A Question of Insurance Fraud?

By Scott Burris

No, I mean it: this is a question to Bill of Health readers who know about the law on this topic.

This week, a colleague handed me a palm card she’d been given at a subway station here in Philadelphia. “Cash for diabetic test strips” it read.  Comparing prices on the company’s website with prices on Wal-Mart’s pharmacy page, it looked like the test-strip buyer pays about 20 cents on the dollar for “pre-owned” test strips.

The palm card and the website both stipulate that the strips be unexpired and in their original, unopened, factory-sealed boxes.

So, one asks, are there enough people out there who buy more diabetic test strips than they need, and are willing to take an 80% loss to ensure they are used by someone else? That seems unlikely.

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Needing a Lawyer on the Team

by Wendy Parmet

It’s easy to see the value of including scientists in public health law research teams; most public health lawyers lack the training to conduct rigorous empirical research.  It may be harder to see the need for adding lawyers to the research team, but their presence is no less critical. Sometimes scientists have as much trouble understanding the law as the lawyers have understanding the science.

The value of involving lawyers in public health law research became clear to me recently as I was working on a project relating to health policies affecting immigrants. One question I wanted to know was how the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) affected immigrants’ access to health insurance in the United States.  So I decided to review the scientific literature. The results were dismaying.

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Infrastructural Law: The Lesser-Known Cousin

by Jennifer Ibrahim, PhD, MPH

An article by Julia Costich, MPA, JD, PhD, and Dana Patton, PhD, in the October 2012 edition of the American Journal of Public Health reveals the tip of the iceberg on a highly discussed and yet insufficiently researched topic: the legal infrastructure. While the team reports a significant impact of the legal infrastructure of local health departments on population health outcomes, the paper also raises questions regarding the role of law more generally in the functioning of health departments.

While we “see” law all the time in action, we rarely “see” law as an important factor influencing the way health agencies operate. Sure, we understand law as a way to drive the behavior of individuals by regulating sugar-sweetened beverages or prohibiting texting while driving or preventing smoking in indoor spaces — this is called interventional law — but there is a lesser-known cousin, infrastructural law, that desperately needs our attention.

While public health officials, policy-makers, advocates and academics regularly discuss the funding and organization of health departments at both the state and local levels, they less often step back to think about what is driving the process — law. As states are facing significant fiscal crisis, funds are a major concern, but it is important to remember that appropriations are made through law. Additionally, in recent years, during natural disasters such as hurricanes in the south and major floods in New England, there were questions in the news about which agencies should be doing what and when. The authority for a health department to act and/or to act in concert with another agency is derived from law.

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“Overcriminalization” and HIV

By Scott Burris

The concept of “overcriminalization” is gaining traction across the political spectrum.

The Heritage Foundation, which has a website devoted to the phenomenon, defines it as “the trend in America – and particularly in Congress – to use the criminal law to ‘solve’ every problem, punish every mistake (instead of making proper use of civil penalties), and coerce Americans into conforming their behavior to satisfy social engineering objectives.”   Others, like Michelle Alexander, drop the Ayn Rand tones and focus on mass incarceration as racialized social control. (My colleagues and I once calculated that African American males can expect to spend on average 3.09 years in prison or jail over their lifetime.) Douglas Husak argues that we need a theory of criminalization to help us get less of it.

One of the best examples of criminal law rushing in where angels fear to tread is the criminalization of HIV exposure. From the start, there was reason to fear that these laws would not reduce HIV transmission, and might exacerbate stigma and social hostility towards people with HIV. There was concern they might be used selectively, or just randomly.

This summer, the UN’s Global Commission on HIV and the Law advised states to repeal or abstain from enacting such laws.  The Commission drew on a set of background papers that reviewed the extent of the phenomenon globally and addressed the argument that these laws are justified by moral values even if they are ineffective.

In this country, the President’s National AIDS Strategy suggested states reconsider these laws, but no laws have been repealed and prosecutions continue.  Fortunately, so does research, and it continues to show that these laws are not promoting public health. This week, the American Journal of Public Health published a new PHLR-funded study by Carol Galletley. This video sums up her findings:

Law Professors Organize

By Scott Burris

Over the past fifty years, law has become an important tool for promoting public health – and a site of dramatic social and political contests.  Public health law has been an integral part of “great achievements” in public health that have saved, or enhanced, millions of lives. Increasingly, however, the public health interventions – and the legal theories and values they stand on – have been under steady, sustained and systematic attack.   Further progress is imperiled, and past gains may be rolled back.

