Published by the & Health Care Program (L&HCP) Fall 1999 School of Law. University of Maryland at Baltimore lAW & HEALTH CARE N E W S L E T T E R

Volume VII Number I

he Crisis From the Director n this issue of our Newsletter, we highlight some of the many ways in Health Jin which our faculty and students use their expertise in research, In this issue: lawyering and advocacy to make a Care difference in the "real world"- The Crisis in Health Care 1 whether it be providing technical City Health Commissioner to Karen Rothenberg Named assistance to legislators in drafting Speak on Why We Need Health Interim Dean 2 legislation, negotiating a settlement Care Reform in Maryland with the state Medicaid agency, or From the Classroom representing AIDS patients to obtain to the "Real World" .. . n November 11, 1999, Dr. necessary benefits. Through their Genetics Legislation Signed Peter Beilenson, President of work in our many specialty legal Into Law 3 the Maryland Citizens' Health O clinics-health care, representation AIDS, Ethics and the Law: Law Initiative Education Fund, Inc. of individuals with AIDS or disabili- Students Advocate for Clients (MCHIEF) will speak at the School of ties-or in the context of our health In a Complex Landscape 4 Law on MCHIEF's controversial but law practicums and externships, Welfare to Work: Student attention-getting proposal to initiate a students have numerous opportuni- Force State to Make Good on Medical single-payer-system for health care ties to use what they are learning in Assistance Promise 5 reimbursement in Maryland. Children and Health Law: Medicaid the classroom to affect the making of Beilenson, who is also Commissioner Benefits Guidelines Amended 6 public policy as well as representing of Health for Baltimore City, is one of 2000 By 2000 6 both institutional and individual the founders of the Initiative, a group Guardianship of the Person: An clients. In turn, these real world of public health advocates whose Alternative Resolution 7 experiences are brought back into the mission is to change the face of health Spotlight on Health Law Practicums S classroom to enrich student discus- care in Maryland. sions of legal theory and application. MCHIEF endorses a comprehensive School News .. . Other newsworthy events featured health care system which would UM Law School Breaks Ground for are the appointment of L&HCP guarantee quality health care for all New Building 11 Director Karen Rothenberg as Interim Marylanders. This system, "Health Dean of our law school (p. 2) and the Care for All," would be administered law school's recent move to tempo- L&HCP Faculty Notes 12 and financed through an independent rary quarters as we begin construc- In The Health Law Clinic 13 agency governed by health profession- tion of a new facility on the original Student Health Law Organization News 14 als and consumers. law school site. (p. I1) Making Health Care Decisions for In late August of this year, As always, we hope you enjoy our Others 15 Beilenson's group conducted a state- newsletter and that your Fall 1999 Wright vs. Hopkins: How Does This wide poll which indicated that Mary- semester, like ours, is proving to be Decision Affect Ethics Committees 15 landers were greatly dissatisfied with both exciting and challenging. Diane Hoffmann Cont. on page 16 Acting Director 0/ ©1999, University of Maryland School of Law Law & Health Care Newsletter 1 Law & Health Care Karen Rothenberg Newsletter Named Interim Dean is published by the Law & Health Care Program at the n August 16, 1999, Univer- School of Law sity of Maryland President University of Maryland O David J. Ramsay appointed at Baltimore L&HCP Director Karen Rothenberg 515 West Lombard Street Interim Dean of the Law School. She Baltimore, MD 21201 will serve as Interim Dean until a

Karen Rothenberg, JD, MPA permanent successor is found for Interim Dean, University of Maryland former Dean Donald Gifford, who School of Law resigned in July. Rothenberg has been a at L&HCP Faculty: the law school for the last sixteen Diane E. Hoffmann, JD, MS years. She founded the nationally Acting Director, L&HC:P and Associate Dean, ranked Law & Health Care Program University of Maryland in 1987 and has taught many of the School of Law Program's courses. She is also a past recipient of the Joseph Healey Health Interim Dean Karen Rothenberg Joan O'Sullivan, JD Law Teacher's Award from the Acting Associate Director, L&HCP American Society of Law, Medicine and expertise have earned her the There are a number of law school and Ethics, serves on the American respect of colleagues and students. She faculty who contribute to the Bar Association's Coordinating Group will be an asset to the law school during diversity of the Law & Health Care Program on Bioethics and the Law, and the the University's search for a new dean." through their teaching and scholarship. We Advisory Council to the National This change in the school's adminis- share some of these faculty's selected publica- Institute of Child Health and Human tration comes at a critical time as the law dons, presentations, and appointments in Development. school moves forward on ambitious Faculty .\bres: In appointing Rothenberg, Ramsay plans for a new facility (see article on Taunya Lovell Banks, JD Richard Boldt, JD said, "Professor Rothenberg fre- page 11.) Karen Czapanskiy, JD quently contributes to today's national During Rothenberg's tenure as Interim Deborah S. Hellman, MA, JD dialogue about health policy and has Dean, Professor Diane Hoffmann will Stanley S. Herr, JD, DPhil testified before Congress on the serve as Acting Director of the Law & David A. Hyman, MD, JD of cloning and on discrimi- Health Care Program and Professor Joan Susan Leviton, JD nation and privacy issues related to O'Sullivan will serve as Acting Associate Rena L Steinzor, JD genetic information. Her scholarship Director. Deborah J. Weimer, JD, LLM Roger C. Wolf, JD

Adjunct Faculty (1999-2000) Coming ... Ellen Callegary, JD, Callegary & Steedman James Doherty, Jr.. JD, "Is There a Pink Slip in Your Genes?" Pecore & Doherty, LLC Lewis Noonberg, JD, The Stuart Rome Lecture Piper and Marbury Frank Palumbo, PhD, JD, University of to be held at the Maryland School of Pharmacy Carol Rubin, JD, Fisher & Winner University of Maryland School of Law

