The severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), the virus that causes coronavirus disease 2019 (COVID-19), raises important and vexing privacy and security issues. Public health officials, law and policy makers, and members of the general public disagree, for example, regarding the amount and type of individually identifiable health data that should be collected, used, and disclosed for public health surveillance, public health investigation, and public health intervention. Stakeholders also diverge in their opinions regarding the sufficiency of federal and state data privacy and security laws. Some stakeholders believe that current statutes and regulations are sufficient to protect individually identifiable COVID-19 data whereas others contend that new privacy and security laws are needed. At a more basic level, stakeholders also vary in their understanding of the application of the HIPAA Privacy, Security, and Breach Notification Rules (HIPAA Rules) to particular uses and disclosures of COVID-19 data. This Article responds to the varying levels of public understanding of HIPAA by: (1) summarizing the HIPAA Rules and assessing the many waivers, notices of enforcement discretion, guidance documents, bulletins, frequently asked questions, and webinars (collectively Guidance) released by the federal Department of Health and Human Services (HHS) during the COVID-19 pandemic; (2) identifying and answering additional HIPAA Rules questions not addressed, or not sufficiently addressed, by the HHS Guidance; and (3) proposing amendments to HHS’s process for releasing guidance that are designed to improve the public’s understanding of the proper use and disclosure of infectious disease data during public health emergencies.
Category: Issue 3
Recent Supreme Court decisions, such as Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) and June Medical Services, LLC v. Russo, 140 S. Ct. 2103 (2020), and the COVID-19 pandemic have brough to light deep racial inequities in healthcare, especially as it relates to reproductive rights. However, court action alone will not be sufficient to achieve reproductive justice. The reproductive justice framework focuses on three tenets: (1) the right not to have a child, (2) the right to have a child, and (3) the right to parent one’s child safely. Viewing COVID-19 through a reproductive justice lense reveals how facially natural laws and policies, relating to these tenants, disproportionately harm women of color. However, courts are unwilling and, in some cases, unable to address the populations most harmed by their decisions. Instead, legislative action and meaningful participation by communities of color to develop a comprehensive health justice system is needed to address and support reproductive justice. The pandemic has exacerbated many of these reproductive justice issues. This Article surveys some of the most salient issues.
Determinants of health are the range of personal, social, economic, and environmental factors that influence health status. These factors vary widely and can include systems, strategies, and institutions that arise from the historical, political, and social contexts that place groups of people into socioeconomic categories and positions of power. Determinants of health can also be more specific, such as the environments in which people are born, live, learn, work, play, worship, and age that affect a wide range of health, functioning, and quality-of-life outcomes and risks. There is a growing recognition of the law as a determinant of health, as law establishes the power of the state to regulate individual and group behavior, allocates funds to public expenditures that affect health, and articulates norms that express our society’s values and highest ideals, including how we prioritize public health. This Article argues that the determinants of health are largely responsible for inequalities in our health systems because many of the factors are not within an individual’s control. For example, whether an individual has access to mental health coverage depends largely on federal funding and programs, not on any factor within the individual’s control. Further, zoning laws can influence equality in housing, access to education, and even exacerbate social exclusion, which have all been proven to affect health outcomes. As a result, this Article proposes that understanding the law’s role as a determinant of health is the first step in bridging the gap and achieving health equity.
Professional graduate programs occupy a niche space in the ongoing national debates over student speech and the First Amendment. The U.S. Supreme Court has not spoken on the level of speech protections afforded to professional students. When a professional student brings a free-speech claim, lower courts are therefore tasked with developing tests and standards. As a result, there is no unified jurisprudence guiding courts on how to evaluate First Amendment claims at the professional or graduate-school level. This Article first explores the various doctrines employed by courts to analyze claims brought by professional students, including those developed from Supreme Court cases on student speech and public employee speech. These approaches, while helpful, are incomplete to address the unique interests and concerns raised by professional schools and their students. In developing a potential solution, this Article identifies key themes and similarities in approaches taken by three courts in professional speech cases: Tatro, Oyama, and Keefe. This Article then draws from fellow commentators’ approaches and the commonalities among professional student-speech cases to suggest a consistent framework for courts analyzing these claims. First, the court evaluates the proximity of the speech to the school environment to identify whether there is a professional nexus between the speech and documented professional standards of the relevant industry. Next, both the school’s conduct code and disciplinary actions must be narrowly tailored and directly related to legitimate, documented industry professionalism standards. Finally, the court must verify that the school exercised reasonable professional judgment in its discipline of the student. Ultimately, this Article both acknowledges the challenges and harmonizes the common themes among cases where professional schools, students, and courts confront First Amendment free-speech claims.
Healthcare in America is under constant debate, with many calling for changes and mass reform. An area seldom discussed to the degree necessary is the insulin pricing crisis, with one-in-four insulin dependent diabetics reporting that they must ration their insulin doses due to cost. Congress has failed to seriously address the exploitive pricing that occurs for the sale of insulin. Certain states have begun to address this issue on their own but without action from Congress and more unified solutions, the price gouging of insulin will continue. While there may not be a definitive answer to the insulin pricing issue, proper action can undoubtedly result in changes that relieve the financial burden on our nation’s diabetic population. This Article stands to show that the rising costs of insulin is a national crisis. The main issue being the lack of regulatory and legislative attention on the pricing of insulin. This Article addresses the issue by proposing a multifaceted approach, first exploring the historical context surrounding the insulin pricing crisis and how the situation has become so dire. By showing the historical background of insulin pricing, one can see the extent to which pricing has climbed, reaching the point we see today. Following the historical exploration, this Article addresses the current landscape of initiatives in place to address the insulin pricing crisis: legislation and policy, litigation, and patient savings programs. Subsequently, these current policies and practices are critiqued, evaluating their effectiveness and adequacy for addressing the insulin pricing issue. Finally, a more ideal solution to the insulin pricing crisis is presented. Ultimately, this Article seeks to brings to light the crisis facing our nation from the rising prices of insulin.