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HIPAA-Phobia Hampers Efforts To Track And Contain COVID-19
Get PDFThe Health Insurance Portability and Accountability Act (HIPAA), enacted by the US Congress 1996, laudably protects medical privacy in healthcare settings. However, this federal law has created a culture of fear that limits current efforts to address the COVID-19 pandemic. Healthcare providers, who are covered by HIPAA, may be reluctant to disclose information about outbreak clusters for fear of violating the law. Healthcare organizations, who are also covered by the law, still rely on fax machines to avoid violating HIPAA’s data security requirements. And the scrupulous rule-following in healthcare has given independent life to a HIPAA boogeyman. Thus, officials who are not covered by the law (e.g. schools) withhold or deter the release of valuable information—even when HIPAA does not apply to them. The Executive has taken some action to relax HIPAA in these unprecedented times and should take further action, along with Congress, to balance privacy rights with the need for greater transparency in the fight against COVID-19.https://scholarship.law.slu.edu/lawjournalonline/1055/thumbnail.jp
The CDC’s Moratorium: Will the New Year Bring About an Eviction Crisis?
Get PDFThe new relief bill has extended the eviction moratorium another month. In this article, Matt Donahoe discusses whether this will provide tenants the necessary protection to avoid an eviction crisis as well as whether the moratorium is an infringement upon a landlord’s constitutional rights.https://scholarship.law.slu.edu/lawjournalonline/1054/thumbnail.jp
Lessons Learned: Strengthening Medicaid to Address Health and Economic Emergencies
Get PDFCOVID-19 has disproportionately harmed low-income people, especially Black and Latino populations, seniors, and people with disabilities. Medicaid plays an essential role in providing coverage and access to care for these populations. As COVID-19 disrupted employment, earnings, and insurance coverage, Medicaid enrollment increased, in part because Congress offered states increased Medicaid funding in return for maintaining eligibility and enrollment for the duration of the public health emergency (PHE). At the same time, many states expanded eligibility and streamlined enrollment to assure that people could secure and keep coverage. Such policies resulted in more than 5.3 million more Americans having Medicaid coverage during 2020. However, increased demand for Medicaid during the pandemic’s economic downturn places pressure on state budgets. The secretary of the Department of Health and Human Services (HHS) and Congress should work together to ensure that the Medicaid enhanced federal match and maintenance of effort requirements continue at least through early 2022 to protect coverage for low-income Americans and to help states weather the economic recovery. HHS should rescind all policies that create barriers to enrollment and access to care. State governments should continue to use temporary emergency authorities to expand eligibility and streamline application and enrollment processes and make them permanent when the PHE ends. Congress should either proceed with President Biden’s campaign plan for a federal public option to provide low-cost insurance coverage, particularly important for states that have not expanded Medicaid, or enact an increased federal match for a limited period of time to encourage opt-out states to implement Medicaid expansion. This paper was prepared as part of the COVID-19 Policy Playbook: Legal Recommendations for a Safer, More Equitable Future, a comprehensive report published by Public Health Law Watch in partnership with the de Beaumont Foundation and the American Public Health Association
COVID-19, Courts, and the \u27Realities of Prison Administration.\u27 Part II: The Realities of Litigation
Get PDFLawsuits challenging prisons and jails for not doing enough to stop the spread of COVID-19 among inmates have faced mixed results in the courts: wins at the district court level are almost always followed by losses (in the form of stays of any orders to improve conditions) at the appeals court level or at the Supreme Court. This short article tries to explain why this is happening, and makes three comparisons between how district courts and appeals courts have analyzed these lawsuits. First, district courts and appeals courts tend to emphasize different facts in their decisions. District courts focus more on the severity of COVID-19 and the heightened risk of its spread in correctional facilities; appeals courts tend to emphasize more the enormous managerial problems correctional officials face in the day-to-day running of prisons during a rampant and hard-to-control pandemic. Second, when it comes to the constitutional test of whether correctional officials have shown “deliberate indifference” to the spread of COVID-19 in prisons and jails, district courts look more at the objective harm suffered by inmates, where appeals courts fix on the lack of subjective culpability on the part of correctional officials. Finally, and most fundamentally, district courts seem to work with a picture that prioritizes the constitutional standards for prisons and jails—about which judges are the experts—while appeals courts frame their opinions with an eye to the expertise of those who have the job of running prisons and jails and deferring to them. The article concludes by positing that real reform at the level of prison management is more likely to come from the legislative and executive branches than as the result of court orders
Social Media Self-Regulation and the Rise of Vaccine Misinformation
Get PDFThis essay examines the main characteristics and shortcomings of mainstream social media responses to vaccine misinformation and disinformation. Parts I and II contextualize the recent expansion of vaccine information and disinformation in the online environment. Part III provides a survey and taxonomy of ongoing responses to vaccine misinformation adopted by mainstream social media. It further notes the limitations of current self-regulatory modes and illustrates these limitations by presenting a short case study on Facebook—the largest social media vehicle for vaccine-specific misinformation, currently estimated to harbor approximately half of the social media accounts linked to vaccine misinformation. Part IV examines potential ways to improve stringency of ongoing modes of self-regulation of vaccine misinformation, as well as the creation of cooperative monitoring and mutual assistance networks dedicated to addressing issues specific to the field of vaccine misinformation
A FOIA for Facebook: Meaningful Transparency for Online Platforms
Get PDFTransparency has become the watchword solution for a range of social challenges, including related to content moderation and platform power. Obtaining accurate information about how platforms operate is a gatekeeping problem, which is essential to meaningful accountability and engagement with these new power structures. However, different stakeholders have vastly different ideas of what robust transparency should look like, depending on their area of focus. The platforms, for their part, have their own understanding of transparency, which is influenced by a natural drive to manage public perceptions.
