Current Federal Law Research Articles

The Role of Medicaid in Promoting Access to High-Quality, High-Value Maternity Care

One of the most challenging aspects of health care improvement and reform is ensuring that individuals, particularly those who are vulnerable and low income, have access to care. Just as challenging is the imperative to ensure that the care accessed is of the highest quality possible. The Institute of Medicine (IOM) report, Crossing the Quality Chasm, identified the primary goal of any high-quality heath care system: The ability to furnish the right care, in the right setting, at the right time. This aim must also be the primary goal of Medicaid in regard to providing access to high-quality care for women throughout the reproductive cycle. Nationwide, Medicaid is a large purchaser of maternity care; in 2006, the program paid for 43% of all births and maternity costs represented 29% of all hospital charges to Medicaid. Under current federal law, state Medicaid agencies have to fulfill several obligations related to assessing, ensuring, and improving the quality of care, particularly for enrollees who receive services through managed care arrangements. The main purpose of this article is to analyze and describe the role of Medicaid in facilitating access to care for pregnant women and ensuring high-quality maternity care that is affordable. It first summarizes the federal Medicaid requirements regarding eligibility, coverage of benefits, financing, and service delivery, with a special emphasis on existing quality provisions. Then, it discusses current issues and recommends several Medicaid reforms, particularly in the area of quality assessment and improvement. All reforms, including Medicaid reforms, should seek to support the IOM-identified aims. Much of the emphasis in Medicaid policy development has been focused on access to care and great need for reform remains in the area of quality assurance and improvement, and disparity reduction because the program can play a significant role in this regard as well. More broadly, health care reform may provide an opportunity to revisit key issues around access to and quality of maternity care, including the benefit package, the content of services covered in the package, the frequency with which these services should be furnished, and the development of meaningful measures to capture whether women of childbearing age, including pregnant women, regardless of insurance status, indeed receive efficient, timely, effective, safe, accessible, and woman-centered maternity care.

Commentary: Overcoming Impediments to Public Agency Acquisition of Brownfield Sites

As Congress begins to entertain proposals to reauthorize the Environmental Protection Agency Brownfields Program, local governments will be paying particular attention to one issue: a proposed amendment to grant public agencies greater liability protection when they acquire contaminated property. Supporters contend that cities play a unique role in brownfield redevelopment—acquiring, cleaning up, and repositioning properties that are unlikely to attract private investment either because of depressed neighborhood conditions or because the properties are being held off the market by corporate mothballing practices. Current federal law offers minimal and confusing liability protection for these activities, and the result is that many cities pass over brownfield acquisitions for fear of engendering environmental liability. Those cities that proceed with brownfield acquisitions are rolling the dice in favor of community revitalization but also argue that federal law should be more protective. To rectify these issues, several states have adopted liability reforms that establish a more “causation based” liability scheme for local government acquisitions. A number of groups are advocating for similar reforms at the federal level. Acquisition of contaminated land by public entities is also often complicated by the complexities involved in eminent domain. First, if the acquiring agency lacks the authority to gain access to the site and cannot perform a site assessment prior to taking possession, fiscal concerns are heightened because cleanup costs will not be taken into account in determining fair market value. Secondly, the acquiring agency may not be allowed to deduct cleanup costs from fair market value, so the locality will, in effect, pay twice for cleanup costs. This article explores the statutory issues related to public agency acquisitions, focusing particularly on state reforms and exploring whether particular state liability reforms might serve as a model for a federal liability reform.Environmental Practice 11:311–319 (2009)

Love v. Love Handles: Should Obese People Be Precluded From Adopting a Child Based Solely Upon Their Weight?