Program Coordinator/Editor: presented by Nancy Zibron, MA Paul Miller Administrative Assistant: Chairman of the Victoria Ndiaye U.S. Equal Opportunity Commission Comments and letters should be forwarded to the above address. Sponsored by the Law & Health Care Program - Date TBA

2 Law & Health Care Newsletter From the Classroom to the "Real World" Genetics Legislation Signed Into Law

nder the leadership of Maryland Delegate UMichael J. Finifter and Senator Jenny Forehand, a group of state legislators introduced the Genetic Information Nondiscrimina- tion in Health Insurance Act into the Maryland House and Senate earlier this year. The initiative was spawned by a desire to improve the current state of Maryland law that addresses genetic privacy and discrimination. These legislators sought the help of Interim Dean Karen Rothenberg who over the last several years has devoted much of her time and expertise to research and Interim Dean Karen Rothenberg and Abby Brandel, former Legislative Officer in the Office of the advocacy on this topic. Governor of Maryland and a recent Program graduate (standing, fifth and sixth from left), attend the signing of the Genetic Information Nondiscrimination in Health Insurance legislation. Rothenberg provided the legislators with guidance and technical assistance in drafting the bill which expands current the passage of this new law, insurance received from the legislature. Maryland legal prohibitions against genetic carriers will not be able to release is now one of the only states in the discrimination in the issuance and certain genetic information to any nation that provides both privacy and application of health insurance. person who is not an employee of the antidiscrimination protection against the Specifically, the new legislation carrier or a participating health care use of all genetic information, whether prohibits an insurer, nonprofit health provider without the written authoriza- or not it was generated from a genetic service plan or HMO from using tion of the individual from whom the test. However, we still need to genetic information to reject, limit or in formation was obtained. What's continue to strive to pass federal affect the terms of a health insurance more, disclosure of genetic information comprehensive legislation to protect all policy. The legislation also prohibits a can only be made for the purpose of citizens." carrier from using genetic information providing medical care or for conduct- to determine whether or not to issue or ing federally-approved research. renew health insurance coverage. Authorization is required for each Current law prohibits a carrier from disclosure and the authorization must using genetic information to affect the describe both those parties making the terms of a health insurance policy and disclosure and those parties to whom prohibits requesting or requiring a the disclosure is made. genetic test to determine whether or Rothenberg says, "This legislation is not to issue or renew a policy. With significant in the level of support it

Law & Health Care Newsletter 3 From the Classroom to the "Real World" AIDS, Ethics and the Law: Law Students Advocate for Clients in a Complex Landscape

he adoptive parent of an eight clinics at University year old boy with AIDS takes of Maryland Hospital, Ttime off from her job to care for and they also make her son. Her employer, a national home or hospital clothing store, fires her. Now, in visits to clients who addition to caring for an ill child, she are too ill to come to is also deprived of her source of our offices." income. The cases handled in the AIDS Clinic Each semester law professor are diverse, ranging Deborah Weimer, Director of the AIDS from employment Legal Clinic, oversees a group of cases under the student attorneys representing clients Family Medical Leave like the one above. These student Act and the Ameri- attorneys help low-income, HIV+ cans with Disabilities clients deal with the legal ramifications From left: Erin Meyers (May 1999) and Lisa Voso (3D) Act (ADA), to social of their illness. at work in the AIDS Clinic (file photo). security disability Fortunately, one of these students benefits appeals, and was able to intervene on behalf of the Parents and children with HIV disease family law cases involving Children In parent of the child with AIDS. The are populations in particular need of Need of Assistance (C1NA), guardian- parent was paid $8,500 in lost wages. legal representation. They face ship, custody and adoption. In addition, in order to comply with the increasing challenges in qualifying for Like the case of the adoptive parent Family Medical Leave Act (FMLA), the SST or disability benefits, are vulnerable of the child with AIDS, there are a store for which the parent worked to discrimination in employment, number of cases that stand out in both agreed to educate its managers about school, insurance and health care, and the students' and the ' the right of employees to take intermit- often require assistance with custody memories. tent leave to care for seriously ill family or guardianship to insure continuity of One such case involved a mother members. The employer also agreed to care for children whose parents or who was reported to Protective modify its employee manual and, even custodial grandparent., are too ill to Services by her child's physician when more significantly, employees of this care for them. she repeatedly failed to get her eight store (many of whom are the working Twenty student attorneys partici- year-old daughter to take medication poor, making minimum wage or pated in the AIDS Legal Clinic during the physician had prescribed for the slightly more) both in Maryland and the year-long period ending June 30, child's HIV illness. throughout the country will be edu- 1999. The students handled over 100 After meeting the parent, it soon cated about their rights to take such cases, seeing clients in the clinical law became evident that this was not leave under the FMLA. office, as well as at off-site locations. simply a case of an irresponsible or At the end of 1998, 18,430 people Weimer says, "Many HIV+ people, overburdened parent. The client had been diagnosed with AIDS in especially those with children, are proudly described how her HIV Maryland. It is estimated that there are overwhelmed by their illness and positive daughter had just received an ten times as many people-or 184,000 poverty and unlikely to make it to a law award for perfect attendance for the people who are HIV+ but not yet office. Our student attorneys meet diagnosed with an HIV-related illness. new clients at the outpatient HIV

Cont. on page 10 4 Law & Health Care Newsletter From the Classroom to the "Real World"

