Health law practitioners have specialized training and knowledge that should be utilized to take on health challenges facing our communities. We also have a moral and ethical duty to advocate for change where we see evidence of systemic inequities, and we are currently in a moment where these skills can effect important and lasting change.

As we learn more about COVID-19 from scientists, public health experts, and medical practitioners, we are getting a clearer picture of which individuals and groups are most at risk from the virus.  However, along with these identified risk factors, there is growing evidence of racial health disparities associated with the disease. Specifically, African Americans are contracting COVID-19 at higher rates than other racial groups, and are more likely to die from the disease than their non-African American counterparts. Here in Chicago, 72 percent of the city’s COVID-19 deaths have been Black Chicagoans, even though only 30 percent of the city’s population is Black. And there are similar patterns in the data from other cities and states.

The explanation for why communities of color are disproportionately affected by COVID-19 could be the same reason that we see other health disparities in those communities. The Social Determinants of Health (SDH) are the conditions in which people are born, grow, work, live, and age, and the wider set of forces and systems shaping the conditions of daily life. And according to the World Health Organization’s definition, these forces and systems include culture and history that make up social norms, economic policies, and political systems. The history of this country, with its legacy of slavery, segregation and discrimination, influences the structures and systems in place that affect population health.

Communities of color are doubly vulnerable to this particular disease, as they have higher infection exposure risks, as well as systemic and institutional risks that increase mortality. A recent report by the Chicago Urban League explains how longstanding elements of structural racism contribute to increasing these vulnerabilities as a higher proportion of people of color work in low-paying service jobs deemed essential. For example, about one-third of all Americans have the types of jobs that allow them to work from home, compared to less than one-fifth of Black Americans with those types of jobs. Communities of color are also frequently located in areas with poor air and water quality. These environmental hazards leave residents more vulnerable to chronic and acute respiratory and cardiac illness.

Academics and professionals engaged in the health care field have a key role in addressing systemic disparities through community engagement, for data collection, information sharing, and confronting root causes of negative social determinants of health. This advocacy can only be successful where we partner with communities of color, as there can be “nothing about us without us.” Those partnerships should extend not only to gathering and sharing data, but also to informing research and policy. Building trusting and genuine partnerships is not easy, and takes a lot of sustained effort, but achieving health equity requires centering and amplifying the voices of those with lived experience. Community members and leaders are subject matter experts, and have crucial insights into what interventions are necessary and can succeed.

Some  ideas from UIC’s School of Public Health for immediate action include sharing factual information and data that have been vetted by reliable sources, acknowledging and responding to widespread mistrust and misinformation, remaining connected to community partners, and supporting legal and policy responses that address social determinants—both those that are root causes as well as immediate needs.

For example, mass incarceration and detention are potentially responsible for increased spread of infection, as jails, prisons, and detention facilities have a steady stream of people into and out of the facilities, and are often overcrowded, making it impossible for residents to maintain social distance and good hygiene practices. Black and Latinx community members are incarcerated and detained at a much higher rate than other sectors of the population. Decarceration efforts by organizations like Uptown People’s Law Center here in Chicago use both a civil rights and a health equity lens to push for reforms that address root causes, as well as urgent immediate needs.

Using a health equity lens to advocate for changes in employment, housing, and public benefits policy is well within the wheelhouse of health law professionals, but why should we take on this role?

The preamble to the model rules of professional conduct urges attorneys in their roles as public citizens to “seek improvement of the law, access to the legal system, and the administration of justice.” A lawyer should “cultivate knowledge of the law beyond its use for clients, and employ that knowledge to reform the law” where inequities are observed. Our role in society and our moral obligations as lawyers also moves us to act in the public interest, particularly those of us who have experience and practice in the health law space to champion these types of reforms. Finally, as members of the DePaul University community, we have the responsibility to further the mission of this institution—to apply our “specialized expertise in ways that contribute to the societal, economic, cultural and ethical quality of life in the metropolitan area and beyond.”

On Thursday, Feb. 20, the Jaharis Health Law Institute hosted Professor Christopher Buccafusco, Director of the Intellectual Property and Information Law Program and Associate Dean for Faculty Development at Cardozo School of Law, for his lecture, “Pharma Patents and Happiness: how patent law should make people better off,” , in line with his co-authored book, “Law and Happiness.”

