Criminality Should Not Affect COVID-19 Vaccination Access

Lauren Green

Advocates and scientists have urged vaccinating vulnerable individuals first when creating COVID-19 vaccine rollout plans.[1] According to a report from the National Commission on COVID-19 and Criminal Justice, prisons had almost four times more confirmed coronavirus cases and twice as many deaths as the general public.[2] One of the greatest challenges of reducing the spread of COVID-19 in detention centers is the inability of incarcerated people to maintain a safe social distance because of their confinement in small shared spaces.[3] This challenge is the same rationale for including long-term nursing home residents and workers in the first phase of distribution plans.[4] But regarding incarcerated individuals, some officials turned vaccine distribution into a criminality issue, arguing that incarcerated individuals do not deserve to receive the vaccine before those who have not committed crimes.[5]

This posturing, however, violates the states’ obligation to protect the health of those confined in their detention centers—being incarcerated or detained should not be synonymous with being left vulnerable to COVID-19. The Johns Hopkins Center for Health Security notes ‘[t]here is a legal and moral duty to provide healthcare to incarcerated individuals” because they are “both at high risk of infection, transmission, and poor outcomes because of comorbidities and poor healthcare access.”[6] Likewise, the American Medical Association “calls for all correctional and immigrant detention facilities . . . [to] be prioritized in receiving access to safe, effective COVID-19 vaccines in the initial phases of distribution.”[7]

Despite overwhelming scientific evidence that incarcerated populations should be prioritized, only five states—Connecticut, Delaware, Maryland, Nebraska and New Mexico—specifically include incarcerated people in the first phase of COVID-19 vaccine distribution plans.[8] North Carolina, meanwhile, includes incarcerated individuals who are older and have other health conditions in phase one or two of its plan.[9] However, most states’ plans are unclear and unspecific regarding whether incarcerated individuals are included in the “critical populations” receiving the vaccine in phase one—some states specifically exclude the incarcerated from plans.[10]

Even if one can get past the hypocrisy and immorality of subjecting incarcerated individuals to uncontrolled outbreaks of COVID-19 simply because of the commission of a crime, there is no scientific basis to do so. In fact, as discussed above, the science points to the contrary—the incarcerated should be amongst the first to be vaccinated. Incarcerated individuals and detention center personnel are under similar circumstances as long-term nursing home residents and health care workers.[11] Each population constitutes a congregate setting with the greatest infection risk and further transmission.[12] The only difference is that one of those populations has committed a crime (excluding the large portion of incarcerated individuals who have not been found guilty of a crime and are only confined because they cannot afford bail). The same rationale for prioritizing vaccinating long-term nursing home residents and health care workers should apply to incarcerated individuals on a moral ground, but also if this country is serious about curtailing the spread of COVID-19. In addition to inmates and detainees, COVID-19 poses a serious risk to detention center staff and visitors[13]—likely how the virus entered detention centers in the first place. When staff and visitors are exposed to the virus they act as transmitters between the detention center and their communities.[14] Thus, vaccination of the incarcerated is essential because COVID-19 cannot be curtailed if the incarcerated are not treated and vaccinated. Detainees will continue to transmit the virus to those who come though the detention center and perpetuate the high risk of transmission to communities outside of the detention center. Until the incarcerated are vaccinated, this transmission cycle will likely continue and COVID-19 will continue to spread through detention centers and nearby communities.

The inclusion of incarcerated individuals in early phases of vaccine distribution is critical. Not only does basing access to the vaccine on criminality violate the state’s duty to protect the health of people in its care, but excluding these individuals fails to slow the spread of the virus in the places where it is poised to spread the fastest. Unless the United States prioritizes vaccines for incarcerated people, COVID-19 will continue to spread through jails, prisons, and detention centers.[15] The staff who go in and out of the facilities will carry the deadly virus home to their communities, causing it to spread beyond jail and prison walls.[16] Deprioritizing incarcerated individuals solely because they committed a crime is a moral and public health crisis.

[1] Abby Goodnough and Jan Hoffman, Frontline Workers and People Over 74 Should Get Shots Next, C.D.C. Panel Says, NY Times (Dec. 20, 2020), https://www.nytimes.com/2020/12/20/health/covid-vaccine-first-elderly-workers.html.