Welfare to Work: Student Lawyers Force State to Make Good on Medical Assistance Promise

awyers and students working tance termina- Department of together in the Family tions and Health and Mental LInvestment Program (FIP) Legal discuss Hygiene tempo- Clinic have finally obtained the medical corrective rarily restored assistance promised under welfare action. Medical Assis- reform to families that left welfare to Czapanskiy tance benefits to take jobs. Many of these families were says, "Continu- some of the dropped from Medical Assistance as ing health affected families. they moved from welfare to work. The insurance In October, these FIP clinic threatened to sue the state coverage for families received for inappropriately dropping these these families is temporary families from Medical Assistance, and critical to the Medical Assis- as a result of an agreement reached last success of tance cards that Spring, the state is now providing Maryland's can be used to many of these families with temporary welfare reform. obtain medical medical assistance worth up to $22 These actions care during the million. are important months of The Medical Assistance issue was first steps in Professor Karen Czapanskiy November and raised by lawyers and students in- fixing how December. The volved in a joint project of the Home- Maryland helps families make the State will also be contacting thousands less Persons Representation Project transition from welfare to work." of families to offer them the opportu- and students in a Legal Theory and Between January 1997, when nity to use an abbreviated form to Practice course taught by law school welfare reform was implemented reapply for Medical Assistance. In professors Karen Czapanskiy and nationally, and May 1999, when the addition, the State has agreed to take Marla Hollandsworth. The FIP Legal State changed its procedures to make pro-active measures to correct this Clinic provides low-income families sure families got the Medical Assis- problem. with free legal services obtaining tance to which they were entitled, "Everyone in Maryland should be government assistance and thousands of families were denied proud of their state's law students. It transitioning off welfare. access to Medical Assistance after was the students' tireless work The Clinic first alerted the State to leaving or being denied welfare. representing these families that forced widespread denial and termination of As many as 140,000 children and the State to acknowledge it had a Medical Assistance in December 1998. adults may have lost access to Medical Medicaid crisis on its hands," said From January through April 1999, law Assistance during the past three years. Czapanskiy. students addressed the problem by Maryland has become one of the first fighting to restore individual clients' states in the country to address this Medical Assistance while researching widespread health-care crisis among the issues and preparing a class action former welfare recipients. lawsuit. Only after the FIP Legal Recognizing that the State improperly Clinic threatened legal action did the terminated thousands of Maryland State stop the illegal Medical Assis- families' health benefits, the Maryland

Law & Health Care Newsletter 5 From the Classroom to the "Real World" Children and Health Law: Medicaid Benefits Guidelines Amended

finical law professor Susan are more certain to Leviton and former Law & get the help that they need. C Health Care Program student As part of her stint in the Anne Langley (May 1999) worked for Clinical Law Program, Langley two years trying to assure that chroni- worked with Leviton to try to cally disabled children who are receiv- resolve this issue through the ing Medicaid get a fair deal when it Maryland Legislature. The fact comes to health care benefits. The that the Department of Health struggle, though long and complicated, and Mental Hygiene agreed to was well worth the effort. revise the guidelines effective Leviton says, "Effective November this year was, in large part, the 1, 1999, the Maryland Department of result of legislative pressure and Health and Mental Hygiene revised the was, according to Leviton, ".. . Medicaid Managed Care Program a significant victory." Benefits guidelines allowing physical Professor Susan Leviton therapy, speech therapy, occupational therapy, and audiology services to be provided on a fee-for-service basis for these children." 2000 By 2000 A past legal aid lobbyist to the Third Year Law Student Ruben Chavez Works to Garner Support for Maryland General Assembly, Leviton founded Advocates for Children and the Maryland Citizens' Health Initiative Education Fund, Inc. (MCHIEF) Youth, a statewide child advocacy group. She also writes extensively on &HCP student Ruben Chavez Vincent DeMarco, authored the children's issues and represents (3D) has joined The Maryland Declaration. children in special education proceed- LCitizens' Health Initiative The law student found out about the ings and the juvenile court. Education Fund, Inc. to assist the Maryland Health Initiative while he was Langley earned twelve credits for her organization in its effort to sign up working at a placement at Advocates work in Leviton's Juvenile Law Clinic, 2000 supporters by the year 2000. for Children and Youth, a statewide which satisfied the experiential require- (The Initiative hopes to establish a child advocacy group, on CHIP issues ment of the L&HCP's Concentration in single-payer health system in Mary- (the Childrens' Health Insurance Health Law. land-see article on page 1.) Program). The placement was part of "The problem with the Medicaid Chavez, who is part of the group's Associate Dean Diane Hoffmann's and Managed Care Benefits Program prior Mobilization subcommittee, says the Professor Joan O'Sullivan's Health to this change, was that children were Initiative is attempting to enlist the Care for the Poor seminar. The not getting the therapy they needed," support of special interest groups like placement's health director invited him Leviton explains. the AARP, as well as other political, to attend a meeting and Chavez has "A chronically disabled child who has religious, educational and civic organi- been a supporter ever since. difficulty learning to speak needs to get zations. They hope to gain enough "Right now, the Initiative's main speech therapy at an early age and that support to make their Declaration of concern is to educate both individuals therapy has to be continuous for it to Health Care Independence: "Health Care and organizations about our mission," be effective." For All," a political issue during the Chavez says, "and to teach people how Now that the benefits are provided next gubernatorial election in Maryland. to talk about what we are trying to do on a fee-for-service basis the children Chavez' subcommittee, which is headed so that they can tell others." whose health care is affected by these by MCHIEF's Executive Director,

