STU Scholarly Works (St. Thomas University)
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Front Matter
No full textFront Matter includes Table of Contents for St. Thomas Law Review Volume 25, Issue 3, Summer 2013
Using Pyett to Counter The Fall of Contract-Based Unionism in a Global Economy
No full textStructural changes in the economy that contributed to high unemployment have combined with global wage competition to destroy the contract-making and contract-enforcement powers of unions. Supporters of labor uniformly insist on defining the role of unions as contractual, and condemn the Supreme Court\u27s Pyett decision that permits unions to take control of their members\u27 legal claims. Yet unions\u27 contractual powers have dwindled under the National Labor Relations Act, thereby leaving workers vulnerable to the bargaining demands of their employers. This article shows how Pyett can renew the importance of unions. The Article argues that read appropriately, Pyett is positively transformative in the same way as the Steelworkers Trilogy. Although the Pyett decision did not offer a compelling justification for its conclusion that unions are authorized to bargain about antidiscrimination rights, unions\u27 effective advocacy for their members\u27 antidiscrimination claims may be a practical necessity today. The Article focuses on Pyett\u27s potential to transform the workplace by eliminating the line between contract and legal disputes. Using the Trilogy as a backdrop, and antidiscrimination rights as an example, the article addresses the theoretical and practical concerns cited as obstacles to Pyett\u27s viability. It provides original answers to the questions Pyett left open and provides a roadmap on how the decision may be implemented contractually to advance employers\u27 and workers\u27 interests
Advance Health Care Directives: Problems and Solutions for the Elder Law and Estate Planning Practitioner
No full textRemember that what you possess in the world will be found at the day of your death to belong to some one else; but what you are, will be yours forever. \u27 -Henry Van Dyke.
Since the modem movement for patient autonomy began gathering steam in the 1900s, individual concerns about the purpose, nature, and quality of medical care have become a larger component of the practice of medicine. However, state and federal law has been relatively slow to respond, and establishment of the relevant legal framework is relatively recent. New Jersey courts led the charge with their decision in In re Quinlan,\u27 regarding the right of an individual to decline medical treatment based on the constitutional right to privacy. Fourteen years later, the United States Supreme Court showed support for the Quinlan ruling by holding that an individual\u27s constitutionally established right to refuse medical treatment may be broader than the rights granted by state statutes. However, in the same decision, the Court also held that states have the right to require that evidence of an incompetent person\u27s wishes as to the withdrawal of life-sustaining treatment be proved by clear and convincing evidence and that the states have a legitimate interest in the preservation and protection of human lives within their borders.6 In an effort to protect patient autonomy, many states began authorizing advance health care directives as a method of providing evidence for unforeseen future health needs. In 1990, the Patient Self Determination Act\u27 (hereinafter PSDA ) passed, requiring Medicare-participating health care facilities to: inquire whether patients have advance health care directives; document this information in the patient\u27s chart; and provide information to all patients about their rights with regard to medical treatment decision making. Additionally, under the PSDA, Medicare and Medicaid participating facilities may not condition the provision of care, or otherwise discriminate against an individual, based on whether or not a patient has executed an advance directive, and participating facilities must provide their staff and the community with regular education and training on issues related to advance directives. Generally, advance health care directives are legal documents by which competent adults give instructions regarding their medical care in the event that they lose the ability to make their own health care decisions in the future. These documents serve two distinct purposes: (1) designating an individual to make health care decisions on behalf of the designator; and (2) providing guidance about the type and amount of medical care the individual desires. Loss of the ability to make medical decisions may be due to a variety of circumstances, including: mental infirmity, unconsciousness (including temporary unconsciousness), or the inability to communicate verbally or otherwise. Legal practitioners in the fields of Estate Planning and Elder Law have found that planning for end-of-life treatment, decision-making, and health care surrogacy has become an area of much concern for their clients, especially with the prevalence of highly-publicized cases like the case of Terri Schiavo. This article will concentrate primarily on critiques of advance directives and practical issues relevant to the Florida practitioner, and will provide some possible solutions. However, a number of the problems addressed in this article are similar to those faced by out-of-state peers
Front Matter
No full textFront Matter includes Masthead, advisors, and Table of Contents for the Intercultural Human Rights Law Review Volume 8 (2013)
Compensating Collateral Damage in Elective International Conflict (Distinguished Lecture)
No full textCompensating Collateral Damage in Elective International Conflict , a Distinguished Lecture by W. Michael Reisman
Standards and Basic Principles of Examining and Evaluating Capacity in Guardianship Proceedings
No full textIn the realm of guardianship law, an elder law attorney is well aware that a declaration of incapacity may strip an individual of more rights than that of a convicted felon. The concept of whether capacity is a matter of fact or law is often debated. The framework for establishing standards governing which rights warrant removal is tenuous and complex. A factual determination of incapacity requires a finding, by clear and convincing evidence, that the Respondent, or alleged incapacitated person, is both functionally unable, either wholly or partially, to care for their person (self) and/or property. This determination culminates in a finding by the court that the impaired person lacked the ability to make or communicate certain decisions as the result of some proven disorder or disability.3 The intent of the Florida legislature is to make available the least restrictive alternative to guardianship and seek to permit incapacitated persons to participate as fully as possible in all decisions affecting them ... in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible ... . Essentially, the state seeks to provide assistance to the public in a form that least interferes with the legal capacity of a person to act on their own behalf. Florida law presumes capacity and supports the least restrictive alternative consistent with the limitations of a person presumed to lack capacity, in the event that a limitation must be placed on their personal autonomy. This article will explore the shortcomings in the current state of the law, when a court has to decide whether fundamental civil rights warrant removal due to an individual\u27s lack of capacity to exercise those rights
Medicaid Managed Long-Term Care: Is Florida Ready
No full textMedicaid is a nationwide health insurance program, created in 1965 as Title XIX of the Social Security Act for the poorest and sickest individuals. The Medicaid program operates through a federal and state partnership with the Centers for Medicare and Medicaid Services ( CMS ) providing federal oversight. States must provide coverage of certain groups and services in order to receive federal funds for their Medicaid programs. However, states may include additional optional groups and services in each state plan. States use different methods of service delivery to Medicaid beneficiaries. In July 2011, a national average of 74.22% of Medicaid beneficiaries were enrolled in managed care organizations. Although Medicaid managed care organizations grew rapidly in the mid-1990s, few states implemented a managed care program for Medicaid long-term care and instead used various models of delivering services within the fee-for service system. State and Federal governments have been looking at Medicaid managed long-term care again because of increased budget pressures. Part II of this article will describe how Medicaid managed care functions. Florida\u27s historical use of Medicaid managed care and the current, unprecedented implementation of a new statewide, mandatory Medicaid managed care program is examined in Parts III and IV. Part V will explain developments on the federal level in the area of Medicaid managed care and specifically with the dual-eligible population, including the recently issued CMS Guidelines for providing long-term services and supports ( LTSS ) through Medicaid waivers. Part VI will evaluate Florida\u27s implementation of Medicaid Managed Long-Term Care ( MMLTC ) in comparison to the CMS Guidelines. Part VII will look at Arizona as a model for Medicaid managed long-term Care.io The article concludes that although Medicaid managed care has potential to improve coordination of health care services and decrease Medicaid spending, Florida\u27s Medicaid Long Term Care Program must be implemented with substantial, continual monitoring and oversight with emphasis on increased improvement in quality assurance measures and procedures
The Reductio Ad Absurdum of Regulating Corruption
No full textDiscussion of the campaign finance and regulatory issues in McCutcheon v. FEC
