine respectively, we’ve witnessed first-hand the transformative power of technology in health care. However, despite our progress over the last four years, there remains a glaring barrier to the potential of telehealth in the United States: the complex, state-based system of health care licensure. This system significantly restricts patient access to specialized care, especially for those who could benefit from participating in clinical trials. It’s time for Congress to enact legislation allowing for federal reciprocity of medical licensure, a move that could revolutionize clinical research in this country.

Read More

Advancing Healthcare Equity: Federal Licensure Reciprocity for Physicians Caring for Transplant Patients and Donors

The Petrie-Flom Center Staff Leave a comment

By Rebecca Canino, Anne R. Links, and Fawaz Al Ammary

In the face of a growing organ donation crisis in the United States, characterized by a decline in donors and a surge in transplant waitlists, it has become increasingly clear that existing regulatory barriers impede access to critical transplant services. One solution lies in dismantling the artificial barrier of state-based medical licensure, a move that holds the potential to significantly enhance access for both donors and recipients of organ transplants. During the COVID-19 Public Health Emergency (PHE), the United States Department of Health & Human Services demonstrated flexibility by superseding state licensure mandates, thereby allowing providers with valid medical licensure in one state to care for patients in all states. This resulted in tangible improvements in outcomes for donors and recipients alike and prompted a notable surge in telemedicine usage, which not only streamlined evaluations but also mitigated the financial burdens (approximately $5000 per donor) and the logistical complexities associated with in-person consultations, particularly for out-of-state living donors.

Read More