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09/21/2020 - 9:50am

The fourth session of the Completed Life Initiative conference is an all-star cast from Canada, Australia, and the Netherlands. Join Jocelyn Downie, Ben White, and Agnes van der Heide on Thursday, September 24, 2020.

09/21/2020 - 8:35am

To

tools to help people determine their healthcare wishes in advance if they are...

09/21/2020 - 7:00am

By Katherine Zuk

Since the start of the pandemic, jails and prisons have continuously struggled to stop the spread of COVID-19 cases.

The novel coronavirus has been ravaging the U.S. since late February, with over 6 million cases and 185,092 deaths. Emerging data shows alarmingly high rates of COVID-19 in jails and prisons nationwide, including over 85% of inmates testing positive at two facilities in Ohio. As of September 3, there have been at least 180,045 cases and 928 deaths in prisons alone – and many fear these numbers are severely underreported.

Philadelphia offers an unfortunate case study.

On average, the city has a daily population of 8,045 in its jails, with 647 entering and 678 leaving each week. By May 5, only about 7% of those in jails were tested, and more than 75% of those tested positive, despite the first case of coronavirus being recorded in Philadelphia on March 10.

Low-income communities, and especially Black and Latinx populations, face higher rates of arrest and incarceration, and research shows those same communities are disproportionately affected by coronavirus.

In Philadelphia, nonprofit and legal aid organizations have been fighting for the immediate release of vulnerable incarcerated populations, but the appeal was denied.

By contrast, a similar order was approved by New Jersey’s chief justice, demonstrating an important precedent for these cases. On April 10, Pennsylvania’s Governor Wolf signed an order for the reprieve of 1,200 to 1,800 prison inmates, but as of June 30, only 159 have been released.

Criminal justice reform activists in Pennsylvania launched a hunger strike in response the Governor’s inaction, and inmates in Philadelphia’s jails and prisons have filed lawsuits regarding the poor conditions during the pandemic.

Jails and prisons face unique challenges in managing the spread of COVID-19. Jails in particular are high-traffic, with an average of about 200,000 people moving through facilities weekly nationwide. Inmates are not isolated from their community; the facilities where they are held are linked to neighboring communities – with visitors and staff traveling to and from daily.

Conditions inside of jails and prisons are not conducive to physical distancing and disease prevention. Communal bathrooms, cafeterias, and cells, combined with limited access to health services and healthcare, pre-existing health conditions of inmates, sanitation practices, and substandard nutrition makes it a “petri dish” for infectious diseases. Further, hand sanitizer is contraband due to its alcohol content. Prisons have a history of substandard conditions for those more susceptible to illness, with some transferring patients to solitary confinement to contain the spread of disease. Recent reports estimate the number of people locked alone daily for 22-24 hours grew from 60,000 to 300,000 during the pandemic.

A letter signed by more than 60 inmates at Philadelphia Industrial Correctional Center was sent to the Philadelphia Community Bail Fund stating that the facility is not following CDC guidelines. Cells are shared by those who have tested positive and those who have not, guards are not always wearing gloves, and more deaths are being witnessed than reported. Philadelphia jails have not been releasing data regarding whether or not staff has been tested. The recent social unrest over police violence have created an additional strain on jail systems, potentially further facilitating the spread of coronavirus.

And though guidelines exist for preventing the spread of coronavirus in correctional facilities, there is no enforcement mechanism. It is difficult to take swift action to protect this population because of the many groups enmeshed in the legal system. Philadelphia judges and courts, district attorneys, defenders associations, probation and parole officers, jail staff, guard unions, the Mayor, and the Governor all have a role in mitigating the spread of coronavirus, but do not necessarily collaborate. Approaches and reporting have also varied vastly by county.

Testing in jails has been low in Philadelphia County. By comparison, neighboring Montgomery County tested every inmate, and Chester County routinely updates case information. Prior to instituting universal testing of inmates in Philadelphia jails on May 15 – two months after the Philadelphia stay-at-home order was issued – Health Commissioner Dr. Tom Farley said that he “did not see a clear benefit to universal testing behind bars.”

How are other cities containing the spread in their jails?

Rikers Island jail in New York City is struggling with its ongoing overcrowding issues. Cook County jail in Chicago is linked to 16% of coronavirus cases in Illinois. Los Angeles has been sued by inmates over jail conditions.

Reporting of COVID-19 cases inside jails and prisons is not uniform. In some states, jails and prisons are routinely updating information on confirmed cases. Elsewhere, nonprofit organizations are compiling data from each facility. More numbers are being released from prisons than jails, but there is no consistency in public reporting.

