November 1, 2022
The Center for Health & Pharmaceutical Law’s dynamic and highly-regarded faculty research, write and present on the leading health law issues including technology addiction, leadership during crisis, medical misinformation, cost-effective analysis in medication coverage, impact of COVID on undocumented individuals, the legal treatment of the use of Pre-exposure prophylaxis, disability law, third-party accommodations, conflicts of interested in doctor-patient relationships, illegal activities and criminality of pharmaceutical and medical device companies, violation of federal Medicare and Medicaid rules with overlapping surgeries, DOJ’s FCA resolutions and enforcements, community health workers, and improving healthcare access to vulnerable populations to list a few. Their recent accomplishments follow.
Professor Gaia Bernstein
Professor Bernstein’s upcoming book, Unwired: Gaining Control Over Addictive Technologies (forthcoming, March 2023, Cambridge University Press) shatters the illusion that we autonomously choose how to spend our time online. It shifts moral responsibility and accountability for solutions to corporations and draws on lessons from the tobacco and food industries demonstrating why government regulation is necessary. Publisher's Weekly's early review of the book stated that: “Bernstein skewers the tech industry… in her damning debut... This trenchant clarion call rings loud and clear."
Professor Bernstein's article: A Window of Opportunity to Regulate Addictive Technologies is forthcoming in the Wisconsin Law Review Forward (2022). The Article aims to answer why regulators did not intervene for years to protect users, especially children, from the harms of excessive screen time. It does so by developing law and technology theory to examine what influences the creation and breadth of windows of opportunity to regulate new technologies.
Professor Bernstein delivered several presentations about the harms of excessive screen time, the ineffectiveness of self-help measures, and the options for technology re-design through legal action, including: Manipulating Time at the Technologies of Deception Conference, Plenary Presentation, Information Society Project, Yale Law School, March 2022; Unwired: Gaining Control over Addictive Technologies, at the IPSC, Stanford Law School, August 2022; Unwired: Gaining Control over Addictive Technologies at Governance of Emerging Technologies Conference, Arizona State University School of Law, May 2022; A Window of Opportunity to Regulate Technology Overuse at the Legal Institutions and Technological Change Symposium, Wisconsin University School of Law, April 2022; Antitrust and the Manipulation of Time at the Big Tech and Antitrust Conference, Institute for Privacy Protection and Gibbons Institute for Law, Science and Technology, Seton Hall Law School, February 2022; and The Over-Users: Technology Addiction and the Illusion of Control, New York Area Family Law Scholars Workshop, Cardozo Law School, January 2022.
Dean Kathleen Boozang
Dean Boozang, founder of the Center for Health & Pharmaceutical Law, has delivered the following presentations: Health Law and Leadership During Times of Crisis, 2022 AAL Annual Meeting (2022); The Life Cycle of a Medical Staff Peer Review Fair Hearing Process, New Jersey State Bar Association, Health Law Section (March 2022); Women in Charge, New Jersey State Bar Annual Meeting (May 2022); and Mini Summit 1: Basic Training: Basic Elements of the Compliance Field and Profession, International Pharmaceutical Compliance Forum (May 2022).
Professor Carl Coleman
Professor Coleman’s article, Physicians Who Disseminate Medical Misinformation: Testing the Constitutional Limits on Professional Disciplinary Action, 20 First Amendment Law Rev. 113 (2022), responds to calls for revoking the licenses of physicians who disseminate misinformation about medical matters. He argues that, in most cases, imposing disciplinary penalties on physicians for speech that takes place outside the physician-patient relationship would have dangerous policy implications and would almost certainly be unconstitutional. At the same time, he identifies limited circumstances in which disciplinary actions might be appropriate. Professor Coleman further explored these issues in License Revocation as a Response to Physician Misinformation: Proceed with Caution, Health Affairs Forefront (2022).