[2] Kevin T. Schnepel, COVID-19 in U.S. State and Federal Prisons: December 2020 Update, Council on Criminal Justice 3 (2020).

[3] Id.

[4] Sarah Martinson, Virus Death Rates Make Prison Vaccine Plans A Justice Issue, Law360 (Dec. 20, 2020, 8:02 PM), https://www.law360.com/access-to-justice/articles/1336988/virus-death-rates-make-prison-vaccine-plans-a-justice-issue?nl_pk=d4d1b6d1-e90e-457b-b8c8-3714b4237afa&utm_source=newsletter&utm_medium=email&utm_campaign=access-to-justice&read_more=1.

[5] Id.

[6] Eric Toner et al., Interim Framework for COVID-19 Vaccine Allocation and Distribution in the United States, Johns Hopkins Center for Health Security 32 (2020).

[7] Press Release, American Medical Association, AMA policy calls for more COVID-19 prevention for congregate settings (Nov. 17, 2020) (on file with AMA press center) (emphasis added).

[8] Katie Rose Quandt, Incarcerated people and corrections staff should be prioritized in COVID-19 vaccination plans, Prison Policy Initiative (Dec. 8, 2020), https://www.prisonpolicy.org/blog/2020/12/08/covid-vaccination-plans/.

[9] Id.

[10] Id.

[11] Toner et al., at 20.

[12] Id.

[13] Martinson, supra note 4.

[14] Id.

[15] Nicholas Turner and Erica Bryant, States Should Prioritize Incarcerated People for COVID-19 Vaccine Distribution, Vera Institute of Justice (Dec. 3, 2020), https://www.vera.org/blog/states-should-prioritize-incarcerated-people-for-covid-19-vaccine-distribution.

[16] Id.

Transgender Women in Sports: Sexual Difference and Fairness

Seth Barry-Hinton

After the Supreme Court’s decision in Bostock v. Clayton County, which held that Title VII of the 1964 Civil Rights Act protects transgender people from workplace discrimination, the political battles and culture war around transgender people will likely shift onto new terrain. One of these battles is expected to center on the rights of transgender people to participate in sports in the gender category they identify with at the high school, collegiate, and professional levels. Recently, Representatives Tulsi Gabbard and Markwayne Mullin introduced a bill intended to prevent transgender women and girls from participating in women’s sports, using the language of Title IX.[1] This follows a transgender athlete’s lawsuit challenging an Idaho law barring trans girls from participation, and a group of cisgender athletes’ lawsuit against a Connecticut school district allowing trans girls to participate.[2] These battles are the expression of a deeper conflict that extends beyond civil rights or sports law, interrogating the meaning and significance of sexual difference.

This conflict has generated an interesting coalition of anti-transgender forces: conservative, evangelical Christians like the Heritage Foundation, who generally oppose expanding LBGTQ+ rights, have allied with radical feminist organizations, such as the Women’s Liberation Front (WoLF), who specifically view expanding transgender rights as a threat to the rights of cisgender women and girls.[3]

This coalition relies on two primary arguments. The first is an argument based on statutory intent. The meaning of “sex” in Title IX was intended to be a binary biological division and would not include people who live and are understood as a gender different from the one they were assigned at birth (or, for that matter, intersex people, who might identify as any particular gender but have a “mix” of primary and secondary sex characteristics). Gabbard, in her explanation of her proposed bill, relied heavily on this “original intent” claim. It is worth noting that the anti-trans coalition is clearly not relying on a plain-meaning argument in this view; one can easily contrast Justice Gorsuch’s interpretation of Title VII in Bostock, which focuses strictly on the practical use and definition of the word “sex.”

The other key argument is one from fairness, which was raised in both of the aforementioned lawsuits and in Gabbard and Mullin’s statements on their proposed legislation. The anti-trans coalition argues that being “assigned male at birth” (AMAB), or having a testosterone-based hormone profile, innately leads to athletic advantage.[4] “Females” are inherently weaker and slower than “males,” goes the claim. Allowing transfeminine athletes to participate alongside cisgender women would therefore rob the latter of their ability to excel in sports, on the assumption that the former would naturally rise to the top. An alternative version of this argument is that deceptive men will exploit self-identification policies to more easily accrue the trophies, accolades, and opportunities that sports achievements provide.