UCLA Law’s Behind Bars Data Project is compiling a comprehensive list of confirmed cases, jail releases, legal challenges, and policy responses to the crisis in correctional facilities.

So long as cases grow among the incarcerated, those who are being released and those who are working in those facilities will continue to spread COVID-19 to their communities. Epidemiologists estimate that, under current circumstances, the spread of coronavirus in jails and prisons could cause the death of an additional 100,000 people.

Public health law experts emphasize the importance of expanding testing in jails and continuing that testing and support post-release. Mitigating disease spread in jails and prisons is of crucial importance in its own right, and as a component of both statewide and national plans to control the COVID-19 pandemic.

Katherine Zuk is an MPH-MSW student at the Temple University College of Public Health who works for the Center for Public Health Law Research. She also serves on the MacArthur Safety and Justice Challenge’s Community Advisory Committee in Philadelphia.

The post Jails and COVID-19: An Overlooked Public Health Crisis in Philadelphia appeared first on Bill of Health.

09/20/2020 - 10:16am

ProPublica has a powerful story about doctors giving patients "do-not-resuscitate orders without family or patient consent, sometimes overruling families that wanted everything done for their loved one." That seems inconsistent with Causey and related Louisiana law.

09/20/2020 - 2:30am

Nona Wilson is a retired Intensive Care Unit and Emergency Department registered nurse/hospital administrator. In a recent article, she provides advice on how to make your advance directive effective. Among other things, she recommends supplementing it with a video.

09/19/2020 - 3:00am

The U.S. Court of Appeals for the Ninth Circuit has rejected a constitutional challenge to the Uniform Determination of Death Act (UDDA). The court did not reach the merits, but decided the case on standing.

09/18/2020 - 1:00pm

By Marco Antonio Nuñez

During these months of the COVID-19 pandemic in Chile, the need to align the constitutional process with long-postponed structural reforms to the health system has become evident among public health experts.

Capitalizing on this moment might avoid the possibility of a constitutional right to health becoming a dead letter or being reduced only to the prosecution of particular cases, postponing again the aspirations of the majority of Chileans.

Although the Chilean Constitution promulgated under the dictatorship in 1980 and subsequently reformed in several of its chapters recognizes “The right to the protection of health,” it has been tainted by authoritarianism from its origin, and promotes a subsidiary role of the state in health.

It has been 30 years since Chile recovered its democracy. This recovery has been characterized by economic growth and the adoption of redistributive social policies that have made it possible to drastically reduce poverty levels and achieve satisfactory health indicators in the Latin American context. However, major social inequalities still persist and the recognition of social rights in a constitution created in democracy is still pending.

In the last months of 2019, mobilized citizens strongly questioned institutional biases as well as the political and the social order. In the coming months, Chile will most likely draft a new Constitution written by a Constituent Assembly to be democratically elected in April 2021.

One of the most frequent and strongest demands made by citizens has been the right to health. Nationally representative surveys conducted in August 2020 show that 93% of Chilean citizens agree with the statement “the right to health should be guaranteed by the Constitution.”

There is, however, an urgent need to demystify the misunderstanding that the constitutional guarantee will be sufficient to improve equity, access, quality and financial protection in health. As Alicia Ely Yamin stated in a recent article on Chile, “significant attention should be paid to the alignment of norms with the institutional architecture and regulation of the health system.” A right to health should be aligned with legislative reforms in insurance and provision. In order to achieve this, it is imperative to reach a structural health reform agreement in Chile that achieves the following:

  1. Increased state contributions and decreased out-of-pocket expenditures. Social spending on health should be raised from 8.98% of the GDP to the U.K. or Canada average of 10%, without sacrificing funding for education, social security, or housing. A major indicator for evaluating a health system’s performance is the amount of out-of-pocket payments that people must make to finance their health expenses. In Chile, out-of-pocket spending remains remarkably high compared to other OECD countries. In 2015, out-of-pocket spending as a percentage of household consumption in Chile reached 4.1%, compared to the OECD average of 3%, and exceeded only by Hungary (4.4%), Greece (4.4%), South Korea (5.1%) and Switzerland (5.3%).
  1. A Universal Health Plan containing a comprehensive package of preventive and curative benefits, compulsory for public and private insurers, should be the leading axis of the constitutional guarantee of the right to health. Solidarity-based financing schemes from young to old, from healthy to sick, and from rich to poor with risk adjustment models that are financed by state contributions and a universal per capita health premium are the necessary components for the implementation of the Plan. We must agree on the expansion of Chile’s most successful health reform carried out by the government of Ricardo Lagos 15 years ago: the Explicit Health Guarantees Law (Ley de Garantías Explícitas en Salud).
  1. The reform of Patients’ Bill of Rights to explicitly define the rights and duties of users of health services, both in the public as well as in the private sector. We should, additionally, prevent massive litigation as an instrument of conflict resolution, since international experience (Colombia and Brazil) shows that groups with greater power and influence have better access to justice, resulting in a framework of privileges rather than social rights in health. Health priorities should be defined as a result of public policy, where cost effectiveness analysis and national burden of disease studies play an important role. Private companies should not be allowed to create artificial demand for technologies and medicines, and national health priorities should not be set by judges’ isolated rulings. The U.K. and Canadian experiences are enlightening in assuring the fair distribution of resources in the health system.