This Comment will propose eliminating the adoptive parent's weight as a determinative factor in adoption proceedings, evaluating instead the parenting skills of the potential parents, as well as their ability to emotionally, physically, and financially care for the adopted child. Part II of this Comment will discuss the history of adoption law in the United States and show how this area of law arose out of the need to find loving homes for the overwhelming number of orphaned children in America. Part II will also describe the current adoption process to demonstrate how adoption agencies and the court system use discriminatory screening factors to give preference to "ideal" parents. Part III will provide an introduction to obesity and discuss how size stereotypes in American society negatively affect the obese person in numerous aspects of life from childhood through adulthood. Part III will also discuss the current federal and state laws already enacted to combat size discrimination in the workplace and suggest that similar laws be put in place in adoption proceedings as well. Part IV will propose that disallowing a person of size to adopt is weight discrimination and is likely unconstitutional as a violation of the Equal Protection Clause of the Fourteenth Amendment. Part V will discuss how an obese person may have a more difficult time in adopting a child due to the courts' ability to discretionarily deny an adoption based on the adoptive parent's weight. It will also examine similar practices of weight discrimination in international adoptions and argue that if the United States adopts the policy of denying adoption based on the prospective parent's weight, the obese person may not be able to adopt a child of any race, either foreign or domestic. Part V will then suggest the fallacy in the courts' concerns with granting an adoption to a person of size and illustrate how allowing an obese person to adopt will still meet the courts' objective of doing what is in the best interest of the child. Finally, Part VI will argue that the best course of action is to rescind the discriminatory policy of denying adoption based solely on the parent's weight, and allow adoptions to be based on the individual's parenting skills as well as his or her ability to financially and emotionally support the child.

English

Important farmland consists of prime farmland, farmland of statewide importance and local importance, and unique farmland. Prime farmland has the best combination of soil chemical and physical characteristics and suitable climate for producing food, seed, fiber, forage, and oilseed with minimum inputs of fuel and plant nutrients. Further characteristics are none to very slight hazard for wind and water erosion, none to small limitation to maintain soil quality, and sustainable. Reconstruction of Prime farmland soils after surface mining for coal are set forth in federal rules and regulations. Illinois has soil reconstruction criteria for non prime farmland soils (high capability land) that are very similar to soil reconstruction for prime farmland soils. Most of the high capability land also qualifies as farmland of statewide importance. Prime farmland soils, before the current federal law, were not reconstructed as cropland. The present federal law requires that prime farmland be reconstructed to cropland with yields equal to or more than the premined soil. Reconstructed prime farmland after surface mining for coal is dominantly massive (no soil structure) whereas typically a premined soil has structure. It has higher soil bulk density that is critical or limiting for crop root growth, lower soil root zone available water capacity, slower hydraulic conductivity, and lower corn yield than the pre-mined silty loess or lacustrine soils, loamy lacustirne soils, and some loamy glacial till soils. A possible explanation of yield differences for reconstructed mined soil and premined soil is the methods and procedures used to determine their yields. The present and future soil reconstruction of prime farmland soils will need to address saturated hydraulic conductivity (Ksat), develop technology to enhance infiltration of precipitation, and movement of water within the soil profile to result in a field capacity water content of 8 to more than 12 inches. All future soil reconstruction needs to use appropriate conservation practices and shape the landscape to increase infiltration of water into the soil.

Culture Shock: Expanding the Current Federal Law Against Female Genital Mutilation

Culture Shock: Expanding the Current Federal Law Against Female Genital Mutilation

An Administrative Remedy for the Crack Mandatory Sentencing Problem

Current Federal laws over-punish minor crack dealers. A legislative fix for the problem has proven politically infeasible. Drug, form, and quantity, which form the basis of the existing sentencing schema, are relatively poor proxies of the dangerousness of the offender or the harm created by the conduct-pattern underlying the case. An administrative requirement that low-level crack prosecutions be approved centrally could ensure that the five-years-for-five-grams mandatory sentence is not over-used, while keeping that sentence available for the relatively rare cases (e.g., as part of crackdowns on gang violence) in which it is justified.

Crime Shouldn't Pay: A Proposal to Create an Effective and Constitutional Federal Anti-Profiting Statute

It is conventional wisdom that crime should not pay. Unfortunately, federal law has struggled to implement this wisdom and pass constitutional muster. Current law violates the Constitution by targeting only certain forms of profiting that raise First Amendment concerns, such as writing books or making movies. This Article contends that Congress must avoid the embarrassment of allowing crime to pay by removing the law’s focus on expressive activity. The Article begins by reviewing the current unconstitutional federal law. It proceeds to argue that Congress should require courts to prohibit profiting as a mandatory condition of supervised release and redraft the federal anti-profiting statute to forbid all profiting from federal crimes. Finally, the Article proposes a revised anti-profiting statute.

