Bad Medicine: Parents, the State, and the Charge of ‘Medical Child Abuse’ by Maxine Eichner :: SSRN

December 23, 2016

Doctors and hospitals have begun to level a new charge — “medical child abuse” (MCA) — against parents who, they say, get unnecessary medical treatment for their kids. The fact that this treatment has been ordered by other doctors does not protect parents from these accusations. Child protection officials have generally supported the accusing doctors in these charges, threatening parents with loss of custody, removing children from their homes, and even sometimes charging parents criminally for this asserted overtreatment. Judges, too, have largely treated such charges as credible claims of child abuse.

Despite the rising number of parents faced with these charges, this phenomenon has received no critical attention whatsoever in legal literature. This law review article is the first to explain why, as a legal matter, medical child abuse charges are deeply and fundamentally flawed. It is certainly true that the (likely few) twisted parents who intentionally use the medical system to hurt their children have committed child abuse. Yet the broad definition of MCA developed by doctors captures within its diagnostic net many loving parents making the best decisions they can for their genuinely sick children.

This article demonstrates that the broad definition of MCA developed by physicians and adopted within the child protection system violates the constitutional rights of parents to make medical decisions for their children. Meanwhile, the framing of MCA as a medical “diagnosis” turns what should be a legal decision regarding child abuse into a medical determination, in the process omitting important legal requirements. Finally, the loose diagnostic standards constructed to “diagnose” MCA rest on both flawed science and flawed medical standards. In short, the MCA theory developed by physicians and enforced by child protection officials is bad constitutional doctrine, bad law, bad science, and bad medicine. Any of these flaws in itself should be sufficient to bar the presentation of the theory of MCA in the courtroom. The presence of all these flaws leaves this conclusion beyond doubt.

Source: Bad Medicine: Parents, the State, and the Charge of ‘Medical Child Abuse’ by Maxine Eichner :: SSRN


The Affordable Care Act: Moving Forward in the Coming Years by Lawrence O. Gostin, David A. Hyman, Peter D. Jacobson :: SSRN

December 23, 2016

President Barack Obama signed the Affordable Care Act (ACA) in 2010 with no Republican support. The ACA has been politically divisive ever since, with the House repeatedly voting for repeal. Earlier this year, Congress successfully passed a repeal, with the Senate using a legislative process called “reconciliation,” which requires only a simple majority for certain tax and spending bills. However, Congress failed to override a presidential veto.

President-elect Donald Trump pledged to “repeal and replace” the ACA, but would keep the most popular features: (1) guaranteed issue — health plans must enroll applicants regardless of pre-existing conditions; and (2) dependent coverage — health plans must keep dependent children on their parents plan until age 26. Although his reform package has not been announced, it will likely include health savings accounts (HSAs), cross-border insurance sales, Medicaid block grants to states, and a cap on non-economic damages.

In this Viewpoint, we examine potential reforms of the ACA through the lens of empirical evidence to find whether they are likely to be effective, particularly in ensuring access to health insurance at a reasonable cost, and in a stable insurance market. We conclude that the public has a right to expect their representatives to find common ground and adopt evidence-based policies that expand coverage at a reasonable cost.

Source: The Affordable Care Act: Moving Forward in the Coming Years by Lawrence O. Gostin, David A. Hyman, Peter D. Jacobson :: SSRN


The Cadillac Tax and Its Potential to Transform How Americans Purchase Health Care Services by Richard L. Kaplan :: SSRN

December 23, 2016

This Article examines one of the most contentious provisions of the Affordable Care Act – namely, the 40% excise tax on high-value health insurance provided by employers. This levy, commonly denominated the “Cadillac” tax, is scheduled to take effect in 2020 but has already induced many employers to raise annual deductibles on the health insurance they provide to reduce the value of such insurance and thereby lower their exposure to this new tax. After analyzing the administrative guidance proposed since the Cadillac tax’s enactment, this Article considers how that tax’s effective encouragement of high-deductible health insurance plans has inadvertently made the Health Savings Accounts that President George W. Bush promoted 15 years earlier much more appealing.

Source: The Cadillac Tax and Its Potential to Transform How Americans Purchase Health Care Services by Richard L. Kaplan :: SSRN


Whistleblowers and Safety at Work: An Analysis of Section 11(c) of the Occupational Safety and Health Act by Emily A. Spieler :: SSRN

December 22, 2016

Because the Occupational Safety and Health Administration (OSHA) lacks sufficient resources to enforce the OSH Act effectively in all workplaces, OSHA must rely on workers to bring hazardous conditions to the agency’s attention. Section 11(c) of the Act is designed to protect workers who face retaliation because of safety-related activities. This article provides an analysis of this provision, including a review of administrative interpretations, data on cases that are processed by OSHA, and a summary of the remarkably sparse litigation under this statutory section. The article then compares Section 11(c) to other whistleblower laws that are investigated by OSHA and explores the statute’s troubling weaknesses. Of these weaknesses, the most important is that complainants have no right to pursue a claim on their own after exhausting administrative remedies, and therefore must rely on the Solicitor of Labor to file claims in federal court. A very short statute of limitations and relatively heavy burden of proof for complainants further weaken the effectiveness of this law. While common law or state remedies may be available to employees facing retaliation in some states, the federal statute is a key component of the federal occupational safety and health regulatory regime, and it is in need of amendments that would make it consistent with the stronger whistleblower laws that have been enacted since 1970. In the alternative, OSHA preemption does not preclude states from extending legal protections to safety whistleblowers.

