Category: Blog

Tracing the History of Forced Sterilization within the United States

When many people hear the phrase “forced sterilization,” they rarely associate the practice with the United States, or if they do, they believe this was something the country did more than a century ago. Unfortunately, however, coerced and forced sterilizations have been occurring since the early 1900s and have seen their most recent iterations as “voluntary” procedures offered for a reduced prison sentence. Coerced sterilization occurs when financial or social incentives or intimidation tactics are employed to compel an individual to undergo the procedure. In comparison, forced sterilization happens when a person does not know she is undergoing the procedure, has no opportunity to provide consent, or gives consent under duress.

In 1907, Indiana
became the first state to successfully pass a mandatory forced sterilization
law, and California and Washington followed suit a few years later. Throughout
the first half of the twentieth century, the public generally supported
sterilization of the mentally handicapped. In 1927, the Supreme Court ruled in Buck v. Bell that forced sterilization
did not violate the Constitution. In his opinion in Buck, Justice Holmes explicitly argued for eugenics, which Nazi propaganda
then cited the opinion as a basis for Germany’s forced sterilization programs.

Public sentiment surrounding sterilization began to shift following the 1940s, but the trend changed when the Nixon administration dramatically increased Medicaid-funded sterilization of low-income Americans, specifically targeting people of color and those with HIV/AIDS. This funding, combined with a federal commitment to family planning and community health, led to widespread sterilization abuse in the United States from the late 1960s to the mid-1970s. For example, the North Carolina Eugenics Board sterilized 7,600 mentally handicapped women between the 1940s and 1970s. The increase of reproductive health clinics at this time overwhelmingly benefited middle-class white women, but minority working-class women faced stigma and a family planning model that lacked standardized consent protocols, which created an environment “ripe for coercion.”

The story of the Relf sisters, who were teenagers sterilized without consent in 1973 in Alabama, mobilized many women to address forced sterilization. As the case went to trial, it was found that the girls’ mother believed she was consenting to birth control for her daughters, but because she could not read, she mistakenly signed a sterilization release. In reaction to this story, African American and Native American women throughout the United States came forth with similar allegations, and, in Relf v. Weinberger, a federal district court judge estimated that 100,000 to 150,000 low-income women had been sterilized during the early seventies. The call to action grew as awareness of the practice increased, and health departments in major cities began revising their guidelines for sterilizations, which included reviewing the consent notice and fully informing patients of the permanence of the procedure. Some jurisdictions, like North Carolina, even established governmental entities to identify victims of forced sterilization and compensate them.

Despite this, forced sterilization still occurs today, although it is reframed as a voluntary option in exchange for a reduced prison sentence. In May 2017, a Tennessee judge signed a standing order allowing inmates in White County to receive jail credit if they underwent either a vasectomy for males or a Nexplanon implant for females. Thirty-two women and thirty-eight men underwent sterilization during the three months Judge Benningfield’s order was in effect. Though Tennessee later introduced a bill that would forbid judges from approving a reduced sentence if it is conditioned upon sterilization, other states are not responding with similar legislation. In February 2018, an Oklahoma woman, who was a prior drug addict, received a shorter sentence for a federal counterfeiting offense after undergoing surgery to prevent further pregnancies. The sentencing judge, Stephen Friot, defended his decision, saying that the Supreme Court “has yet to recognize a constitutional right to bring crack- or methamphetamine-addicted babies into this world.” Actions and sentiments like Judge Friot’s demonstrate how eugenics practices in the United States have evolved and continue to violate an individual’s bodily autonomy and human rights on the whole.

Granite State Residents File Suit Over Medicaid Work Requirements

Medicaid is a federal and state government health insurance program for persons of all ages whose income and resources are insufficient to pay for health care. States currently enjoy significant leeway in determining who is eligible for implementation of the program. In recent years, a number of states have received permission from the Centers for Medicare and Medicaid Services to make a beneficiary’s receipt of Medicaid benefits contingent upon fulfilling work requirements.

New Hampshire is one of nine states to approve such Medicaid work requirements. Among other provisions, the program will require all ACA expansion beneficiaries to participate in 100 hours per month of “community engagement activities, such as employment, education, job skills training or community service as a condition of Medicaid eligibility.” While the New Hampshire Governor Chris Sununu praised the decision as empowering recipients, many critics agree that there is no nexus between work requirements and improved health and that thousands of vulnerable citizens will lose coverage for failure to comply. In fact, roughly 18,000 citizens of Arkansas lost Medicaid coverage in the last year for failing to comply with their state’s Medicaid work requirements.