Lobbying Reform Legislation Falls Short

Lobbying Reform Legislation Falls Short

Automatically Enrolling Eligible Children and Families Into Medicaid and SCHIP: Opportunities, Obstacles, and Options for Federal Policymakers

Sixty-two percent of uninsured children and two-thirds of uninsured, poor parents qualify for publicly funded health coverage programs but are not enrolled. This study assesses the potential impact of automatically enrolling children and parents in Medicaid and the State Children’s Health Insurance Program (SCHIP) based on determinations of other means-tested programs. Current law permits states to cover some uninsured parents based on information in their children’s Medicaid case files. However, current federal law forbids states from providing Medicaid or SCHIP based on the final income determinations of non-health agencies—the type of auto-enrollment that could reach eligible children. For such auto-enrollment to succeed, federal policymakers need to provide states with additional flexibility in determining eligibility and new resources for investing in information technology. Support for this research was provided by The Commonwealth Fund. The views presented here are those of the authors and not necessarily those of The Commonwealth Fund or its directors, officers, or staff. This report and other Fund publications are available online at www.cmwf.org. To learn more about new publications when they become available, visit the Fund’s Web site and register to receive e-mail alerts. Commonwealth Fund pub. no. 931.

TOWARD THE FRAMEWORK AND IMPLEMENTATION FOR CLEARANCE OF MATERIALS FROM REGULATED FACILITIES

The disposition of solid materials from nuclear facilities has been a subject of public debate for several decades. The primary concern has been the potential health effects resulting from exposure to residual radioactive materials to be released for unrestricted use. These debates have intensified in the last decade as many regulated facilities are seeking viable management decisions on the disposition of the large amounts of materials potentially containing very low levels of residual radioactivity. Such facilities include the nuclear weapons complex sites managed by the U.S. Department of Energy, commercial power plants licensed by the U.S. Nuclear Regulatory Commission (NRC), and other materials licensees regulated by the NRC or the Agreement States. Other facilities that generate radioactive material containing naturally occurring radioactive materials (NORM) or technologically enhanced NORM (TENORM) are also seeking to dispose of similar materials that may be radioactively contaminated. In contrast to the facilities operated by the DOE and the nuclear power plants licensed by the U.S. Nuclear Regulatory Commission, NORM and TENORM facilities are regulated by the individual states. Current federal laws and regulations do not specify criteria for releasing these materials that may contain residual radioactivity of either man-made or natural origin from regulatory controls. In fact, the current regulatory scheme offers no explicit provision to permit materials being released as "non-radioactive," including those that are essentially free of contamination. The only method used to date with limited success has been case-by-case evaluation and approval. In addition, there is a poorly defined and inconsistent regulatory framework for regulating NORM and TENORM. Some years ago, the International Atomic Energy Agency introduced the concept of clearance, that is, controlling releases of any such materials within the regulatory domain. This paper aims to clarify clearance as an important disposition option for solid materials, establish the framework and basis of release, and discuss resolutions regarding the implementation of such a disposition option.

Protecting Human Participants in Long-Term Care Research

There has been substantial recent activity addressed at the challenge of protecting the rights and welfare of vulnerable human participants in various kinds of research protocols, on one hand, without unduly impeding the conduct of research that promises findings that may substantially improve health and quality of life for many beneficiaries of research, on the other. Many of the emerging recommendations for improved participant protection are relevant to, and in some cases explicitly targeted at, vulnerable older persons, including long-term, chronically dependent nursing home and home health patients, who may be approached by investigators. Thus far, virtually all of the discussion and recommendations regarding research participant protection pertain to possible legal and policy changes at the federal level. Yet, both current federal law and emerging policy recommendations defer, either expressly or by default through their silence, on some very important matters about research participation, especially regarding informed consent, determinations of decisional capacity, and surrogate decision-making authority, to the laws of individual states. This article analyzes and interweaves recommendations regarding the role of state law and public policy in protecting older persons who are or may become participants in long-term care research projects.