This language of fairness and equality might seem reasonable under “commonsense” assumptions about sexual difference, but it falls flat on both a theoretical and practical level. I assert that even without delving into gender theory, philosophy of science, and empirical evaluations of sexual difference—which has been done extensively elsewhere—this argument fails on its own merits.[5]

First, there are different kinds of fairness when it comes to sport. While a level playing field for publicly performing personal excellence might be one way to frame sport, this ignores many of the other possible functions of sport. Lindsay Hecox, the transgender plaintiff in the Idaho case, puts it well: “I, like all athletes, participate in sports for the same reasons as my peers: to challenge myself, to improve my fitness, to engage socially, and to be a part of a team.”[6] Thus, the individualist and instrumentalist view, that sport is a way of achieving professional success and public accolades, is only one possible view among many.

Furthermore, LGBTQ+ participation in sports is extremely low as a result of bullying and discrimination.[7] This demonstrates two things. First, it undermines the notion that being transgender is some privileged status undeserving of protection. Second, it illustrates that there may be other fairness concerns at play besides the recognition of cisgender women’s athletic achievement (assuming that these interests are actually conflictual, which they may not be). If the value of sports is very high, it may be that encouraging greater athletic participation by transgender and nonbinary people, as well as LGBTQ+ people more broadly, is worth whatever marginal costs might occur for specific cisgender individuals.

The anti-trans argument also appears weaker when considering the broader scope of current transgender rights debates. This same coalition of conservatives and anti-trans feminists seeks to deny minors access to gender-affirming medical care, such as puberty blockers, which would have a significant impact on athletic performance under the coalition’s own assumptions about the importance of sexual difference.[8] In short, anti-trans activists seek to ensure that transgender girls go through a testosterone-based puberty, and then limit their athletic possibilities and life choices on the grounds that they have undergone a testosterone-based puberty.

These sorts of inconsistencies, and the narrow view of fairness that the coalition prioritizes, make more sense when examined as panic rather than justified legal concern. In actuality, we have seen a trickle of high-profile cases where transgender athletes outcompeted cisgender ones, not a deluge. Transgender people occupy such a narrow and marginalized subset of the population that the apparent primary concerns – overall fairness and recognizing cis women’s athletic achievements – quickly fall flat.

[1] James Walker, Tulsi Gabbard Pushes Bill to Block Transgender Girls from Women’s Sports, Newsweek (Dec. 11, 2020, 7:57 AM), https://www.newsweek.com/tulsi-gabbard-bill-block-transgender-girls-women-sports-1554068.

[2] Gillian R. Brassil and Jeré Longman, Who Should Compete in Women’s Sports? There Are ‘Two Almost Irreconcilable Positions’, The New York Times (Aug. 19, 2020), https://www.nytimes.com/2020/08/18/sports/transgender-athletes-womens-sports-idaho.html.

[3] Heron Greenesmith, A Room of Their Own: How Anti-Trans Feminists Are Complicit in Christian Right Anti-Trans Advocacy, Political Research Associates (July 14, 2020), https://www.politicalresearch.org/2020/07/14/room-their-own.

[4] Brianna January and Brennan Suen, As Trans Americans Face Record Violence, Right-Wing Media Have Been Flooded with Stories Attacking Trans Athletes, Media Matters for America (Oct. 30, 2019, 10:07 AM), https://www.mediamatters.org/facebook/trans-americans-face-record-violence-right-wing-media-have-been-flooded-stories-attacking.

[5] Iris Marion Young, Throwing Like a Girl: A Phenomenology of Feminine Body Comportment Motility and Spatiality, 3 Human Studies 137 (1980); Katherine Kornei, This Scientist Is Racing to Discover How Gender Transitions Alter Athletic Performance, Including Her Own, Science (Jul. 25, 2018, 9:00 AM), https://www.sciencemag.org/news/2018/07/scientist-racing-discover-how-gender-transitions-alter-athletic-performance-including.