Source: Whistleblowers and Safety at Work: An Analysis of Section 11(c) of the Occupational Safety and Health Act by Emily A. Spieler :: SSRN


Elections, Ideology, and Turnover in the U.S. Federal Government by Alexander Bolton, John M. de Figueiredo, David E. Lewis :: SSRN

December 22, 2016

A defining feature of public sector employment is the regular change in elected leadership. Yet, we know little about how elections influence public sector careers. We describe how elections alter policy outputs and disrupt the influence of civil servants over agency decisions. These changes shape the career choices of employees motivated by policy, influence, and wages. Using new Office of Personnel Management data on the careers of millions of federal employees between 1988 and 2011, we evaluate how elections influence employee turnover decisions. We find that presidential elections increase departure rates of career senior employees, particularly in agencies with divergent views relative to the new president and at the start of presidential terms. We also find suggestive evidence that vacancies in high-level positions after elections may induce lower-level executives to stay longer in hopes of advancing. We conclude with implications of our findings for public policy, presidential politics, and public management.

Source: Elections, Ideology, and Turnover in the U.S. Federal Government by Alexander Bolton, John M. de Figueiredo, David E. Lewis :: SSRN


‘My [Electronic] Health Record’ – Cui Bono (for Whose Benefit)? by Danuta Mendelson, Gabrielle Wolf :: SSRN

December 22, 2016

We examine the operation of Australia’s national electronic health records system, known as the “My Health Record system”. Pursuant to the My Health Records Act 2012 (Cth), every 38 seconds new information about Australians is uploaded onto the My Health Record system servers. This information includes diagnostic tests, general practitioners’ clinical notes, referrals to specialists and letters from specialists. Our examination demonstrates that the intentions of successive Australian Governments in enabling the collection of clinical data through the national electronic health records system, go well beyond statutorily articulated reasons (overcoming “the fragmentation of health information”; improving “the availability and quality of health information”; reducing “the occurrence of adverse medical events and the duplication of treatment”; and improving “the coordination and quality of healthcare provided to healthcare recipients by different healthcare providers”). Not only has the system failed to fulfil its statutory objectives, but it permits the wide dissemination of information that historically has been confined to the therapeutic relationship between patient and health practitioner. After considering several other purposes for which the system is apparently designed, and who stands to benefit from it, we conclude that the government risks losing the trust of Australians in its electronic health care policies unless it reveals all of its objectives and obtains patients’ consent to the use and disclosure of their information.

Source: ‘My [Electronic] Health Record’ – Cui Bono (for Whose Benefit)? by Danuta Mendelson, Gabrielle Wolf :: SSRN


Health Care Quality Reporting: A Failed Form of Mandated Disclosure? by Kristin M. Madison :: SSRN

December 22, 2016

The recently published book by Professors Omri Ben-Shahar and Carl E. Schneider, More Than You Wanted to Know: The Failure of Mandated Disclosure, imparts valuable lessons and offers food for thought for “disclosurites” of all sorts. The book’s sensible arguments and voluminous evidence cutting across a broad range of regulatory areas should lead readers to question the advisability of mandated disclosure as a regulatory strategy. At the same time, however, the broad sweep of their work constrains their ability to offer comprehensive assessments of the advisability of particular disclosure policies, leaving readers to wonder whether there are exceptions to the authors’ general claim, and if so, what form they might take.

In this essay, I explore the possibility that quality reporting might be just such an exception. While quality reporting suffers from many of the problems that Ben-Shahar and Schneider have identified, evidence suggests quality reporting can make a difference. But assessing the net impact of quality reporting is no easy task. The policy objectives underlying governmental quality reporting initiatives are significantly broader than the goal at the heart of Ben-Shahar’s and Schneider’s analysis, complicating efforts to assess the initiatives’ success. The initiatives’ costs are also challenging to evaluate, in part because they support not just public reporting, but also other benefit-producing activities. After discussing these and other complexities that highlight the limits of Ben-Shahar’s and Schneider’s analysis, the essay calls for the development of a framework that lays out key characteristics of disclosure mandates and the environments in which they operate, so that we can develop a better understanding of the characteristics associated with mandate success.

Source: Health Care Quality Reporting: A Failed Form of Mandated Disclosure? by Kristin M. Madison :: SSRN