Regulating Privacy in Public/Private Space: The Case of Nursing Home Monitoring Laws

May 13, 2018

The emergence of consumer-purchased monitoring devices in shared, intimate spaces presents new challenges to privacy and its protection. Web-enabled video cameras, which allow family members to monitor one another in the name of care, are among the most prevalent technologies in this vein. These cameras have recently gained traction for remote monitoring of vulnerable relatives in nursing homes, where they are intended to detect and deter abuse and neglect in residents’ rooms. But in so doing, they can create new privacy vulnerabilities—for residents (many of whom have dementia and lack capacity for consent), frontline care workers, roommates in shared rooms, and others. State policymakers are grappling with these issues as they craft laws governing electronic monitoring in these complex public/private spaces, in which they must balance among competing—and sometimes irreconcilable—privacy and security interests.

This paper presents a comparative analysis of six state regimes that regulate the use of monitoring systems in nursing home resident rooms. We find that states attempt to protect privacy through a variety of interlocking privacy constraints: social, technical, and institutional safeguards that restrict how monitoring devices can be introduced and operated. Further, we map key relationships within which stakeholders hold specific privacy interests vis-à-vis one another, and describe how legal regimes do (and do not) address such interests. We consider implications for how privacy is conceptualized and regulated in multi-relational social contexts, in which the privacy and security interests of certain stakeholders necessarily impact the privacy experiences of others.

via Regulating Privacy in Public/Private Space: The Case of Nursing Home Monitoring Laws by Karen Levy, Lauren Kilgour, Clara Berridge :: SSRN


Obstetric Violence

May 9, 2018

Maternity care in the United States is in a state of crisis, characterized by high cesarean rates, poor performance on various mortality and morbidity measures, and a steep price tag. There are many factors that impede access to high-quality, evidence-based maternity care for certain women. Grassroots organizers have raised awareness about the extent to which giving birth in the United States has become overly medicalized. Perhaps less widely known, however, is the extent to which women experience abuse, coercion, and disrespect while giving birth.

Inspired by activists in Latin America, advocates in the United States have begun to adopt the language of “obstetric violence” to describe and condemn such mistreatment. However, the existing research on obstetric violence is limited, which complicates the task of defining the problem and identifying solutions. To that end, this Article explores the profound mistreatment that some women experience during childbirth at the hands of their health care providers. It identifies various types of provider behavior that qualify as obstetric violence and paints a broad picture of how childbirth can be a damaging experience for some women, even when they leave the hospital with a healthy baby. Having developed a nuanced view of provider mistreatment and its implications, this Article then examines the current failure of law and regulation to provide meaningful prevention or recourse. It concludes by suggesting forms of advocacy within the legal and health care systems that offer promising approaches to shifting maternity care culture and, ultimately, to securing necessary changes in the tort system for women harmed by provider mistreatment during childbirth.

via Obstetric Violence by Elizabeth Kukura :: SSRN


Privacy Remedies

May 8, 2018

When consumers sue companies for privacy-intrusive practices they are often unsuccessful. Many cases fail in federal court at the motion to dismiss phase because the plaintiff has not shown the privacy infringement has caused her concrete harm. This is a symptom of a broader issue: the failure of courts and commentators to describe the relationship between privacy rights and privacy remedies.

This Article contends that restitution is the normal measure of privacy remedies. Restitution measures relief by economic gain to defendant. If a plaintiff can show the likely ability to recover in restitution, that should be sufficient to pass muster at the motion to dismiss phase even if the court is unconvinced that the plaintiff could show a case for compensatory damages flowing from harm.

This argument intervenes in the scholarly literature in two ways. First, it supports the realist perspective that remedies are constitutive of rights. The election of restitution as a remedy suggests that privacy should be conceptualized in tort as quasi-property, and that contract and/or restitution claims should be a standard part of privacy infringement pleadings. Second, it challenges the view that defining specific and stronger privacy rights at law would be sufficient to increase privacy protection. If any privacy rights are to exist at all, they must be linked to proportional, accessible remedies.

via Privacy Remedies by Lauren Henry Scholz :: SSRN


Regulating Privacy in Public/Private Space: The Case of Nursing Home Monitoring Laws