[6] Lindsay Hecox, Anti-Trans Laws are Preventing Trans Women from Playing on Women’s Sports Teams, Teen Vogue (May 14, 2020), https://www.teenvogue.com/story/anti-trans-law-women-sports.

[7] Research Brief: LGBTQ Youth Sports Participation, The Trevor Project (June 23, 2020), https://www.thetrevorproject.org/2020/06/23/research-brief-lgbtq-youth-sports-participation/.

[8] Katelyn Burns, Why Republicans Are Suddenly in a Rush to Regulate Every Trans Kid’s Puberty, Vox (Jan. 29, 2020, 5:57 PM), https://www.vox.com/identities/2020/1/29/21083505/transgender-kids-legislation-puberty-blockers.

Operation Warp Speed: America’s Desperate Search for a COVID-19 Vaccine

Grace Ketron

COVID-19 has created a new world filled with cloth masks and hand sanitizer. In March, conversations began revolving around the availability of hospital beds, respirators, and toilet paper. As researchers persistently combated this new strain of coronavirus, the world held its breath, waiting on the edge of its seat for the release of an accessible and affordable COVID-19 vaccine. Now, the moment the world has waited for is here: potential vaccines are ready for FDA approval, with a vaccine created by Pfizer leading the charge.

Typically, American vaccines take years or even decades to effectively develop. With COVID-19 cases still rising, the FDA has recognized the importance of developing a vaccine as quickly and safely as possible. The FDA Commissioner and the Director of the Center for Biologics Evaluation and Research explained, “We are committed to expediting the development of COVID-19 vaccines, but not at the expense of sound science and decision making. We will not jeopardize the public’s trust in our science-based, independent review of these or any vaccines. There’s too much at stake.”[1] To that end, federal agencies, like the CDC and HHS, created Operation Warp Speed“to produce and deliver 300 million doses of safe and effective” COVID-19 vaccines to Americans by January 2021.[2] In order for Pfizer’s vaccine to become widely accessible, three thingsmust happen in the next few weeks: (1) the FDA must grant an Emergency Use Authorization; (2) state governments must determine who will receive the vaccine first; and (3) the federal government must determine whether the public will pay for the vaccines.

First, the FDA must grant Emergency Use Authorization for Pfizer’s vaccine. The federal government began regulating American drugs in 1902 with the Biologics Control Act.[3] By establishing what later became the National Institutes of Health, the federal government gave itself the power to control how vaccines were created. In 1972, the FDA assumed responsibility for controlling vaccine testing in the United States. Today, Section 564 of the Federal Food, Drug, and Cosmetic Act (FD&C Act) grants the FDA Commissioner the authority to enact Emergency Use Authorizations that “allow unapproved medical products or unapproved uses of approved medical products” during national health emergencies.[4] In October, the FDA Commissioner determined that Emergency Use Authorizations should apply during the COVID-19 pandemic. Now, if and when the FDA Commissioner initiates an Emergency Use Authorization in the next few weeks, Pfizer can begin sending a small number of doses to hospitals and pharmacies around the country. The FDA plans to release its decision about Pfizer’s vaccine on December 10.[5]

Second, although approving vaccines during emergency health crises is an issue for federal agencies, state governments decide which Americans will receive these vaccinations first.[6] Pfizer estimated that it would make 50 million doses of its vaccine during 2020, but Pfizer has locations in both Michigan and Belgium.[7] Because Pfizer plans to split vaccines between countries, Americans likely have access to 25 million vaccine doses. While this initially sounds like quite an impressive number, one full vaccination requires two doses per person, so that leaves 12.5 million vaccines available for Americans during the remainder of 2020. To help states decide who to vaccinate first, the National Academies of Science, Engineering, and Medicine guides the Advisory Committee on Immunization Practices.[8]  In turn, the Advisory Committee speaks with the CDC, who then discusses options with state officials. Hospital workers and immunocompromised individuals will likely be the first to receive the COVID-19 vaccine.[9]

Third, the federal government must determine whether the public will pay to be vaccinated. While Americans are often required to pay for vaccines not covered by insurance, such as flu shots, the current national pandemic has altered cost analyses for COVID-19 vaccines. According to the CDC’s website, COVID-19 vaccines will be free for all Americans, although vaccine providers retain the ability to charge administration fees.[10] Essentially, the vaccines themselves are free to the public, but individual vaccine providers may charge additional fees that will be paid by insurance companies or the Health Resources and Services Administration’s Provider Relief Fund. By predominantly using taxes to fund vaccine dispersal, the federal government can ensure that everyone has access to the vaccine over the next few years. Otherwise, many Americans affected by COVID-19 would be unable to pay for an expensive vaccine.