6 Law & Health Care Newsletter From the Classroom to the "Real World" Guardianship of the Person: An Alternative Resolution

n keeping with the legal trend to hearing request, call together a panel, resolve disputes outside of the set a hearing date no later than two Icourt, Professor Joan O'Sullivan weeks from the date of the request, and health law student, Kevin Gerold, prepare a summary of the case and are working with the Maryland Alterna- handle other administrative matters. tive Dispute Resolution Commission to The patient would have the same due address the problem of obtaining process rights as a person in a guard- medical treatment for incompetent ianship proceeding. The Maryland patients who have no surrogate. proposal would apply to patients in all When an incompetent patient needs living situations, such as nursing major medical attention, his/her health homes, acute care hospitals, assisted care provider has two choices: s/he living facilities and in private homes. can look for a surrogate decision The panel would meet at a local maker, or s/he can seek guardianship agency office or at the institution of the person. The first solution is used requesting the treatment to hold a most often, but at times the patient has Professor Joan O'Sullivan hearing. The panel will issue a decision no family member or friend to act for about the proposed treatment at the the patient. In that case, someone must been revived as a form of alternative conclusion of the hearing, or within petition the Circuit Court to appoint a dispute resolution. three days of the hearing. The panel guardian to consent to or refuse care. The Task Force proposes to address would not have the authority to make The guardianship process is expen- the problem of medical treatment for decisions about treatment for a mental sive, time consuming and often incompetent patients who have no disorder, reproductive rights, or life complicated. The cost includes fees for surrogate by establishing an alternative sustaining treatment. two attorneys, as well as court costs, to guardianship-a panel of volunteers The decision of the panel would be service and filing fees. For the patient who would act as surrogate decision appealable to the Circuit Court. There with no family or friend, there may be makers for the patient. will no charge to the patient for the no one willing to petition the court. For The group is proposing a pilot hearing, and perhaps only a small fee to those in nursing homes, group homes project to "test out" the idea. The the petitioner to cover administrative and institutions, the hurdles to filing for design of the pilot project is based on a costs. guardianship result in the patient being similar program which has operated in A typical case might be a request treated without informed consent, or New York for ten years. Under this from a nursing home administrator for the patient not being treated until her proposal, panels composed of three a decision about performing a biopsy condition becomes an emergency and volunteers will meet to consider the of a suspicious lump discovered in the she is sent to the hospital emergency health care provider's request for breast of an incompetent resident. The department where she can be treated medical treatment and to provide or panel would consider whether to without consent. refuse consent to the treatment. The authorize performance of the biopsy as Several years ago, a subcommittee of panel will be drawn from a pool of well as whether to authorize follow up the Maryland Department of Aging volunteers, one third of whom will be surgery and post surgical care if the Guardianship Task Force concerned health care professionals, one third results of the biopsy indicate the need with the rights of the disabled, wrote a who will be attorneys and one third for further treatment. bill which would divert these decisions who will be advocates, friends or away from the court. The idea lan- relatives of the elderly or disabled. The guished for a number of years, but has program will employ a part time administrator, who will receive the Cont. on page 10

Law & Health Care Newsletter 7 From the Classroom to the "Real World" .. .

The Law & Health Care Program 's Sight on . • • Health Law Practicum Program pro- vides an opportunity for students HEALTH LAW PRACTICUMS AND interested in health law to obtain credit by working for organizations EXTERNSHIPS: Office of Senator and government agencies dealing Tom Harkin, Capitol Hill with health care issues. Students spend 10 to 20 hours at their place- by Hilary Martinson, 3D ment and additional hours through- out the semester in the classroom fter spending my participating in The Health Law summers working 'n a small plaintiff's Practice Workshop. Placements have law firm and at the Mary- included the American Bar Associa- land office of the American tion; American Nurses Association; Civil Liberties Union, 1 was FDA; Johns Hopkins Hospital, Office excited at the prospect of of the General Counsel; Med-Chi of working in a legislative Maryland; Medlantic Healthcare setting. I was interested Group; National Health Law Pro- both in disability issues and gram; NIH; U.S. Senate Special Com- in exploring a less tradi- mittee on Aging; University of Mary- tional legal setting; the health law practicum in land Medical System, Office of the Senator Tom Harkin's General Counsel; University Physi- office is a wonderful cians, and the Office of the Attorney match. General, General Litigation Unit and I spend 15 hours a week Medicaid Fraud Unit. working with the Senator's The Program has also offered seven counsel on disability policy. full semester externships-The Na- Because I started my tional Health Law Program placement while Congress externship in Washington, D.C.; The was recessed, I was able to Hilary Martinson become acclimated to this University of Maryland externship, new environment before things the Senate Legislative Counsel on the located in University Hospital 's Gen- became more hectic. Developmental Disabilities Act reautho- eral Counsel's office; Blue Cross/Blue Working in a U.S. Senator's office rization. I plan to attend the hearing on Shield of Maryland (BCBSM), The is hectic-both fast-paced and the Developmental Disabilities Act, and Federal Trade Commission, The exciting. Everyone is extremely to spend a day on the Senate floor Health Care Access and Cost Commis- listening to debate on a health care or busy. Each staff member has a sion; the NIH General Counsel's Of- television broadcasting continual live disability issue. fice; and the Women's Legal Defense Senate coverage. The Congressional My practicum duties also include Fund in Washington, D.C. Record, which includes the entire research-on the Individuals with transcript of the previous day's Disabilities in Education Act (IDEA), testimony in both the Senate and the Americans with Disabilities Act and methods of operating differ House, is delivered each morning. I (ADA) and shortly, I will be research- from a traditional law firm. never lose sight of the fact that I am ing personal assisted services for long I feel fortunate to have an opportu- working in a senator's office. term care for individuals with disabili- nity to actually participate in the federal I have been able to attend meetings ties. legislative process through the Law & related to disability and other legisla- It is interesting for me to see what a Health Care Program's practicum tive issues, including a meeting with legislative does, and how the experience.

8 Law & Health Care Newsletter From the Classroom to the "Real World"

Spotlight cont.