This week, residents of the Granite State became the third to challenge their state’s Medicaid work requirements in court. Petitioners suing the federal government to halt the work requirement are encouraged by a similar Kentucky law which was struck down in a U.S. District Court last year. The chief concern among those bringing the suit is that the massive coverage loss experienced by people in Arkansas will be replicated in New Hampshire. The New Hampshire state Department of Health and Human Services estimated that “up to 15,000 of the roughly 50,000-person Medicaid expansion population in the state are not working or presently exempted.” Not factored into those numbers, argue opponents of the law, are beneficiaries who juggle multiple low-wage service industry jobs with unpredictable, fluctuating hours.

The New Hampshire case against the federal government will be before U.S. District Judge James Boasberg who blocked the Kentucky law last year and who has new and similar cases on his docket from Kentucky and Arkansas. New Hampshire has hinted at the prospect of intervening in this law suit to further argue that the work requirement is beneficial to the health of state Medicaid recipients. Judge Boasberg, however, previously stated that “This is not the purpose of Medicaid,” and that the goal of the law is to provide medical and long-term care service coverage. The results of this case will have a resounding effect on similar efforts in other states to make Medicaid coverage contingent on work requirements.

Domino’s Pizza May Deliver the Supreme Court a Chance to Modernize the ADA

The Supreme Court of the United States could soon provide
greater clarity to the Americans with Disabilities Act’s (ADA) jurisdiction
over websites and mobile apps.

Domino’s Pizza is reportedly preparing a petition for certiorari to appeal a Ninth Circuit decision, Robles v. Domino’s (913 F.3d 898), which held that blind plaintiff, Guillermo Robles, could proceed with a lawsuit against Domino’s after alleging the pizza purveyor’s website and mobile app were inaccessible to him using screen-reading software. On appeal, the Ninth Circuit reversed the decision of the district court and held that the ADA applies to the website and mobile application as services of a place of public accommodation. If the Supreme Court accepts Domino’s “cert petition” for Robles, the Court would have the opportunity to rule on the issue of whether websites and mobile apps must comply with ADA standards.

The ADA was passed in 1990 under
President George H.W. Bush as the “world’s first comprehensive declaration of
equality for people with disabilities.” Since
then, the ADA has been further refined and empowered by a mix of
legislation and landmark Supreme Court cases.
The ADA, at its core, is a law
that “prohibits discrimination against individuals with disabilities in all
areas of public life, including jobs, schools, transportation, and all public
and private places that are open to the general public.”

Although the ADA’s jurisdiction over those places listed
above is clear, its claim over the internet has been tenable at best. The ADA still
does not address digital or online compliance specifically, even as our
lives become increasingly digitized. The current state of the law regarding
online compliance to ADA standards is made up of a patchwork of federal appellate
court decisions, which often have different
or contradicting standards. This legal uncertainty was highlighted in
2018, in which over 2,250 website accessibility lawsuits were filed in the
U.S., increasing from 814 the year before. Still, the Supreme
Court has yet to take up one of these cases to provide clarity in the law
and relief to lower courts. A ruling by the Court on a website accessibility
case could replace the appellate patchwork of case law with a single federal
standard.

In Robles, the district court granted Domino’s summary judgment motion and dismissed the case holding that “imposing […] standards on Domino’s without specifying a particular level of success criteria and without the Department of Justice (DOJ) offering meaningful guidance on this topic … fl[ew] in the face of due process.”

The case was then appealed to the Ninth Circuit, which
reversed the district court’s dismissal, holding
that the ADA applied to websites and mobile apps for operators of places of
public accommodation. This holding reaffirmed the standard “that, to be covered
by the ADA, a website or mobile app must have a
nexus to a physical place of public accommodation.” The court expounded
upon this noting that the ADA applies to services “of a place of public accommodation,” not “in a place of public accommodation.” The distinction by the court broadens
the applicability of the ADA from beyond the physical space to websites and
mobile apps.

The Ninth Circuit stated
there was such a nexus, as the “alleged inaccessibility of Domino’s website and
app impedes access to the goods and services of its physical pizza franchises –
which are places of public accommodation.” Additionally, the Ninth Circuit held
that due process did not require DOJ to issue specific guidelines as Domino’s had
been on notice “since
1996 of DOJ’s position that its website and app must provide effective
communication.”