The task at hand is to reduce income-related gaps in access and quality of health care in Chile. Social rights, defined as guaranteed access to health coverage with decent standards regardless of people’s ability to pay, must become the fundamental pillars of the right to health in the new Chilean constitution.  To secure these rights, comprehensive health sector reforms must follow during this new phase of democracy in Chile.

 

Marco Antonio Nuñez, MD, MPH, PhD, is a lecturer on Public Health at Finis Terrae University, School of Medicine and Director of PTG Salud, a public health policy think tank in Santiago, Chile.

As a medical student, he was elected President of the Chilean Student Federation in 1989, playing a key role in the democratic movement against Pinochet regime. He served as Director of North Santiago Health District and appointed Valparaiso Governor between 2001 and 2003. He was elected Member of the Chilean Parliament (2006 to 2018), four terms President of Legislative Health Commission, and President of the Chilean House of Representatives in 2015.

He holds a medical degree from University of Chile, a Master of Public Health from the Harvard T.H. Chan School of Public Health, and a Ph.D. in Health Policy from the Johns Hopkins Bloomberg School of Public Health.

The post Chile’s New Constitution, the Right to Health, and Health System Reforms appeared first on Bill of Health.

09/18/2020 - 10:46am
Join End of Life Choices New York on October 7, 2020, for a conversation with Diane Rehm about her new book, When My Time Comes – Exploring the Option of Medical Aid In Dying.
09/18/2020 - 10:00am

By Veronica Vargas

At this unprecedented COVID moment, health has been revealed as one of our most precious possessions and protecting it has become imperative. The right to health was articulated by the WHO in the Declaration of Alma-Ata of 1978. The upcoming constitutional debate in Chile is an opportunity to re-examine this concept.

The Chilean constitution specifies the right to “free and egalitarian access” to health care. Simultaneously, the constitution guarantees that “each person has the right to choose the health system they wish to join, either public or private.”

These provisions have championed a prospering private health sector, with corporate clinics and a private insurance system that represents almost half of total health spending.

However, this private sector serves less than 20 percent of the population. Nearly 80 percent of the population utilizes public sector insurance. Although the public sector has been expanding its coverage of health services, and health indicators for those with public insurance have been improving, the public sector is chronically underfunded. Public sector health care spending represents only 4% of the GDP.

Public health interventions and pharmaceutical innovations have been essential in extending life expectancy and improving well-being. In particular, access to pharmaceuticals represents a critical part of health care. But access to drugs is far from universal. Nearly a third of out-of-pocket spending in Chile is for drugs. And out-of-pocket expenditures represent 33 percent of Chile’s total health expenditures, which is one of the highest proportions of out-of-pocket expenditures for the OECD countries. Many feel that they must handle the health risks they encounter by themselves, with wages seldom stretching to cover these expenses. As a consequence, social protection is being seriously undermined.

Access to health care and pharmaceuticals were among the key demands during the social protests of last year —which had nearly 1 million demonstrators on October 25th. One of the main targets of discontent was pharmacy chain stores. Tenuous access to necessary drugs is bolstered by high variation in prices at pharmacies. Patients are nudged to purchase goods they don’t need in times of greater vulnerability. This situation is compounded by the state’s unwillingness to intervene and regulate retail pharmacies and drug prices. As a result, citizens are demanding that the right to health be guaranteed in the constitution.

Incorporating the right to health in the constitution has had mixed results in Latin America. In the late 1990s and early 2000s in Brazil, the right to health positively impacted the access to HIV/AIDS treatment and overcame the gaps between what was stipulated in the public policy and what was implemented. Since the mid-2000s, disputes over the coverage that the state must provide have been resolved through litigation. Sometimes, litigation has led to the provision of ineffective care in the public sector — something we should be cautious about in the future.