Over the Summer, Wendy Parmet and Leo Beletsky of Northeastern University convened a one-day workshop in Boston, called Advancing Public Health through the Law: The Role of Legal Academics.  A lot of smart people in and out of legal academia participated, and it did not take long to get a consensus  that legal academics, alone and in partnership with practitioners in law and public health, need to be more effective and better coordinated in our work.  Part of this has to do with better understanding the forces lined up against effective health laws, and there was enthusiasm for the idea of moving forward on a coordinated strategy to increase our influence and effectiveness as public health law scholars and advocates.

It is vital to be strategic in the face of well-funded and well-organized political efforts to turn back interventions that can save lives. But our long-term success also requires some looking inward.  As people working in public health, we have to ask whether our division into unconnected silos – er, I mean, pillars of excellence – is sustainable. Are tobacco advocates, and harm reductionists, and obesity fighters cooperating, or competing?  As a broad movement, are we effectively focusing our limited resources, or allowing ourselves to be divided and conquered?  Are we right to assume that the public trusts us and accepts our mission as legitimate?  Is our language, our framing, getting tired?

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Evidence for Policy: Nice If You Can Get It

By Scott Burris

Sometimes researchers can tell policy makers pretty confidently what public health law interventions really make a difference. The PHLR website has more than 50 Evidence Briefs that summarize the results of systematic reviews of the evidence on interventional public health laws conducted by the Cochrane and Campbell Collaboratives, and the Community Guide to Preventive Services.. We know, for example, that  there is significant evidence to support water fluoridation as an effective public health intervention aimed at reducing tooth decay (Portland, are you listening?). We know that workplace smoking bans prevent heart attacks. For laws like these, we have numerous high quality studies, sometimes even experiments, that show whether or not the law is effective.

Unfortunately, problems don’t wait for evidence, and usually by the time there is a substantial body of evidence in place to review, most states have already made their policy decisions. What do we do when there is a problem that demands action, but there is no clearly effective legal action to take?

One of these days we’ll blog about what we think should happen. But for now, we can look at what often does happen. Usually, it resembles the fads we see in fashion: One state tries something, and other states follow, until a lot of states are doing something that might, or might not be working.

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The Evolution of Public Health Law Research

By: Scott Burris, JD

Law has been used to protect and promote public health from the early days of European colonization of North America. Quarantine statutes and orders are reported from the mid-17th century. The 1793 yellow fever epidemic in Philadelphia, where our office is based, inspired the federal government’s first public health statute, authorizing relocation of the capital in the event of an outbreak.

By the mid-19th century, sanitarians like Boston’s own Lemuel Shattuck were articulating the idea that a considerable proportion of death and illness was preventable, and arguing that it was moral, feasible, and economical for the state to do the preventing. Law was a primary tool for prevention, and throughout the 19th century, and into the early twentieth, the extent and limitations of federal, state and local public health authority was litigated, debated in legislatures and defined in voluminous treatises by scholars like Freund, Tiedeman and Tobey.

And then, it got quiet.

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Introducing Our Collaborators

Bill of Health is lucky to have lined up a few really great institutional collaborators.  Let’s meet them:

First, HealthLawProf Blog will be cross-posting its material on our site, helping Bill of Health achieve its goal of becoming a true one-stop-shop for news and commentary in health law, biotech, and bioethics.

Second, the folks at the Public Health Law Research Program of the Robert Wood Johnson Foundation (headed up by Temple’s Scott Burris) will be providing regular updates on their great work in empirical public health law.  You can also follow them on:

And last but not least, Yale’s Interdisciplinary Center for Bioethics, which puts together a stellar weekly round-up of recently published bioethics scholarship, op-eds, news items, etc. will be allowing us to post a version of that round-up here.  Check for it on Friday afternoons.

If you’re interested in pursuing an institutional collaboration, please let us know.  Contact Holly Fernandez Lynch, hlynch at law dot harvard dot edu.