After the decision by the Ninth Circuit, Domino’s requested
a sixty-day extension to file a petition of certiorari with the Supreme Court,
which was subsequently granted
by Justice Kagan; the petition must now be filed by June 14, 2019. In the
request, Domino’s
states, “[t]he Ninth Circuit’s decision in this case presents important and
complex issues concerning the scope of the ADA, the resolution of which will
have a significant impact on all businesses and institutions seeking to
maintain an online presence.”

The stage is set for an overdue landmark determination of
the extent of ADA’s jurisdiction over websites and mobile applications if a
“cert petition” is filed and granted. A decision
by the Supreme Court, in this case, could have immediate and far-reaching
implications for both businesses and individuals covered under the ADA. Thus, lawyers,
industry leaders, and ADA-covered individuals are closely watching
this case as it develops.

“Alexa, Reinvent the Healthcare System.” 

Amazon’s move to the health care space has the potential to revolutionize the industry.

Beginning in January, 2018, Amazon has been moving towards its latest business venture: healthcare. While a shift to health care may be unusual for Amazon, the change recognizes the fact that health care is an intricate and complex business that a disrupter like Amazon could greatly influence. Healthcare is one of the biggest industries in the U.S., but also one of the most inefficient. Approximately one third of health care spending is unnecessary and is usually wasted. A number of companies have attempted to reduce some of this waste, most notably with the partnership between Amazon, Berkshire Hathaway and JPMorgan Chase. These three businesses have a combined 1.2 million employees and the hope is their partnership will allow them to bring costs down in their own health care plans. This announcement has already had an impact on the healthcare community and drawn notice from other stakeholders in health care. 

According to the alliance, this business venture will not be aimed towards making a profit, but instead will focus on reducing the costs of the healthcare system and making the system easier to navigate. Dr. Atul Gawande, a physician and advocate for health care reform, has been chosen to lead this new venture. While details about the venture are not yet known, Dr. Gawande’s past comments have hinted that he will concentrate on three main issues: improving health benefits, boosting primary care and lowering pharmacy costs. 

The venture has also examined additional ways to lower health care costs, such as purchasing the pharmacy startup, Pillpack and investing in better software to compile medical records.Some see this as a move to make an online pharmacy platform that would allow patients to simplify obtaining prescriptions, moving the entire process to a personal, computerized system. Amazon may be able to capitalize on this new market through their existing success in online retail services. Amazon already provides medical supplies to hospital systems and they may be able to further expand within this market through sales of prescription drugs. Additionally, Amazon may also be able to integrate their Alexa home assistant technology into an integrated health program. Recent projects have used Alexa to monitor personal health, provide first aid response and report medical data. Increased utilization of Alexa-related services would allow for greater integration of Amazon products within the health care industry and may create additional ways to bring down costs. 

Amazon’s move to the health care space has the potential to revolutionize the industry, as they may create a more efficient system that other large businesses may choose to adopt. The increased uncertainty for medical practitioners will likely lead to a number of legal questions, such as issues of data privacy and monopolistic behavior. There will likely be some government regulation of these new businesses and it will be essential to keep up-to-date with legal changes to allow businesses to stay in compliance as well as participate in these new ventures.

An Attorney’s Duty to Concussed Athletes

In November 2018, the National Hockey League (NHL) joined the National Football League (NFL) to attempt to resolve their concussion litigation. The NHL agreed to a settlement with approximately 300 former hockey players, who had unsuccessfully attempted to certify their lawsuit as a class action. NHL Players alleged negligence for how the NHL dealt with head injuries, and claimed that the league concealed the long-term risks of head injuries and concussions. In the NFL, reports have shown an increasing number of retired NFL players who have suffered concussions and developed memory and cognitive issues, including chronic traumatic encephalopathy (CTE). To date, researchers have diagnosed CTE in 110 of 111 former NFL players. At the college level, there is a growing list of legal claims against the National Collegiate Athletic Association for failing to protect athletes from the risks associated with head injuries. For sports law and health law attorneys, concussion litigation is an important issue, particularly as it relates to CTE and second-impact syndrome (SIS).   