HEALTH LAW PRACTICUMS AND

his semester, as part of the EXTERNSHIPS: Office of L&HCP's Health Law Practice Congressman Benjamin Cardin T Workshop class, I have had the chance to observe Congress in action. by Margaret Webster, 3D Health care reform is once more a top priority for Congress. Managed care has brought tremendous change to the health care industry, and the and opposing the legislation. 106th Congress spent the second My job in analyzing the week in October heatedly debating the Quality Health Care Coalition issue. A sweeping new bill was Act was to look at how passed by the House providing a consumers, in particular, broad array of protection for patients. would be affected, and also In addition to expanding the right to to consider how the bill sue in state court, the bill established would affect the health care patient safeguards such as access to industry in Maryland-would emergency care and to medical it affect goods and services, specialists. would it provide better The AMA and 300 other health and efficiencies and cost contain- consumer groups supported the ment than the current system Norwood-Dingell bill. This bill or better integration of health coincided with the recent report by services? the Census Bureau stating that over Ultimately, the legislature 43 million Americans do not have must provide equitable health insurance coverage. These solutions for health care health care policy concerns provide a reform. The costs, needs, perfect example of the types of issues and rights of consumers are a student might encounter when part of a delicate balancing working with a legislative staff office Margaret Webster act for Congress. These for the House of Representatives. issues often have far-reaching effects My personal experience working in I have learned that one of the first and can even influence next year's the Office of The Honorable Benjamin steps when conducting research on a presidential and congressional elec- Cardin (3rd District, MD), has given proposed bill is to log onto http:// tions. me the opportunity to conduct research thomas.loc.gov/, the comprehensive Before coming to law school I on a health care reform bill presently official web site for Congress. This worked as a nurse for 13 years. While before Congress. My mentor, a web site is both informative and a I felt I had a good understanding of the legislative assistant to the Congress- valuable tool. I knew that as part of the health care system from my prior man, is the resident health policy expert research, I needed to be aware of the experience, my stint on Capitol Hill has and is an invaluable resource for me as bill's current sponsors, legislative offered me the opportunity to see the I attempt to understand the workings action, committee meetings and system from a myriad of other per- of Congress and the health policy testimony given in support or opposi- spectives and to understand why issues at stake. tion of the proposed legislation. reform is such a difficult and conten- My mentor helped me to identify the I have also learned that when tious matter. legislative agenda and goals of the analyzing a piece of proposed legisla- congressional staff, so that when I tion for a Congressman it is important began my research, I was better to be attentive to the "policy reasons" equipped to attain an end product that behind the bill as well as the constitu- would be useful to the staff. encies and interest groups supporting

Law & Health Care Newsletter 9 From the Classroom to the "Real World"

AIDS, Ethics and the Law detailing the FMLA violations that about legal reasoning and writing, the Cont. from page 4 occurred. In a session facilitated by an clinic gave her an excellent foundation EEOC mediator, the parties arrived at a in the practical skills necessary to be a semester. After meeting with a student settlement that included $6,000 in back lawyer. social worker over a period of months, wages for the client. Weinstein adds, "I feel fortunate to she and the social worker were able to Another student attorney took on the have had Professor Weimer as a identify the real barriers to compliance. case of an HIV+ mother of two young mentor. She encouraged growth in The client was in denial about her daughters. Despite the mother's those areas where we needed it the own illness as well as daughter 's. She diagnosis of HIV wasting syndrome, most. For that reason, I feel that my was not ready to administer the kidney disease and depression, this lawyering skills are at a far more complex drug regimen prescribed by woman was repeatedly denied social advanced level than they would have the physician for her daughter, and security disability benefits. The been if I had not had the AIDS clinic while the child appeared to be in good student attorney did an excellent job of experience." health, it was hard for her to accept translating the physician's diagnosis that such a regimen was necessary. into social security's evaluation scheme The AIDS Clinic's involvement in the Guardianship and the mother was awarded full Cont. from page 7 situation helped to give her a voice, and benefits including a $9,000 award for she and her daughter's physician were back benefits. The advantages of the program are able to reach a compromise on what With the advent of new and more that decisions would be made more medication would be used. The threat powerful drugs to treat HIV disease in quickly, for less expense, without of removing her child to foster care infants and young children, clinic court involvement, by a panel of was lifted, and as a result, the neglect students are seeing more cases alleging knowledgeable practitioners. The proceeding was terminated. medical neglect which raise complex person with disabilities would be more Just in the last few weeks AIDS ethical and legal questions. These cases comfortable in an informal setting, and clinic students successfully settled are being addressed in collaboration providers of services would not have another case under the FMLA. The with social workers and medical to hire an attorney to get permission to clinic had represented the client for professionals. treat a patient who is incompetent. The over a year, helping her maintain AIDS Clinic student, Jennifer disadvantages are the cost of adminis- employment with a large grocery store Schwartzott, 2D, is learning a lot about tering the program, and that some may after her employer began harassing her the FMLA and employment discrimina- use this system when a guardian would about taking too much sick time. The tion in general, particularly as it applies be more appropriate. harassment grew worse when she to people with HIV disease. The plan would benefit the patient, disclosed to them her HIV status, but "Interaction with clients not only the courts, and the state. Given the student attorneys convinced the teaches us how to apply the law to growing population of elderly citizens, employer that the FMLA covered her case-specific facts, but it also gives us it is important to streamline the health situation. The store could not fire her some practice in sensitivity. My care decision making process now. for medically necessary absences. The clients' main concerns may not be employer finally found a pretext to fire about the case, but about their kids or her, and student attorneys assisted the their illness," Schwartzott says. client in filing a discrimination com- Dana Weinstein, a May 1999 gradu- plaint with the Maryland Human ate who worked on the medical neglect Relations Commission. A demand case mentioned earlier, says that while letter was also sent to the company her law school courses taught her