Professor Coleman’s article, Cost Effectiveness Comes to America: The Promise and Pitfalls of Cost-Effectiveness Analysis in Medication Coverage Decisions, 38 Georgia State University Law Review 811 (2022), critically explores the use of cost-effective analysis (CEA) in medication coverage decisions, identifies ethical shortcomings in current approaches, and recommends strategies for reforming CEA to retain its benefits while minimizing its negative effects.
Written with colleagues in philosophy, biology, and Latinx studies, Professor Coleman’s article, Vulnerability and Detention in the Time of COVID: An American Failure, Revue Confluence: Sciences & Humanités (forthcoming 2022) (with Bryan Pilkington, Ana Campoverde, and Daniel Nichols) examines how COVID has exacerbated already existing inequalities, with a particular focus on undocumented persons in the United States.
Professor Coleman delivered several presentations on physician dissemination of misinformation, including Does Free Speech Protect COVID-19 Related Misinformation and Disinformation, at the Federation of State Medical Boards’ Board Attorneys Workshop, San Diego (November 2022); Fact or Fiction: Strategies for the Misinformation Age, at the American Board of Internal Medicine Annual Meeting, Colorado Springs (August 2022); Physician Dissemination of Medical Information: Constitutional Limits on State Disciplinary Board Actions, at the Health Law Professors Conference, American Society of Law, Medicine & Ethics, Phoenix (June 2022) and the Federation of State Medical Boards Annual Meeting (virtual), April 2022. In March 2022, he was quoted in COVID-19 Misinformation Tests Doctors’ Free Speech Rights in Bloomberg Law.
Professor Coleman participated in two World Health Organization missions to assist countries in assessing and improving the quality of their research ethics oversight systems, once in Lagos, Nigeria (October 2022) and another in Nagarkot, Nepal (November 2022).
Professor Doron Dorfman
Professor Dorfman’s recent work examined the legal treatment of Pre-exposure prophylaxis, PrEP: a novel drug treatment shown to be highly effective in preventing HIV infection. His work has become extremely timely in light of the recent Texas district court decision Braidwood Management Inc. v. Becerra from September 2022. In Braidwood Management, the Texas court found that the Affordable Care Act’s (ACA) Section 2713 that mandates insurers to cover PrEP as a preventive measure violates employers’ religious beliefs under the Religious Freedom Restoration Act. This is because using the drug “facilitate[s] and encourage[s] homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.” This decision does not only endanger the ACA’s constitutionality, but also demonstrate how bias and stigma and PrEP users penetrate legal decision making.
Professor Dorfman has empirically shown the stigmatizing effects of PrEP use in his latest published article, The PrEP Penalty, 63 B.C. L. Rev. 813 (2022). Dorfman uses an innovative experimental study to demonstrate counterintuitive and illogical responses to gay men’s’ use of PrEP. He finds that participants were more reluctant to accept blood from a potential gay donor who takes PrEP, or to change the policy to allow him to donate, compared with a gay donor who is not taking PrEP. This PrEP penalty applied only to gay donors: participants were more inclined to accept a blood donation from a straight donor on PrEP.
In his upcoming article, Penalizing Prevention, 108 Cornell. L. Rev. (forthcoming 2023), Dorfman examines the stigmatizing effects of using preventive health measures in other contexts in addition to PrEP, including mental health treatment and the public use of the opioid blocker Naloxone. Dorfman studies what he calls the paradoxical legal treatment of preventive medicine. How preventive medicine is endorsed and encouraged by legislation on the one hand yet penalized on the other. Using preventive medicine, her argues sends strong signals about the possible risks associated with the users’ behavior and character. This signaling effect intersects with existing stigma and pervades law and policy, as the Braidwood Management demonstrates, creating disincentives to use preventive medicine.
