By Nicolas Terry
I welcome two excellent guests this week, Jorge Contreras and Mark Lemley.
Our discussion begins with broad questions regarding the role of intellectual property in both promoting innovation and protecting against fakes during the pandemic.
By Alexa Richardson
As the coronavirus pandemic threatens to overwhelm the health care system, states have responded by broadly suspending licensure laws for health care providers.
The collective rollback of licensure laws is an opportunity for states to reexamine their priorities around provider licensing, and to pursue values like access to care and evidence-based scope of practice over protection of provider interest groups.
By James W. Lytle
Katrina Jirik’s compelling post on the dangers posed to people with disabilities if care is rationed during the COVID-19 pandemic powerfully characterizes discriminatory allocation criteria as a form of “updated eugenic thought” that cannot be reconciled with the Americans with Disabilities Act and other anti-discrimination statutes.
I worry, however, that persons with disabilities and other vulnerable populations face an even graver threat: policymakers may unintentionally adopt policies that neglect to consider the unique needs of persons with disabilities and inadvertently place them at much greater risk.
By Chloe Reichel
This post is the first in a series of question and answer pieces with Rina Spence about hospital administration and the COVID-19 pandemic.
The COVID-19 pandemic has brought numerous challenges to hospitals and hospital administrators: equipment shortages for both patients and health care workers; steep declines in revenue; and attendant staffing concerns.
Rina K. Spence served as the president and CEO of Emerson Hospital in Concord, MA from 1984 through 1994. Currently, Spence is an advisor to the Precision Medicine, Artificial Intelligence, and the Law Project at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.
Spence spoke with the Petrie-Flom Center to offer her perspective on the challenges hospitals are facing amid the COVID-19 pandemic. The conversation touched on: the basics of hospital administration; the business-like model by which many hospitals are run; unpopular decisions hospitals are making during the pandemic, like furloughing some staff and slashing retirement benefits; and steps forward in addressing the COVID-19 crisis at the hospital-level.
The COVID-19 pandemic has raised many health law, policy, and bioethical questions. The Petrie-Flom Center is working hard to address many of the issues raised by the pandemic through our scholarship, events, and commentary in the news.
In the interest of sharing this knowledge, the Petrie-Flom Center has collected these resources on a new page on our website. In addition to a list of featured resources is a broader collection of our work on COVID-19. The page is dynamic and frequently updated. Check it out here.
On March 30, 2020 the Department of Health and Human Services (HHS) announced a partial waiver of some key elements of the Stark Law, a health care fraud and abuse law. The purpose of this waiver is to relax some of the fraud and abuse requirements around physician compensation during the COVID-19 pandemic to allow hospitals and physician groups to think creatively about meeting the needs of an overworked and stressed workforce. It also provides us an opportunity to consider the post-pandemic future of the Stark Law, long thought to be an impediment to innovative payment and delivery models.
By Mark A. Hall and David M. Studdert
Every public health crisis poses unique legal and ethical challenges, but none more so in modern times than the novel coronavirus pandemic. Urgent responses to the pandemic have halted movement and work and dramatically changed daily routines for most of our population in ways entirely unprecedented. As we wrote recently, this sweeping response challenges a host of civil liberties that state and federal statutes and constitutions protect. It should come as no surprise, then, that we are starting to hear widespread grumbling. There are even reports of some initial “protest” lawsuits. But even without overt legal challenges, public health officials are well attuned to the need to respect civil liberties in setting appropriate policies. And, if those officials are not well-attuned, politicians, who are concerned about widespread economic fallout, will forcefully remind them.
It follows that there is a pressing need for a set of principles to guide not just the imposing of COVID-type restrictions, but also relaxing or lifting them.
By Jonathan M. Marron, Louise P. King, and Paul C. McLean
In medical ethics, we often speak of duties, such as the duty one has to patients, to society, to our families, to ourselves. In fact, deontology is a moral theory often cited in medical ethics based primarily on the consideration and application of such duties.
But we typically speak of duties under “normal” circumstances, and normal certainly does not describe the current COVID-19 pandemic. It is unclear whether and how our typical conceptualization of duties – the duty of clinicians, of health care institutions, and of the public – apply under these unprecedented conditions. These questions are being considered in our hospitals, living rooms, the lay press, and on social media.
What follows is an edited version of a Twitter dialogue between surgeon Louise P. King and pediatric oncologist Jonathan Marron, both faculty members at the Harvard Medical School Center for Bioethics. Drs. King and Marron were responding to a tweet by Paul McLean, social media editor at the Center for Bioethics, on his personal account.
By Katrina N. Jirik, PhD
As health care resources grow increasingly scarce amid the COVID-19 pandemic, states, hospitals, and individuals are forced to make tough decisions about the rationing of care. These decisions are often framed in terms of medical and/or legal criteria. However, many people, especially the physicians who make the difficult decisions, realize they have a huge moral component related to perceptions of the value of an individual’s life.
Various states have triage guidelines in place, which differ somewhat, but primarily reflect a utilitarian goal of saving the most people with the least expenditure of finite resources. This is where the societal issue of the value of the life of a person with a disability comes into play.
By Govind Persad
On March 28, 2020, the Department of Health and Human Services issued guidance regarding the application of antidiscrimination law to triage policies — that is, policies for fairly allocating scarce medical treatments, like ventilators, in the COVID-19 pandemic.
Many news outlets incorrectly portrayed HHS as prohibiting triage guidelines from considering disability. But the guidance is more nuanced.