In sum, federal agencies like the CDC and HHS are facing unprecedented challenges. They constantly engage in precarious balancing acts that simultaneously aim to save lives, reduce healthcare costs, and develop effective vaccines as quickly as possible. As specific COVID-19 vaccines receive Emergency Use Authorization from the FDA, federal agencies must offer widespread vaccinations without compromising drug testing mechanisms in place since 1902. New testing challenges will arise as federal agencies work with other countries that have developed vaccines. As we continue fighting COVID-19, federal agencies must determine whether foreign companies will be held to the same testing standards as American companies. Although Pfizer’s request for Emergency Use Authorization is a step in the right direction, stringent vaccine protocols will ultimately help Americans combat COVID-19.

[1] COVID-19 Vaccines, FDA (last updated Nov. 20, 2020), https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/covid-19-vaccines.

[2] Fact Sheet: Explaining Operation Warp Speed, HHS (last updated Nov. 20, 2020),  https://www.hhs.gov/coronavirus/explaining-operation-warp-speed/index.html#:~:text=Operation%20Warp%20Speed’s%20goal%20is,and%20diagnostics%20(collectively%20known%20as.

[3] Linda Bren, The Road to the Biotech Revolution: Highlights of 100 Years of Biologics Regulation, FDA Consumer Magazine, Centennial Edition (Jan.-Feb. 2006), https://www.fda.gov/files/about%20fda/published/The-Road-to-the-Biotech-Revolution–Highlights-of-100-Years-of-Biologics-Regulation.pdf.

[4] Emergency Use Authorization, FDA (last updated Nov. 23, 2020), https://www.fda.gov/emergency-preparedness-and-response/mcm-legal-regulatory-and-policy-framework/emergency-use-authorization.

[5] Coronavirus (COVID-19) Update: FDA Announces Advisory Committee Meeting to Discuss COVID-19 Vaccine Candidate, FDA (last updated Nov. 20, 2020), https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-announces-advisory-committee-meeting-discuss-covid-19-vaccine.

[6] Rebecca Robbins and David Gelles, How Pfizer Plans to Distribute Its Vaccine (It’s Complicated), New York Times (last updated Nov. 20, 2020), https://www.nytimes.com/2020/11/12/business/pfizer-covid-vaccine-coronavirus.html.

[7] Id.

[8] 8 Things to Know about Vaccine Planning, CDC (last updated Nov. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/8-things.html.

[9] Robbins & Gelles, supra note 6.  

[10] 8 Things to Know about Vaccine Planning, supra note 8.

Partial Housing Cost Forgiveness: Spreading the Cost of the Housing Repercussions of COVID-19

Isaiah McKinney

The COVID-19 pandemic has altered the lives of many Americans this year.  For some people, this change means working from home or attending online classes, while for others, it means losing their jobs and the majority of their income. Without moratoriums like the one issued by the Centers for Disease Control and Prevention on September 1, 2020, many people who have lost their income and are unable to afford their rent would be at risk of eviction.[1] This moratorium freezes rent payments for individuals who expect to earn $99,000 or less in 2020, are unable to pay rent because of the coronavirus, and would likely lose their housing without assistance.[2] While a moratorium through the end of the year can help save people from being displaced, these moratoriums are not without issues.

First, moratoriums do not forgive rent; rather, they toll the payment of it until a later date.[3] Eventually, the moratoriums will be lifted, and a large bill will come due in the form of months of unpaid rent. Because these moratoriums are only granted to people experiencing financial hardship, many of these people will be unable to pay the back rent that they will owe once the moratoriums are lifted. These moratoriums create a situation similar to that of a payday loan. When someone is in such dire straits that they need a payday loan, they likely are not in a sound financial position to be able to pay it back.[4] Thus, rather than solving the problem, these moratoriums are pushing it off until a later date, at which the tenants will likely still be unable to pay their rent.