10 Law & Health Care Newsletter School News. . - UM Law School Breaks Ground for New Building

Facility Blends a Stately Gothic Exterior with State-of-the-Art Technology

his fall, the law school broke ground for a new five-story T facility to be constructed on the site of Lane Hall, the existing school building located at Paca and Baltimore Streets. This site is part of UM's Baltimore city campus which is also home to the schools of medicine, dentistry, nursing, pharmacy and social work, as well as University Hospital. The law school's prime location on UM's "campus of the professions" enhances the interdisciplinary emphasis placed on many of its courses and activities. In June, faculty and staff of both the school and the Thurgood Marshall Law Library were temporarily relocated to a building a few blocks from the Lane Hall site. The school will operate in its Architectural rendering of the law school's new building. temporary quarters until the new building is completed in Spring 2002. Lane Hall was built in 1965, and a to provide the best legal education for exterior. The law school, the library, wing was added in 1980 to house the the 21st century," says Interim Dean and Westminster Hall all border a treed Thurgood Marshall Law Library. Karen Rothenberg. central courtyard used-in both the Despite a number of renovations, the She adds, "It will be conducive to current building and the new building law school's function has outgrown the innovative learning and will promote a as a student gathering area. 34-year old two-story office building sense of community for the students, The new 240,000 square foot and its attached four-story classroom faculty and staff." building, designed by the architectural and clinic "L." Additionally, the Lane Hall and the law library occupy firms Hartman-Cox of Washington, necessity of keeping up with 21st about half of a city block on the D.C. and RCG, Inc., of Baltimore, will century technological learning innova- northeast edge of the University provide nearly twice the square footage tions made construction of a new campus. Westminster Hall, a church of the existing building. The facility building the most cost effective choice. built in the gothic style of architecture will provide for additional space and Plans for the new facility blend a in 1852, and a burial ground that is the access to the latest technological stately Gothic exterior with the latest final resting place of Edgar Allen Poe, learning enhancements for the Law & high-tech instructional aids-enough occupy the second half of the block. Health Care Program's faculty, staff electrical connections and dataports to Westminster Hall has been renovated and students, as well as the Student accommodate student laptop hook-ups, and is currently used as meeting space Health Law Organization and the video equipment, and increasingly for both University and outside events. Journal of Health Care Law & Policy. popular distance learning tools. Plans for the law library call for it to "We have designed a building that be renovated to blend with the law will allow us to shape our curriculum school's brick and stone gothic

Law & Health Care Newsletter 11 L&HCP Faculty Notes . .

Awards/Grants: PROFESSOR KAREN ROTHENBERG "Conversion of Nonprofits," and Mayday Foundation, A 2nd Mayday "Managed Care Regulation, " Annual Selected Publications: Scholar Award to conduct research on Health Law Teachers Conference, "Being Human": Cloning and the institutional barriers to adequate pain American Society of Law, Medicine & Challenges for Public Policy, 27 management (1999) Ethics, St. Louis University, St. Louis, Hofstra L. Rev. 639 (1999) MO (1999) Appointments: "Privacy in Genetics Research, " (co- Associate Dean for Faculty and Appointment: authored with B.P. Fuller, et al), 285 External Affairs (1999) Visiting Professor, University of Texas Science 1359 (1999) School of Law (Fall, 1999) Acting Director, Law & Health Care "The Social Implications of the Use of Program (1999) Stored Tissue Samples: Context, PROFESSOR SUSAN LEVITON Control, And Community" (edited by C. Award: PROFESSOR Long), Genetic Testing and the Use of Child Advocacy Award, Maryland Information 84 (1999) KAREN CZAPANSKIY Interdisciplinary Counsel for Children Selected Presentations: and Adolescents (1999) Selected Presentations: "Getting Medicaid to Former Welfare "Medical Advocacy.... My Life, My Recipients in Maryland," The National ASSISTANT PROFESSOR Health Law Forum, Washington, DC Privacy, My Dignity," Hadassah's 85'" JOAN O 'SULLIVAN (1999) National Convention, Washington, DC Publication: (1999) "Adult Guardianship Bench Book" (with PROFESSOR Andrea Imredy Saah), Judicial Institute "Violence Against Women & HIV STANLEY S. HERR of Maryland, Baltimore, MD (1999) Diagnosis: Testing Decisions and Publication: Serostatus Disclosure, " CDC Workshop "Special Education Law and Children Selected Presentations: Conference on Violence & Reproduc- with Reading and Other Disabilities," "Alternatives to Guardianship," Judicial tive Health, Atlanta, GA (1999) 28 J. of Law and Education 337-389 Institute of Maryland, Annapolis, MD (1999) (1999) Appointment: American Bar Association, Health Law Selected Presentations: "Adult Guardianship-when Is it Section Liaison to the Coordinating "Legal Protections for People with Necessary?, " Kennedy Krieger Insti- Group on Bioethics and the Law Disabilities in the U.S. and Israel," tute, Baltimore, MD (1999) (1999-) Trump Institute, Beit Issie Shapiro, Ra'anna, Israel (1999) "Informed Consent and People with PROFESSOR Mental Retardation," and Olmstead V. DIANE HOFFMANN "Vocational Rehabilitation and Human Rights," National Association of LC, American Association on Mental Selected Presentations: Rehabilitation, Hertziliyah, Israel (1999) Retardation 123`d Annual Meeting, New "Controversial Issues in Biomedical Orleans, LA (1999) Research: Regulating Research with "The New Three Rs: Risks, Rights, Individuals Lacking Decision-making and Remedies for Older People with "Key Legal Issues in the Cognitively Capacity," Annual Health Law Teachers Developmental Disabilities, " Interna- Challenged," Symposium on Cognitive Conference, St. Louis University tional Conference on Down Syndrome, Functioning in Adulthood: Assessing School of Law, St. Louis, MO (1999) Jerusalem (1999) Challenges and Enhancing Resources, Geriatric Research, Education and "Maryland's Ethics Committee Legisla- PROFESSOR DAVID A. HYMAN Clinical Center, Baltimore, MD (1999) tion: A Leading Edge Model or a Step Selected Presentations: into the Abyss?" American Society for "Regulating Managed Care: What's "Consent and People with Mental Bioethics and Humanities Annual Wrong With A Patient Bill Of Rights," Retardation," American Association on Meeting, Phila. PA (1999) University of Texas School of Law Mental Retardation Training Institute, Faculty Colloquium (1999) Arlington, VA and Chicago, ILL (1999)