Professor Dorfman’s other strand of scholarship is in disability law. In Disability as Metaphor in American Law, 170 U. Pa. L. Review (forthcoming 2022), Professor Dorfman identifies the use of disability as metaphor in two legal contexts. The first is the linguistic use of disability as metaphor for disadvantage, inability, and impediment generally. The second context is what he refers to as a “disability frame advocacy” --- when scholars and advocates use disability rights framework, and disability as metaphor for other oppressed identities, to advocate for resources, recognition, and redress, for groups outside of people with impairments (like Black, trans, poor, and homeless people, students who experienced inflicted trauma, and others).
Professor Dorfman has also written the following two chapters: An Experimental Jurisprudence Approach to Health Law & Disability Law, in Cambridge Handbook of Experimental Jurisprudence, Cambridge University Press (Kevin Tobia, ed) (forthcoming 2023) and Commentary on Olmstead v. L.C. ex rel. Zimring, in Feminist Judgements: Rewritten Health Law Opinions, Cambridge University Press (Seema Mohapatra & Lindsey F. Wiley, eds) (forthcoming 2023). He was recently invited to contribute a book chapter to a new book titled Regulating the Body edited by renowned Law & Society scholar Austin Seret and Susanna Lee.
In addition, Professor Dorfman offered commentary on A Conversation About Law & Political Economy and Disability, Part 1 & 2, LPE Blog (2022) (alongside other leading figures in the field of disability law: R. Belt, J. Harris, J. Morgan & K. Tani). Dorfman is a regular contributor to the Bill of Health Blog hosted by Harvard Law’s Petrie-Flom Center. His recent contributions include the blog post: NFIB v. OSHA and Its Contradiction with the GOP’s Disability Employment Agenda and The Institutionalization Missing Data Problem.
In September, Professor Dorfman was interviewed by the Dallas Morning News on the Braidwood Management case and the regulation of PrEP. He also discussed a new Fourth Circuit case revolving around the rights of an incarcerated transwoman, which recognized gender dysphoria as a disability under the Americans with Disability Act in the 19th news.org, an independent, non-profit newsroom reporting on gender, politics and policy. In August, Professor Dorfman was invited by the US Army Public Health Center to present on disability rights and their intersection with public health.
Most recently, Professor Dorfman workshopped his newest work-in-progress Third-Party Accommodations at the Annual Colloquium on Scholarship in Employment Law and Labor Law at Vanderbilt Law School in October 2022.
Professor Jacob Elberg
In Transparency and the Doctor-Patient Relationship – Rethinking Conflict-of-Interest Disclosures, New England Journal of Medicine (with Adashi, E.Y. and Cohen, I.G.) (2022), Professor Elberg examines the need for physicians to disclose to patients any financial relationships that they may have with manufacturers in order to reduce improper financial relationships between manufacturers and physicians which may harm patients and endanger the trust relationship between physicians and patients. Professor Elberg examines the reasons why pharmaceutical and medical device executives have rarely been held criminally responsible for the illegal activities of their companies in Accountability of Health Care Executives for Illegal Activities of Pharmaceutical and Medical Device Companies, JAMA Intern Med (2022). Professor Elberg’s most recent article, Overlapping Surgery – In DeBakey’s Shadow, JAMA Surgery (2022) (with Adashi, E.Y. and Brown, E.C.), Professor Elberg examines the federal whistleblower lawsuit against the Massachusetts General Hospital (MGH) in which hospital surgeons engaged in overlapping surgeries in violation of federal Medicare and Medicaid rules and revisits the notion of overlapping surgeries. The third article in Professor Elberg’s series on the FCA, Neither Carrots nor Sticks: DOJ’s Unfulfilled Commitment to Corporate Health Care Compliance, 2022 Wisconsin Law Review 691 (2022) examines the Department of Justice’s (DOJ) civil False Claims Act (FCA) resolutions vis-à-vis the DOJ’s stated policies as well as actual outcomes through a review of a data set of resolved cases against health care entities.