Second, while an eviction moratorium saves renters’ housing, it can cost landlords theirs. Almost half of all rental properties in the United States are owned by individuals rather than corporations,[5] and these mom and pop landlords rely on rental income to pay both the mortgage on their rental properties and their own living expenses.[6] Landlords are being deprived of their livelihood because others are experiencing the same financial impacts of the virus.[7] As a society, we should not allow the housing burden to be passed on to landlords. However, simply extending moratoriums to landlords is likely to shift the financial burden onto lending institutions, interest rates, and the economy. While there are provisions in the Coronavirus Aid, Relief and Economic Security (CARES) Act to extend payment timelines for homeowners, and other commercial lenders have forbearance programs in place to delay mortgage payments,[8] we do not yet know how deferring payments will impact the financial sector and affect the economy.

There is no simple legal solution for this problem. In a perfect world, everyone would come together to help each other by paying what they can and writing off what is owed to them. Unfortunately, however, policy decisions are not made on the assumption that people will be neighborly. Whether there should be government involvement in the rent payment issue at all is another issue, but if the government is going to address this issue, eviction moratoriums may not be the  right solution. Instead of postponing the inevitable inability to pay rent with eviction moratoriums, perhaps the solution is to spread the costs across all members of the housing market. Rent and mortgages could be forgiven on a percentage basis for both renters and landlords based on an individual’s current income as compared to their pre-COVID-19 income. This way, everyone must still pay, but payments will be adjusted based on the percentages of their normal income that they are currently earning. This would spread the costs across tenants, landlords, and banks. If each party pays and forgives what they are able, everyone will be hurt in some way, but no one will completely bear the costs.

If the government chooses to continue down the path of moratoriums, tenants will still be required to pay back rent eventually. Moreover, due to the current economic climate, even when the economy recovers, tenants and landlords are going to lack the economic capital to pay past rent and mortgage payments.[9] Moratoriums are only postponing these evictions. And then, once evictions start, landlords will be faced with another challenge—struggling to find tenants because many of the people looking for housing will be unable to pay. Eviction moratoriums provide short term relief, but they also increase the consequences later down the road. Rather than continuing moratoriums, it would be more efficient and helpful to forgive rent and mortgages on a percentile basis, so no one loses their housing and the economic impact is borne by everyone, rather than just one segment of the economy.  

[1] Sarah Hansen, Trump Administration Announces New Eviction Moratorium, Effective Immediately, Forbes (Sept. 1, 2020, 6:17 PM), https://www.forbes.com/sites/sarahhansen/2020/09/01/trump-administration-announces-new-eviction-moratorium-effective-immediately/#a2e8f8621ab1 (federal eviction moratorium is extended until the end of the year).

[2] Id.

[3] Sarah Schindler & Kellen Zale, How the Law Fails Tenants (and Not Just During A Pandemic), 68 UCLA L. Rev. Discourse 146, 150-51 (2020).

[4] Payday Loan Facts and the CFPB’s Impact, Pew,  https://www.pewtrusts.org/en/research-and-analysis/fact-sheets/2016/01/payday-loan-facts-and-the-cfpbs-impact (last updated May 26, 2016).

[5] U.S. Dep’t of Hous. and Urban Dev., Message from PD&R Senior Leadership: Landlords,  https://www.huduser.gov/portal/pdredge/pdr-edge-frm-asst-sec-061118.html (last visited on Sept. 11, 2020).

[6]Robert Farrington, What an ‘Eviction Freeze’ Means for Mom and Pop Landlords, Forbes (July 15, 2020, 7:44 AM), https://www.forbes.com/sites/robertfarrington/2020/07/15/what-an-eviction-freeze-means-for-mom-and-pop-landlords/#2181228a7061. See also Abby Vesoulis, How Eviction Moratoriums Are Hurting Small Landlords—and Why That’s Bad for the Future of Affordable Housing, Time, (June 11, 2020, 10:08 AM) https://time.com/5846383/coronavirus-small-landlords/.