12 Law & Health Care Newsletter CLINICIN THE HEALTH LAW The law school offers, as part of its husbands who will not pay the wife's regular curriculum, a clinical law nursing home bill, keeping her income program in which faculty members who by Joan O'Sullivan, JD for himself so that the nursing home are practicing attorneys supervise law resident is at risk of an involuntary students in the representation of actual discharge. There are elderly clients clients. For those students with a Our clients often suffer from life who have not heard from or seen their general interest in health law, the threatening disabilities, and are fre- children for many years, and who clinic represents clients in cases quently young and desperate. Clients are depend on the kindness of a next door involving health care for children, denied Medicaid benefits so that they neighbor to get by. Some young legal issues of the handicapped, mental are unable to purchase drugs on which parents struggle to raise their children illness, AIDS and the elderly. their lives depend. Others contact us to alone when the other parent is addicted plan for their children's futures because to drugs or alcohol. Parents abandon they fear they will not live to see them children to strangers when they cannot he practice of poverty law is a to adulthood. When the client and the kick an addiction. difficult business. In the Health student are in the same life stage, these For many students in the clinic, these T and Elder Law Clinic, we cases can be especially difficult for stories are eye-opening experiences. To represent those who have no money to student attorneys who have been students fresh from college, who have hire a lawyer, and who, without our successful in everything they have always been supported in all that they representation, would go without an done, who feel they have their whole do, it seems impossible that people can attorney. In the first semester of lives ahead of them, and who see only treat each other in this fashion. One practice, one of the most difficult tasks good things in their futures. common impulse is for the student to for student attorneys is to come to Equally difficult for students who feel that she or he must fix all the terms with the concept that life is not come from loving families are the cases problems of the client's life, that they fair. in which families exemplify man's must help their client in ways not We see a variety of clients, referred inhumanity to man. We see clients related to the practice of law. Students from various social and legal agencies. whose children turn against their may spend long hours on the phone This year, one student's first client parents, or who cause elderly parents counseling the client about everything was a 26 year old man with a rare financial risk and hardship. In one early under the sun. Students may think they degenerative disease who had been case, a daughter's boyfriend had used should give the client a ride to the denied SSI disability benefits. This man her phone card to run up large bills. Our doctor for a medical exam, or stop by struggled against his illness and was client, an elderly man living on a fixed the store to get groceries on the way to trying his best to raise his 3 year old income, was responsible for the bills see the client. Some are drawn in by daughter with the help of his parents. when his daughter stopped paying for lonely people who just want someone When we met the client for the first her boyfriend's extravagance. The to talk to, and the entrance into their time the contrast between the client student negotiated with the credit lives of an intelligent, sensitive law and the student attorney, who are company and arranged a payment plan student who wants to help them is a about the same age, was startling. The for her client to stave off legal action. A wonderful event. client had trouble walking, was unable money judgment against him would We talk in class about the emotions to sit or stand for any length of time, have put his small house in jeopardy. associated with the practice of poverty and was in constant pain. The student The client is now slowly saving the law. We discuss ways to inure oneself handling the case is a bright, focused, funds to pay for his daughter's bill. The against feeling that we must rescue our fit and healthy former lacrosse player student, from a close family in which clients from all of their hardships. We for an Ivy League school. No discus- everyone supports each other, was discuss how their best tool is their sion was necessary to emphasize the astounded that the daughter would treat knowledge of the law, and how they unfairness of the hands life had dealt her father in that manner, and that the must use that tool to reach the client's these two people. The student handling father would not insist on the daughter goals in a particular case. We talk the case did an excellent job preparing making the payments herself. about ways to relieve the feelings that for a hearing on short notice, and her It is not unusual for our clients to client was awarded disability benefits. have sad family stories. There are Cont. on page 14 Law & Health Care Newsletter 13 • Participate in the Maryland Association of Health Care Executives' Student Health Law events including the annual State and Federal legislative update; and Organization News • Revise and update the SHLO constitution. he 1999-2000 officers of the voted to immediately pursue the In related news, three of SHLO's Student Health Law Organiza- following (among others): officers, Jayson Slotnik, Matt Parra tion (SHLO) are: • Begin planning for an expanded T and Lisa Hesse are participating in this Health Law Career Fair (currently year's National Health Law Moot Court President- Jayson Slotnik (2D) scheduled for the week of January 31, VP- Matthew Parra (3D) Competition at the University of 2000); Illinois. During the summer, Slotnik Secretary- Mindy Caplan (2D), Develop a "speaker of the month " Treasurer- Lisa Hesse (2D) • and Parra were selected to attend the series to bring health law attorneys and Publicity Chair- Sai Deepa Saggare (2D) University of Utah's School on Alco- Events Chair- Denise McNair (2D) policymakers to the law school to holism and other Drug Dependencies Outside Affairs Chair- Lucy Shum (1E) speak on a regular basis; for a one-week session. • Establish a plan to identify At their first general meeting, the students to participate in the National group discussed 17 potential goals and Health Law Moot Court Competition;