May 5, 2018

The emergence of consumer-purchased monitoring devices in shared, intimate spaces presents new challenges to privacy and its protection. Web-enabled video cameras, which allow family members to monitor one another in the name of care, are among the most prevalent technologies in this vein. These cameras have recently gained traction for remote monitoring of vulnerable relatives in nursing homes, where they are intended to detect and deter abuse and neglect in residents’ rooms. But in so doing, they can create new privacy vulnerabilities—for residents (many of whom have dementia and lack capacity for consent), frontline care workers, roommates in shared rooms, and others. State policymakers are grappling with these issues as they craft laws governing electronic monitoring in these complex public/private spaces, in which they must balance among competing—and sometimes irreconcilable—privacy and security interests.

This paper presents a comparative analysis of six state regimes that regulate the use of monitoring systems in nursing home resident rooms. We find that states attempt to protect privacy through a variety of interlocking privacy constraints: social, technical, and institutional safeguards that restrict how monitoring devices can be introduced and operated. Further, we map key relationships within which stakeholders hold specific privacy interests vis-à-vis one another, and describe how legal regimes do (and do not) address such interests. We consider implications for how privacy is conceptualized and regulated in multi-relational social contexts, in which the privacy and security interests of certain stakeholders necessarily impact the privacy experiences of others.

via Regulating Privacy in Public/Private Space: The Case of Nursing Home Monitoring Laws by Karen Levy, Lauren Kilgour, Clara Berridge :: SSRN


Competition in Health Care Markets: Treatment Volume and Quality

May 5, 2018

This paper introduces a workhorse model to analyze the effects of provider and insurer competition in health care markets. The two contracting imperfections we focus on are the following: (i) whether or not a patient should be treated and (ii) treatment quality are both not contractible. We derive conditions under which the market can implement first best quality and volume with the optimal competition intensities. First best competition intensity is strictly positive in both markets. If there is under-investment in quality, provider competition should be increased. Increasing insurer competition tends to increase treatment volume. If the planner cannot make the provider market competitive enough, it is optimal to increase insurer competition beyond its first best level thereby creating over-treatment.

via Competition in Health Care Markets: Treatment Volume and Quality by Jan Boone :: SSRN


Public Attitudes Toward Healthcare Fraud: Reasons to Commit Fraud and Common Schemes

December 18, 2017

Cases of health care fraud have been on the rise in recent years and are believed to continue to increase over time. Every year a significant amount of the federal healthcare budget is lost to fraudulent claims by providers and/or to government agencies involved with the enforcement of the healthcare laws and prosecution of offenders. This study investigates the reasons for committing fraud and finds that the primary contributing factors are the explosion in the size of health care spending and the ever expanding network of providers and subscribers of health care services causing wide access to the system.

While fraud is committed against both public and private health care agencies, the primary emphasis for prevention and reporting of fraud is on the public side (Rosenbaum et. al., 2009). The research investigates whether there are any differences in public attitudes towards fraud committed against the public agencies versus the private insurance companies. The study selects two equal samples and mails to each group a survey that includes similar questions pertaining to either Medicare/Medicaid or private insurance companies. The results show that both groups of participants view the fee-for-service payment system where doctors and other providers are tempted to perform or bill for unnecessary services as the most important reason for fraud. In addition, both groups rated double billing and incorrect reporting of diagnosis or procedures as the top two schemes committed against health care agencies.

via Public Attitudes Toward Healthcare Fraud: Reasons to Commit Fraud and Common Schemes by Nasrollah Ahadiat :: SSRN


Subsidizing Altruism in Living Organ Donation

December 18, 2017

The current supply of deceased donor organs is insufficient to meet the growing demand for transplantable organs. Consequently, candidates for kidney transplantation are encouraged to find a living donor. In 2008, the Department of Health and Human Services began to reimburse donors’ travel‐related expenses via the National Living Donor Assistance Center (NLDAC). Using variation in transplant centers’ applications for donor assistance, we use a difference‐in‐difference model to estimate the relationship between the NLDAC and living donor kidney transplants. We find that among participating transplant centers, the program increased the number of living donor kidney transplants by approximately 14%.

via Subsidizing Altruism in Living Organ Donation by Kurt Schnier, Robert M. Merion, Nicole Turgeon, David H. Howard :: SSRN