The upcoming plebiscite presents a historic opportunity to open a debate and incorporate the principles of a right to health and universal health care into the nation’s constitution, which, in turn, should facilitate legislative reforms that protect people, especially at their most vulnerable. All Chileans stand to benefit from such reforms.

 

Veronica Vargas, Ph.D., is an economist who focuses on health economics, global health, and health policy. She is affiliated with the Alberto Hurtado University, Chile. For the last three years, she has been a visiting scholar at Harvard University. Her current research explores the research and development of novel vaccines and pharmaceuticals for infectious diseases, in both Latin America and South Asia. She is a former visiting scholar at the David Rockefeller Center for Latin American Studies, Harvard University.

Vargas would like to thank Bernardo Aguilera and Sergio Poblete for their comments.

The post The Right to Health in the Upcoming Constitutional Debate in Chile appeared first on Bill of Health.

09/18/2020 - 7:00am

By Sunnie Ning

Salons, movie theaters, gyms, churches — if you have been somewhere recently that is indoors or requires close personal contact, chances are, you have encountered a COVID liability waiver. But how enforceable are they?

Liability waivers, which stand at the intersection of torts and contract law, are a matter of state law. They have been on the rise as a contractual solution to tort problems since the 1980s, and are now common for recreational and sporting activities with higher-than-normal risks. However, no court has adjudicated on the enforceability of a COVID liability waiver yet, and the unique nature of the pandemic makes it difficult to predict how courts will rule.

Standard gym and health club waivers, operating outside the context of a pandemic, may provide insights into the enforceability of COVID waivers.

In a non-pandemic context, gyms present moderate, commonplace injury risks. At an exercise facility, injury risks can be a function of both the business’s and other users’ behavior, which is similar in nature to COVID-19 infection risk indoors. Also, in both cases, courts have to balance the interest of customers to have access to safe business premises, and the interest of businesses to avoid high litigation expenses.

COVID waivers likely will be subject to close judicial scrutiny based on public policy considerations. Public policy considerations are the first thing courts look at when determining whether liability waivers are enforceable.

Public necessities, such as utilities or common carriers, cannot shift their liability through waivers. For businesses of a less public nature, such as gyms and health clubs, a majority of courts tend to disfavor them and apply a rigid test regarding waivers’ enforceability, although a minority of states favor the use of waivers as a matter of public policy.

Connecticut has concluded that all liability waivers for fitness clubs are against public policy, because they undermine the tort compensation system and public policy favoring participation in athletics and recreational activities.

For COVID waivers, although the actual responses of the courts are hard to predict, courts’ attitudes towards gym waivers are still a useful anchor. Courts must balance public health reasons disfavoring shifting liability with economic incentives to shield businesses, and especially small businesses, from unpredictable COVID lawsuits.

Even if they are found to be enforceable, courts will scrutinize the language of COVID liability waivers carefully.

Observing that liability waivers are frequently preprinted forms offered on a take-it-or-leave-it basis, some courts have held that waivers constitute unenforceable contracts of adhesion. That being said, finding waivers to be contracts of adhesion itself does not automatically lead to a finding of invalidity. It may be valid if the language in the waiver is clear, unambiguous, and sufficiently conspicuous to alert the signer that he is waiving his rights.

In addition, COVID waivers likely will only shield businesses from ordinary negligence.

Waivers cannot limit a business’s liability for gross negligence, recklessness, or intentional torts. But showing gross negligence, recklessness, or intentional tort is a high burden for plaintiffs in the context of gyms and health clubs.

Failing to apply the Red Cross lifeguarding standardsfailing to implement industry standards for exercise equipment, and failing to provide protective gear for press machines have all been found to be covered by waivers as a matter of ordinary negligence.

However, the New Jersey Supreme Court has noted that if a club was aware of a defective piece of equipment and failed to take action, or if it dangerously or improperly maintained equipment, it would not be able to use a waiver to shield its reckless or gross negligence.

Applying this to the COVID context, business owners likely would be able to release their responsibilities for failing to implement certain COVID precautions through a waiver, but would not be able to deny liability for intentionally letting in a COVID-positive patron.

Even without a liability waiver, suing a business for negligence due to COVID infection presents other challenges. For example, without precise contact tracing, it would be difficult to prove that a patron contracted COVID at a specific business, for example, a movie theater. Moreover, legislative and executive actions have popped up in many states to preempt civil liability, making it hard for consumers, and even employees, to hold businesses liable for COVID-19 infection, although these protections are usually limited to ordinary negligence as well.

The post Are COVID Waivers Enforceable? Look to Gym Waivers for Insights appeared first on Bill of Health.