This paper argues for a model of platform transparency based on better practice standards from global freedom of information or right to information systems. The paper argues that moves by platforms to assume responsibility over the truth or falsity of the content they host and amplify justifies a shift in how we understand their obligations of transparency and accountability, away from traditional self-reporting structures and towards a quasi-governmental standard where data is “open by default.” This change in posture includes creating a mechanism to process information requests from the public, to accommodate the diverse needs of different stakeholders. The paper also suggests establishing a specialized quasi-independent entity (a “Facebook Transparency Board”) which could play a role analogous to an information commission, including overseeing disclosure decisions and acting as a broader champion of organizational transparency. Although these changes represent a significant conceptual shift, they are not entirely unprecedented among private sector entities whose role includes a significant public function, and the paper notes a number of examples, such as the Internet Corporation for Assigned Names and Numbers’ Documentary Information Disclosure Policy, which could serve as a model for the platforms to follow
COVID-19 and Public Accommodations Under the Americans with Disabilities Act: Getting Americans Safely Back to Restaurants, Theaters, Gyms, and “Normal”
Get PDFCOVID-19 permanently changed the way places of public accommodation like restaurants, theaters, medical facilities, arenas, gyms, and many other proprietors of mainstream American activities must operate in order to accommodate people with newly-defined, COVID-19-related disabilities under Title III of the Americans with Disabilities Act (ADA). The required modifications will affect all patrons and employees of these establishments. Under the ADA, places of public accommodation are barred from discriminating against people with disabilities in the full and equal enjoyment of goods, services, and facilities. Infectious diseases like tuberculosis and HIV have been categorized as disabilities under the ADA, and COVID-19 is defining new categories of individuals with disabilities (including individuals vulnerable to COVID-19 complications) as revealed in this paper. Places of public accommodation will be required to establish non-discriminatory methods to identify “direct threats,” to modify policies and procedures for COVID-19-related disability groups, identified here, and remove structural barriers that discriminate against those same groups. Controversial measures like fever checkpoints, mandatory face masking, and required social distancing are discussed in depth and analyzed in light of the ADA’s requirements
Grand Juries Should Not Hear Police Misconduct Cases: Grand Juries will Indict Anything, but a Police Officer
Get PDFGrand juries will indict everyone but police officers. In this article, Kaeleigh Williams argues that the time has come for a new mechanism to be used in police officer misconduct cases.https://scholarship.law.slu.edu/lawjournalonline/1076/thumbnail.jp
Missouri Joins Other States in Providing Unpaid Leave for Domestic and Sexual Violence Victims
Get PDFDomestic violence has increasingly become an issue of employment law. Over thirty states provide workplace protections to employees facing domestic or sexual violence, now including Missouri. In this article, Haley Gassel provides an overview of the recently passed Missouri law and the significance of these safeguards.https://scholarship.law.slu.edu/lawjournalonline/1078/thumbnail.jp
Legal Education in a Pandemic: A Crisis and Online Teaching Reveal Who My Students Are
Get PDFThe COVID-19 pandemic upended things for everyone across the world in so many ways, including at universities and law schools. In switching to online teaching in the mid-semester last spring and continuing to teach first-year law students online this past fall, I have witnessed the strength and compassion of my students even in the face of the challenges of the pandemic, online learning, and political unease in our country. I have been heartened and bolstered by their deep commitment to building community with one another