Computer Hacking: Making the Case for a National Reporting Requirement

The incidences of computer hacking have increased dramatically over the years. Indeed, the current federal laws, including the Computer Fraud and Abuse Act, have done very little to deter potential computer hackers. This article finds that only a small percentage of computer hackers are ever caught and prosecuted. The biggest problem is that most victimized companies regrettably choose to hide the problem from the public due in part to negative publicity concerns. As a result, this article proposes that a mandatory reporting requirement imposed by Congress, which forces companies to disclose intrusions, will be salient to the problem of computer hacking in several regards. First, individuals who are affected by the intrusions will receive advance warning that their personal information was stolen by hackers. This will allow these affected individuals to take precautions in securing their identities. Secondly, the mandatory reportings will assist law enforcement in investigating and prosecuting a greater percentage of computer hackers. As more prosecutions of computer hackers are publicized, this should reduce the future incidences of computer hackings. Moreover, on July 1, 2003, California became the first state to enact a reporting requirement for computer hackings. This could provoke other states to pass similar reporting requirements. Because computer hacking is a national (and international) problem, Congress needs to consider enacting a reporting requirement before an untenable piecemeal state-by-state solution occurs.

Genetic testing: issues related to privacy, employment, and health insurance.

The discovery of the structure of DNA in 1953 opened the door to genetic research on an unparalleled scale, leading to the mapping of the human genome in 2000. As genes were discovered and their effects determined, it became clear that genes could be responsible in causing disease with certainty (eg, Huntington’s chorea) or in bestowing protection against or propensity for the potential future development of disease. Medical researchers have been fascinated by the prospect that genetic engineering could allow the repair of defective disease-related genes or the alteration of genes to impart protection. Controversial issues stem from the fact that, long before genetic science develops to the point of successful treatment of genetic disease, there will be an accumulation of knowledge that allows researchers to predict with reasonable accuracy the probability that a person will develop certain diseases. This discussion will be confined to posing the questions of how genetic knowledge and testing should be used by employers and the insurance industry, and the responsibility of government in protecting the individual’s genetic information. The authors also wish to draw the reader’s attention to the testimony of Harold P. Coxson, Esq. before the Senate Committee on Health, Education, Labor and Pensions on July 20, 2000. This well-prepared testimony contains a wealth of information that will form a substantial basis for the following discussions. Current Federal and State Laws on Genetic Testing

Current state and federal laws governing military leave for employees

Current state and federal laws governing military leave for employees

Does Proposed Federal Cyberstalking Legislation Meet Constitutional Requirements?

As a microcosm of society, the Internet attracts some of the same undesirable elements that inhabit the offline world. Unfortunately "cyberstalkers" are among them. A proliferation of stories posted on the Internet and reported in the news, as well as an increase in cases handled by police computer crime units, indicate the problem is on the rise. This article explores current state and federal stalking laws in the United States, their application to cyberspace and First Amendment concerns related to cyberstalking legislation. The article suggests that the current federal stalking law is inadequate to deal with the growing problem of interstate cyberstalking, reviews two bills in Congress that would make interstate cyberstalking a crime and concludes that both bills would benefit from slight changes in wording to help them deflect constitutional challenges for vagueness and overbreadth and make them more effective.

Systematic differences in employee stock ownership plan contributions: some evidence

Under current federal law, ESOPs are intended to provide an employee benefit and also meet corporate financial objectives. These dual purposes may not always be compatible. This study examines total retirement plan contributions, using data from Department of Labor Form 5500s, and demonstrates systematic differences in those contributions between companies establishing the ESOP for different reasons. A significant increase in benefits after the ESOP is implemented is found in those firms using the ESOP primarily as an employee benefit with no apparent finance objectives, while a significant decrease in benefits is found in those firms using the ESOP primarily for corporate finance reasons. The difference in benefits suggests that the reason an ESOP is adopted may make a difference to the employees of the firm. Further analysis links total retirement contributions to a measure of firm productivity. ESOPs with positive increases in total retirement benefits are associated with increases in sales per employee.

Anti-Immigrant Legislation, Social Justice, and the Right to Equal Educational Opportunity

In the debates over policies seeking to exclude illegal immigrant youth from public education, complex issues related to the human and legal rights of this group have often been reduced to cost-benefit analyses, to partisan polemics about multiculturalism and national identity, and to campaign posturing about tax burdens and crime. This article presents a contextual analysis of such policies and the related legal standards, with a focus on social justice and equality issues that are raised by the exclusion of any distinct group of children from educational opportunity. Our main thesis is that every individual's interest in meaningful public education is fundamental, in a constitutional sense, and that this interest does not depend on citizenship or economic status. We begin with an analysis of California's Proposition 187 and related Supreme Court decisions, most notably Plyler v. Doe (1982) and San Antonio v. Rodriguez (1973), and move to connections with school finance litigation. We continue with an appraisal of the potential of current federal and state case law to address issues of justice that legislation such as Proposition 187 might raise in the future. Finally, we present an argument for the strengthening of Fourteenth Amendment protections in the domain of education and give special attention to the formulations o f Justice Thurgood Marshall in several pertinent cases.