[7] See Jacob Passy, ‘Landlords are just trying to pay their bills like everyone else.’ The coronavirus could hit mom-and-pop landlords hard as tenants miss rent payments, MarketWatch, (Mar. 26, 2020, 2:17 PM), https://www.marketwatch.com/story/landlords-are-just-trying-to-pay-bills-like-everyone-else-the-coronavirus-could-hit-mom-and-pop-landlords-hard-as-tenants-miss-rent-payments-2020-03-25.

[8] Karen Ho, Missed rent and mortgage payments are rippling across the economy, Quartz, (April 30, 2020) https://qz.com/1844447/missed-rent-and-mortgage-payments-are-leading-to-forbearance-and-defaults/.

[9] Vesoulis, supra note 6.

Black Lives Matter Is Being Used to Strike Black Jurors

Lauren Green

In Batson v. Kentucky, the Supreme Court “ended the widespread practice in which prosecutors could (and often would) routinely strike all Black prospective jurors in cases involving Black defendants.”[1] Batson was supposed to raise the bar by requiring trial judges to evaluate a prosecutor’s “neutral explanation” in response to allegations of racially motivated juror strikes.[2] Rather, Batson’s “neutral explanation” standard enables and compels judges to take prosecutors at their word.[3] This creates a vicious circle where courts to continue to approve prosecutors’ reliance on certain explanations and prosecutors therefore continue to use those explanations. In a study that looked at more than 700 cases in California, peremptory challenges were used to eject Black jurors more than 70% of the time.[4] Of the 142 Batson objections ruled on between 1989 and 2019, California’s appeals court found prosecutorial prejudice in only three.[5]

Batson is failing at the state level as courts fail to rigorously apply the standard. This has become particularly troublesome regarding support of and involvement in Black Lives Matter (“BLM”). In a criminal case involving three Black men, prosecutors asked Chrishala Reed, a Black woman, about her involvement in BLM.[6] While the county court did not permit the prosecutors to use BLM as a for cause challenge to remove Reed, prosecutors used one of their peremptory challenges to remove her anyway.[7]

Attorneys for Reed noted that this technique is being implemented across the country: prosecutors ask potential jurors racially loaded questions and use their answers as an avenue to strike Black jurors.[8] For instance, in United States v. Bishop, the Ninth Circuit ruled that asking jurors in Los Angeles if they lived in Compton “served as a mere surrogate for race.”[9] In State v. Gresham, however, the Minnesota Court of Appeals affirmed the prosecutor’s peremptory challenge, over defendant’s objections and after the district court denied the prosecutor’s for cause challenge, upon asking a Black potential juror about her involvement in BLM.[10] The appeals court found that the prosecutor’s explanation regarding the juror’s “bias against the police, her statement that it was difficult to presume innocence, and her ability not to consider the consequences of the verdict” did not reveal inherently discriminatory intent.[11]

One of the attorneys for Reed argues that interrogating a juror’s feelings toward BLM is tantamount to interrogating Blackness.[12] In this sense, asking a Black juror about BLM serves as a mere surrogate for race similar to Bishop. Further, support of BLM is inexplicably tied to questions such as those asked by the prosecutor in Gresham,[13] yet jurors’ answers are subsequently reframed by prosecutors as “race-neutral” to bypass Batson, but still extrapolate bias.[14] The Ninth Circuit explained in Bishop that even assuming the prosecutor’s explanation was sincere, the explanation was not sufficient to satisfy Batson because “a discriminatory intent [was] inherent in the prosecutor’s explanation.”[15] The court noted in finding such that “the justification was tainted by impermissible generalizations regarding racial groups and their environment.”[16]

Simply, asking a potential juror about their support of BLM is a racially loaded question used by prosecutors to assume that juror cannot act impartially toward a Black defendant, but reframed as a bias against the State and law enforcement. The assumption that support of BLM automatically creates bias and impartiality is the type of impermissible generalization regarding racial groups Batson prohibits.[17] As seen above, courts deny prosecutors to use involvement and support of BLM as a for cause challenge but fail to engage in meaningful Batson analysis when reframed as a peremptory challenge. This intentional discrimination disguised as bias against the State harms not only the defendant but reinforces the Black community’s lack of confidence in the criminal justice system—a key motivator to support BLM. Until judges rigorously apply the Batson standard, or a new standard is articulated, voir dire will continue violating the Equal Protection rights of Black defendants and Black jurors, dismantling the protection a trial by jury is supposed to secure and amplifying distrust in the criminal justice system.