Contact sport athletes and military veterans, populations that have a history of repetitive hits to the head have the highest risk of CTE. CTE can only be identified during a postmortem autopsy, but symptoms can be present years before death. SIS occurs when an individual receives a second head injury before recovering from the first, and often leads to permanent disability or sometimes death. Attorneys can play a large role in preventing or helping athletes decrease their risk of concussions. There are several significant federal lawsuits, including at American University, and many state lawsuits that are deciding landmark legal issues. One such case is Schmitz v. NCAA, where the Ohio Supreme Court held that the “discovery rule” allows former athletes to file suit based on traumatic brain injury symptoms that do not manifest until decades after the alleged head trauma occurred. The increase in lawsuits, even when they end in settlement, may lead more athletes to seek compensation and hopefully to minimize the risk of brain injury in sports.

Concussions will continue to be
a litigated issue, both at the collegiate and the professional levels. As
lawyers, what
is our duty to these concussed athletes? And what is the standard of
care due to athletes who suffer concussions? Most importantly, litigators need
to become familiar with the symptoms of concussions, which can include physical,
cognitive, and behavioral changes. Litigators also need to
understand the athlete’s pre- and post-concussion cognitive abilities, along
with understanding the severity and short- and long-term effects of a
concussion. Pre-season
neurological testing and prior medical history are probably the best
tools to determine an athlete’s pre-concussion cognitive abilities. Baseline
testing is useful to compare abilities, since it is not meant to be a
comprehensive assessment, which can provide an objective baseline measure of
the effects of a concussion. Prior medical records also reveal past concussions
and anything that may affect an athlete’s abilities, including mental health. During
the concussion, litigators can interview
witnesses to the concussion and obtain medical records regarding the
diagnosis after the concussion. Then, litigators can begin to investigate the
diagnosis, and determine whether the athlete meets any of the symptoms of a
concussion.

Litigating claims on behalf of
concussed athletes is difficult, but the advances of medicine and awareness of
symptoms may lead to changes in the law. Going forward, one of the benefits of
concussion litigation is that it will likely change how contact sports are played,
from youth to professional sports. Litigators who want to protect athletes,
along with coaches, should begin to discuss protecting athletes at a young age,
even
if it removes some of the drama of athletics. Many athletes have
lost their lives and lifestyles from CTE and SIS, and we can ensure better
protections for budding athletes. 

Private Equity Investment in Healthcare

“Ten
years ago, only a few private equity firms had dedicated healthcare components,
but today, nearly
everyone does” says Dmity Podpolny of McKinsey & Company, one of
the largest consulting firms in the world. Private equity and medicine are now
on the rise. For years, private equity firms have invested in healthcare.
However now, the rapidity is significant private equity firms increase
their presence in a compartmentalized healthcare industry, grasping on alliance
opportunities to obtain a better business model. PwC
Health Research Institute explains that “private
equity’s acquisitions and investments in the health sector have become
increasingly diversified and frequent; they include such things as new entrants
in technology and convenient care delivery, contract research organizations,
and ophthalmology and dermatology practices”.

Last year, private equity continued
to move into new medical specialties, according to a 2018 report. The report outlined three major points
to consider. The
third quarter of 2018 saw roughly $30.4 billion in deal volume, rising 8
percent year-over-year. Private equity will likely continue to push into the
health sector, specifically in medical specialty practices.
Researchers estimate that industry players have roughly one million dollars to
invest in certain businesses. The urgent care realm for example, has grown by 5.8%
in 2018. PwC
notes that due to the high quantities of these deals involving private equity,
other firms may make the decision to sell themselves to these private equity
groups to better improve their business model.

Moving forward, this means several
things. PwC
expects this trend to accelerate even more in 2019, giving conventional
healthcare companies various opportunities to sell portions of certain
“noncore” assets and really focus on their core functions. Alternatively,
conventional healthcare companies could partner with private equity in
acquisitions, which they would otherwise be competing against or unable to
accomplish without the partnership. 

For
example, last month KKR & Co., a private-equity firm, entered
into an agreement to purchase Envision Healthcare, an emergency department
staffing company. The deal was valued at $9.9 billion, including debt. If approved
by shareholders, the deal would be the largest in a string of recent
health-care investments by KKR. These investments include an ambulance service,
a company that helps treat children with autism, and a creator of various
medical devices.

What does this mean? Private equity
is accelerating
change in the industry. “Private equity
investment in healthcare isn’t going to single-handedly improve care quality,
enhance the patient experience or reduce healthcare costs to consumers,” PwC
stated. “But it likely is fueling
the efforts already in place.” Private equity firms bring wealth and
knowledge from other industries that can contribute to the healthcare
industry’s efforts to rein in costs and achieve better outcomes.