He began by looking at the language of Patent Clause, Article I, Section 8, Clause 8:

[The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

(emphasis added by Professor Buccafusco)

Drawing on this provision, he noted that U.S. patent laws exist to promote people’s welfare through inventions and innovations that make people better off. He pointed out little attention has been paid to figure out what it means to promote people’s welfare via patent law, and how to measure them. He opined that, “law and happiness,” although two seemingly  unrelated concepts, are indeed closely related. Taking a hedonic approach, he briefly introduced the main arguments in his book: how the law affects people’s life, and how it can do so in a better way.

Acknowledging the difficulties of measuring individuals’ wellbeing and its subjectivity, Prof. Buccafusco advocates a market-based approach to achieve these goals of U.S. patent law. This is particularly so given that the U.S. patent law has long been recognized on utilitarian or consequentialist grounds.

Under this theory, people’s welfare can be fairly understood as satisfying individual preferences. Professor Buccafusco took a smartphone as an example, to show how market dynamics affect the patent system to make people’s lives better off. He expounded that the market can be used as a mechanism through which patent law can make people’s lives better, by incentivizing innovations. For example, we, as consumers, are not only those who decide whether to buy the phone, but also those who further decide: which phone, when, where, and how much. By doing so, individual consumers satisfy their own preferences at their own expense, based on their own decision.

The problem in the pharmaceutical markets, however, he explained, is that market dynamics that affect supply and demand of patented products in a certain market, do not exist in the patent-based pharmaceutical markets. Moreover, considering the billing system of pharmaceuticals that generally rely on insurance companies,  Medicaid or  Medicare, addressing market-effects gets much more complicated.

Unlike the patent system, he also noted that, government-sponsored grants or prizes generally do not rely on markets, and thus necessarily may not be linked to individual preferences as a measure of welfare that can be, or should be produced through the sponsored-innovation.

Focusing on exclusive rights afforded under the U.S. patent laws, which permit patent owner to  benefit through monopolized prices for a certain period, he elaborated on how to measure welfare based on Health-related quality of life (HRQoL) and quality-adjusted life-years (QALYs).

Combining a market-based approach and a welfare-measurement mechanism, Professor Buccafusco opined that the patent term should be afforded differently, at least for pharmaceuticals, based on welfare-maximizing effects that can be promoted, rather than simply relying on satisfying consumer preferences under existing supply-demand relationships.

The bottom line is, as he suggested, that different patent terms and rules should be adopted for different types of technology in order to encourage innovation by virtue of improving welfare. As technology develops and social norms change, maybe it’s time to reshape the patent regime, waiving to goodbye to rigid rules and uniformity.

[Ed: Prof. Buccafusco’s presentation was partly based on his recent paper, “Disability and Design,” (Buccafusco, Christopher J., Disability and Design (December 3, 2019). New York University Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3497902 or http://dx.doi.org/10.2139/ssrn.3497902).]

On February 19, 2020, the Jaharis Health Law Institute (JHLI) was honored to have John Travis, Vice President of Regulatory Research and Strategy at Cerner Corporation, speak during another installment of the JHLI Lunch Lecture Series. Mr. Travis’s presentation focused on the federal interest in health information technology (HIT) and interoperability in compliance with federal health insurance programs.

Cerner is the largest publicly traded HIT and electronic health record (EHR) company, so staying up to date with the ever-changing regulatory environment is a constant priority.  Beginning with the enactment of the Healthcare Insurance Portability and Accountability Act (HIPAA) in the mid-90s, the federal government created major privacy and security elements that impacted HIT. It gave patients more rights with regards to their health records, including the ability to amend and correct their records. Further, it created the need for technical, physical and administrative controls to protect electronic health information (EHI).

With HIPAA as the foundation, the federal government continued to enact more legislation to increase the use of HIT. The government slowly moved away from voluntary compliance, where only entities utilizing HIT had to comply with rules, to actively incentivizing the adoption of HIT. Stark Law and Anti-Kickback Statute safe harbors permitted donations of HIT to physicians so long as the HIT enabled interoperability, privacy and security. The Medicare Improvements for Patients and Providers Act (MIPPA) established the first “use” incentive for physicians relative to HIT by introducing a reduction in payment for failure to adopt. This was a precursor for an even more involved role to come for the federal government.