Professor Elberg presented A New Path to the Sunshine: Reconsidering Physicians’ Financial Conflicts as part of Case Western Reserve’s Zaremski Lecture Series on October 18, 2022. Professor Elberg presented Litigating Class Actions vs. Criminal Liability for the Opioid Crisis – How do we move forward? at the University of Texas Law School Texas Review of Litigation Symposium on March 26, 2022. He also delivered Balancing Telehealth Availability with Fraud and Abuse Concerns at the Kansas Journal of Law & Public Policy Symposium, Post-Pandemic Privacy – Health, Data & Dignity, on February 11, 2022.
On February 9, 2022, Professor Elberg appeared in Law360 discussing the New FCA Stats Fuel Debate Over Health Enforcement Fixation. He also discussed The Elizabeth Holmes Verdict and the Legal Loophole for ‘Disruption’ in Wired in January 2022.
Professor Rachel Gerson
Professor Gerson began teaching the Health Justice Clinic in January 2022. On September 15, 2022, Professor Gerson spoke at a conference for New York State’s Enhanced Multidisciplinary Team Initiative, which are county-based teams that bring together various disciplines to intervene in cases of older adult abuse, including financial exploitation and neglect by others. Professor Gerson spoke about neglect by court-appointed guardians, the impact of neglect by guardians on affordable and stable housing, and the procedures available to address neglect by guardians.
Professor John Jacobi
John V. Jacobi is a member of the NJ Supreme Court Mental Health Advisory Committee working on alternative disposition issues. He serves as Chair of the Board of Directors of both the Greater Newark Health Care Coalition and North Jersey Community Research Initiative. He is partnering with the NJ Department of Health on a grant for Community Health Workers advancing CHW work in community care.
In June, Professor Jacobi presented Community Health Workers and Health Equity at the American Society of Law, Medicine, and Ethics Health Law Professors’ Conference in Phoenix, Arizona. On October 21, he presented Community Health Workers and the Dilemma of Integrated Care at the University of Houston Law School’s Symposium Workshop, States as Health Policy Laboratories. The paper will be published in a symposium issue of the Houston Journal of Health Law and Policy. On October 25, Professor Jacobi was a panelist in a program at New York University Law School on HIV Discrimination – Past and Present.
Professor Jacobi serves as Principal Investigator on several ongoing grant-funded projects involving the sustainability and legal status of community health worker practice; public and private funding for dyadic behavioral health services for infants and parents; establishing equitable practices for telehealth; and transition services for young adults with intellectual and developmental disabilities moving to adult services.
Professor Tara Adams Ragone
Professor Ragone continues to focus her policy work on improving access to meaningful, evidence-based, whole-person health care for vulnerable populations. As co-chair along with Professor Jacobi of the Sustainability Workgroup of the New Jersey Department of Health's Colette Lamothe-Galette Community Health Worker Institute, she works closely with state entities and other partners to develop innovative regulatory and financing proposals to support the training and deployment of CHWs as critical members of care delivery teams for vulnerable populations. She also is working to build sustainability for preventive pediatric behavioral health models that offer an evidence-based means of addressing the increasingly alarming pediatric behavioral health crisis.
This policy work dovetails with Professor Ragone’s expertise in mental health parity law, which she explored when she presented Coverage of Preventive Behavioral Health as a Means of Addressing Social Determinants of Health and Furthering Parity at the 45th Annual ASLME Health Law Professors Conference on June 2, 2022 in Phoenix, Arizona. She further developed the intersection of preventive behavioral health, health equity, and parity law in her keynote address Mental Health Parity: Exploring the Promising Potential of This Seemingly Intuitive But Exasperating to Implement Law at the Indiana Health Law Review Symposium, Mental Health and the Law, on October 21, 2022 at the Indiana University Robert H. McKinney School of Law in Indianapolis, Indiana. Professor Ragone focused on health equity when she delivered the keynote address at the 5th Annual Hidden Figures Gala of the Williams Forum for Diabetic Education & Healthcare, which honored Extraordinary Women in Medicine and Science including Professor Ragone with the Community Service Award on November 12, 2022 in West Orange, New Jersey.