In The Clinic Cont. from page 13 HAVE YOU SUBSCRIBED sad and seemingly hopeless cases can TO THE produce, about talking to other clinic THEJOURNALOF HEALTH CARE LAW & POLICY students and to their supervisor, about living a balanced life, about not invest- UNIVERSITY OF MARYLAND SCHOOL OF LAW ing too much of themselves into their profession. Some students are better at NAME this than others; for some, the line ORGANIZATION between them and their clients is clear from the start. Others deeply feel the ADDRESS pain of their clients, feel they are not CITY, STATE, being treated fairly, and are angry at ZIP the opposing attorney for taking such a hard stance against a defenseless client. TELEPHONE FAX EMAIL But attorneys are not magicians, and students come to realize that all they No. Subscriptions @ $251year (includes 2 issues) can do is solve their clients' legal problems, and that their clients must go Individual Issues @ $13lissue: on as best they can. One student, Carla No. _"Conducting Medical Research on the Decisionally Impaired," 1998 Williams, while sympathizing with her No. "Testing and Telling?: Genetic Privacy, Family Disclosure and the clients and working hard to solve their Law," 1998 legal problems, said this, " What I like No. "Up in Smoke: Coming to Terms with the Legacy of Tobacco," about clinic is the knowledge that Winter 1998-99 No. "Caring for the Dying: Reexamining Our Approach," without us, our clients would have no SpringlSummer 1999 representation at all. I have seen how No. "Substance Abuse, Families and the Courts: Legal and Public my client struggled without an attorney Health Challenges," Winter 1999-2000 or knowledge of the law before she came to us. And I can see how I can Please make checks payable to: Journal of Health Care Law & Policy - UMB help her immensely when I represent her in court and make valid legal and mail to: The University of Maryland School of Law The Journal of Health Care Law & Policy arguments on her behalf That makes 515 West Lombard Street me feel good." Baltimore, MD 21201

14 Law & Health Care Newsletter Making Health Care Decisions for Others

Maryland Department of Aging and Health Law Faculty Collaborate on Brochure

rofessor Joan O'Sullivan, head Under Maryland law, when an answering many of the questions a of the L&HCP Health Law incapacitated patient has not named an surrogate might have about these two P Clinic, recently authored a agent in an advance directive, a relative legal terms. brochure being distributed by the or a friend-known as a surrogate- Professor O'Sullivan also discusses Maryland Department of Aging that can make medical decisions for that the liability of surrogates, nursing home instructs family and friends how to person. The brochure describes the admissions, and when it is necessary to make health care decisions for those order of priority for surrogates apply for guardianship. who are mentally or physically (spouse, adult child, parent, adult The Department of Aging provided incapacitated. The brochure pro- sibling, and close relative or friend) and the funding for production of the vides an easy-to-read guide for the provides a form for friends or more brochure and will distribute it through lay person that describes the types of distant relatives to sign when becoming their local offices. medical decisions that can be made a surrogate decision-maker. by others and the consequences of The standards that surrogates should becoming a decision-maker for adhere to-substitute judgement and another person. best interest-are covered in detail,

Wright vs. Hopkins: How Does This Decision Affect Maryland Hospitals?

A Discussion by the Maryland Healthcare Ethics Committee Network

n July 1994, 33 year-old Robert nine days later. Wright's mother filed the case. Brian Childs, PhD, of Shore Wright was admitted to Johns suit against Johns Hopkins hospital, Health Systems will look at how this IHopkins hospital for treatment of claiming that Hopkins breached a duty decision will affect healthcare organiza- symptoms related to end-stage AIDS. to Wright to withhold resuscitation. tions in Maryland. Eugene Grochowski, He had previously completed a living The trial Court ruled in favor of PhD, MD, FACP will speak to how it will and a durable power of attorney Hopkins on a motion for summary may affect physician practice. for health affairs. According to his judgment. On April 20, 1999 the Court L&HCP Acting Director Diane attorney, Wright had also made it of Appeals upheld the decision of the Hoffmann will moderate the discus- known to his health care providers on lower court citing insufficient evidence sion. Hoffmann was one of the several occasions that he did not want in the case of a legally binding directive founders of the MHECN and is a to be resuscitated if he had a cardiac to withhold CPR. member of its executive board. She is arrest. On November 18, 1999 the Maryland also editor of the Mid-Atlantic Ethics After receiving a blood transfusion Healthcare Ethics Committee Network Committee Newsletter, published by Wright was found unresponsive and (MHECN) will hold a dinner meeting the organization. without a pulse. Cardiopulmonary that will include a panel discussion of resuscitation (CPR) was initiated. Life- this case. Rick Kidwell, JD of The sustaining treatments were withdrawn Johns Hopkins Health Systems will the day after Wright's arrest. He died present the legal and medical facts of

Law & Health Care Newsletter 15 The Crisis in Health Care Cont. from page 1 current managed care plans. The The Declaration of Health Care situation is made worse by the fast- Independence authored by MCHIEF rising tide of uninsured in the State. promises quality health care for all, Eighty-eight percent of those freedom to choose doctors, a compre- surveyed believe the present system hensive, age-specific, quality health has major problems or is in crisis; over benefits package and providers who three-quarters agreed that everyone in practice according to professional Maryland is entitled to health coverage standards without undue interference and 87 percent said they would support from third-party decision makers. such coverage. Statistics show that Not everyone agrees with Beilenson. about 700,000 of Maryland's 5 million Private health insurers believe that the residents are without health insurance. problem can be addressed by looking Beilenson's group believes that the at accessibility and affordability issues. existing health care insurance system is John Colmers, Executive Director of "structurally flawed" and that it is Maryland's Health Care Commission increasingly bureaucratic and waste- (MHCC), a state health regulatory fully expensive. He says that the commission, will be responding to single-payer system envisioned by the Beilenson's remarks. Colmers has Initiative would use the billions of noted the significant barriers states dollars of profit and administrative face in instituting a single-payer plan. costs built into commercial health (Also see "2000 By 2000" article on insurance to provide coverage for the page 6.) uninsured.

LAW & HEALTH CARE PROGRAM SCHOOL OF LAW UNIVERSITY OF MARYLAND AT BALTIMORE 515 WEST LOMBARD STREET BALTIMORE, MD 21201

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