The HITECH Act was the federal government’s transition from experimenting, encouraging and incentivizing of HIT to a very direct role. It created major changes, most notability Meaningful Use which established penalties for failure to use HIT. HITECH also created HIPAA updates specific to EHR. Further, it changed the legal liabilities for entities in the HIT space by creating the Business Associate (BA) designation. For companies like Cerner, becoming a BA puts them on the same footing as providers in terms of compliance with these federal privacy and security laws.

With so much regulatory change over the last 25 plus years, where is the industry going from here? Mr. Travis highlighted a continued push towards value-based payments and the impact it will have on HIT and interoperability. Further, Mr. Travis said that we could see expansions of HIT use beyond physicians and hospitals along with expansions of federal programs and incentives for adopting HIT. Ultimately, Mr. Travis said, the goal of federal policy in HIT and interoperability is to make EHI access, use and exchange ubiquitous to the point of including for care, consumer use, research, or even population health planning.

On March 12, The Mary and Michael Jaharis Health Law Institute holds its annual Symposium on Health Law and Intellectual Property entitled Genetic Justice: Data, Privacy, and Crime. The symposium brings scholars from around the country to discuss emergent substantive justice issues surrounding the rapidly-innovating research genetics and genomics industries. Professor Valerie Koch, Jaharis Faculty Fellow and Director of Law and Ethics at the University of Chicago’s MacLean Center for Clinical Medical Ethics, is the symposium’s principal organizer.

While advances in genetic technologies have raised a host of issues related to privacy and informed consent, Professor Koch sought to reach broader issues at this year’s symposium. “There’s always been —  especially within the United States  — an emphasis on autonomy, informed consent, personal decisionmaking, and individuality. There’s been less focus on one of the other key principals of bioethics – the principal of justice.”

“We’re trying to tell a story from collection to use, through this justice lens,” Professor Koch said of symposium’s agenda. The panelists and speakers for this year’s symposium bring a wealth of experience in research ethics, law enforcement, technology, and the law, which they will bring to bear on issues of distributive and procedural justice in genetics and genomics.

Rather than take the more limited view examining how individuals interact with genetic technologies, the purpose of the symposium is to zoom out and consider these implications as they affect entire populations. As genetic testing becomes more prevalent, how can we ensure that everyone who needs it has access to it? How do we make sure that research databases reflect the populations they will be used to understand?

Some of these questions arise before any data is collected or research conducted. As these new technologies have potentially large impact on patient decisionmaking, the process of setting research priorities benefits from robust, transparent debate. The first panel of the day discusses justice in the context of acquisition of genetic information in the formation of genetic databanks, and features legal scholars and bioethicists. Panelists will discuss the challenges and implications of striving for inclusion and representation in genetics research.

The morning also features a panel on justice issues related to informed consent and privacy in the use and control of genetic information. Panelists will discuss the implications to consumers of having their genetic information shared or sold between researchers, and what informed consent looks like in that context.

This year’s featured speaker is Sheila Jasanoff, JD, PhD, Pforzheimer Professor of Science and Technology Studies at Harvard Kennedy School of Government, where her work has focused on the intersection of science, technology and the law. A prolific scholar, Dr. Jasanoff has written about a range of topics including the limits of applied science in the courtroom, the blurry legal status of embryos across countries, and the risks of pushing the limits of genetic therapies without transparency and inclusive debate.

Whereas the morning focuses on the collection and control of genetic data, the afternoon focuses on the implications of some of its contemporary uses. The third panel of the day focuses on the use of genomics in the justice system. The panelists will explore the current applications for genomics in the justice system, along with potential new ones.

Narrowing the scope further, the final panel of the symposium focuses on the use of genealogical data to solve crimes. Emergent genealogical technologies have led to arrests in a number cold cases, most notably the Golden State Killer case. There, law enforcement tested DNA found at various crime scenes over the years against an open-source genealogical database set up by the Mormon church. Investigators were able to identify several of the suspects family members, eventually leading to a warrant and an arrest. The panel will discuss these tools and their implications, both to the criminal justice system and to broader society.

The symposium will be held on March 12^th, on the 10^th floor of the DePaul Center. CLE credit is available. Register here.