Prior misdemeanor convictions as a risk factor for later violent and firearm-related criminal activity among authorized purchasers of handguns.

Under current federal law, many persons with prior convictions for misdemeanor offenses pass criminal records background checks and legally purchase handguns. To determine whether authorized handgun purchasers with prior misdemeanor convictions are more likely than those with no criminal history to be charged with new crimes, particularly offenses involving firearms and violence. Retrospective cohort study. A total of 5923 authorized purchasers of handguns in California in 1977 who were younger than 50 years, identified by random sample. Incidence and relative risk (RR) of first charges for new criminal offenses after handgun purchase. Of the 5923 authorized purchasers, 3128 had at least 1 conviction for a misdemeanor offense prior to handgun purchase, and 2795 had no prior criminal history. Follow-up to the end of the 15-year observation period or to death was available for 77.8% of study subjects and for a median 8.9 years for another 9.6%. Handgun purchasers with at least 1 prior misdemeanor conviction were more than 7 times as likely as those with no prior criminal history to be charged with a new offense after handgun purchase (RR, 7.5; 95% confidence interval [CI], 6.6-8.7). Among men, those with 2 or more prior convictions for misdemeanor violence were at greatest risk for nonviolent firearm-related offenses such as weapon carrying (RR, 11.7; 95% CI, 6.8-20.0), violent offenses generally (RR, 10.4; 95% CI, 6.9-15.8), and Violent Crime Index offenses (murder or non-negligent manslaughter, forcible rape, robbery, or aggravated assault) (RR, 15.1; 95% CI, 9.4-24.3). However, even handgun purchasers with only 1 prior misdemeanor conviction and no convictions for offenses involving firearms or violence were nearly 5 times as likely as those with no prior criminal history to be charged with new offenses involving firearms or violence. Handgun purchasers with prior misdemeanor convictions are at increased risk for future criminal activity, including violent and firearm-related crimes.

A Longitudinal Analysis of the Link Between Learning Disabilities and Juvenile Delinquency in Mexican American School‐Age Youth

AbstractStudents with Learning Disabilities (LD) are a heterogeneous group of children who share the common characteristic of school difficulty and failure. More students in American schools are identified as Learning Disabled than any other type of disability under current federal law. The present study is a longitudinal survey that was designed to (a) test four hypothesized mediating links within the School Failure Rationale connecting juvenile delinquency (JD) to LD, and (b) apply the School Failure Rationale in the context of a low Socioeconomic Status, all‐Mexican American group of youngsters (n = 75; mean CA = 12.9; IQ = 88). A path analysis was conducted to determine significance between juvenile delinquency and the mediating variables of self‐esteem, peer delinquency, school dissatisfaction, and locus of control. Results indicate that all of the mediating variables except self‐esteem played either a direct or indirect role in self‐reported delinquency in year one or in year three of this study.

Students with Learning Disabilities in Education

The purpose of this study was to examine factors that have contributed to the success of students with learning disabilities (LD) in schools and to explore how these students manage their disabilities from kindergarten through college. The study followed a qualitative research methodology consisting of reviewing academic records and conducting interviews and classroom observations over a 6-month period. The subjects were 9 students with learning disabilities enrolled in a public 4-year university. It was found that the students experienced labeling, stigmatization, and gatekeeping throughout their school years. Furthermore, the students employed a variety of positive and negative coping techniques in an effort to successfully manage their disabilities in school. Positive coping techniques included relying on benefactors, implementing self-improvement techniques, and utilizing particular strategies and management skills to assist with academics. Negative coping techniques were described as "passing" and created tension for the students. Students employed passing techniques to avoid disclosure of their disability and to make it through school. The results of this study have significant implications for school administrators and university educators who provide services for students with LD under current federal laws, and further underscore the need for such students to self-advocate.