[1] Flowers v. Mississippi, 139 S.Ct. 2228, 2242 (2019) (referencing Batson, 476 U.S. 79, 89 (1986) (reaffirming Swain v. Alabama, 380 U.S. 202, 203–204 (1965) holding that purposeful exclusion of Black potential jurors ran afoul of the Equal Protection Clause)).

[2] Cynthia Rowland-Richers, Batson v. Kentucky: The New and Improved Peremptory Challenge, 38 Hastings L.J. 1195–96 (1987).

[3] Elisabeth Semel et al., Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors, Berkley L. Death Penalty Clinic (2020), https://www.law.berkeley.edu/experiential/clinics/death-penalty-clinic/projects-and-cases/whitewashing-the-jury-box-how-california-perpetuates-the-discriminatory-exclusion-of-black-and-latinx-jurors/.

[4] Id.

[5] Id. See also Flowers, 139 S.Ct. 2228 (involving a particularly “relentless” district attorney who had made peremptory challenges of a total of 41 Black prospective jurors over the course of two mistrials and four vacated verdicts).

[6] Andrew Karpan, When Can A Juror Say Black Lives Matter?, Law360 (Aug. 9, 2020, 8:02PM), https://www.law360.com/access-to-justice/articles/1299398/when-can-a-juror-say-black-lives-matter-?nl_pk=d4d1b6d1-e90e-457b-b8c8-3714b4237afa&utm_source=newsletter&utm_medium=email&utm_campaign=access-to-justice.

[7] Id. Prosecutors had already used peremptory challenges to remove six other persons of color from serving on the jury in the case. Id.

[8] Id.

[9] 959 F.2d 820, 826 (1992). See Cooper v. State, 432 P.3d 202, 206 (Nev. 2018) (“[W]e are concerned that by questioning a venire member’s support for social justice movements with indisputable racial undertones, the person asking the question believes that a “certain, cognizable racial group of jurors would be unable to be impartial, an assumption forbidden by the Equal Protection Clause.”).

[10] State v. Gresham, No. A15-1691, 2016 WL 7338718, at *1 (Minn. Ct. App. Dec. 19, 2016) (prosecutor asked prospective jurors, “Have you participated in any of the Black Lives Matters kind of marches and stuff like that here?”).

[11] Id. at *3.

[12] Karpan, supra note 6.

[13] The prosecutor asked: “[H]ave you participated in any of the Black Lives Matters kind of marches and stuff like that here?”; “[D]o you believe at least that there are [a] disproportionate amount of people of color who are going to prison?”; and also asked the juror if she believed her son had been racially profiled. Gresham, at *2.

[14] See the Gresham prosecutor’s “race-neutral” explanation at note 11.

[15] U.S. v. Bishop, 959 F.2d at 827 (citing Hernandez v. New York, 500 U.S. 352, 358­–59 (1991)).

[16] Id.

[17] 476 U.S. at 89.

How Telehealth Flexibility Driven By COVID-19 is Improving Mental Health Access

Stephanie Raborn

Despite Mental Health Parity laws, access to mental health services in the United States is limited.[1] A combination of cost, providers’ preferences for cash-based practices, and ongoing stigma about psychological and psychiatric services make it harder for individuals to access mental health services.[2] This problem is exacerbated by the global pandemic in terms of increased anxiety caused by physical and economic uncertainty and loss of income, including loss of health coverage benefits through employer-sponsored insurance.[3] But there is some good news—regulators’ and providers’ increased flexibility is making it easier to obtain mental health services through telemedicine.[4]

There are further improvements needed—like creating a pathway for individuals to obtain prescriptions currently blocked by the Ryan Haight Act[5]—but the legislative and regulatory response to access issues occurring as a result of the COVID-19 pandemic are a step in the right direction. For example, Pennsylvania has temporarily suspended program limits on the amount of services that can be provided through telehealth.[6] Maryland is allowing residential substance use disorder treatment programs to provide telehealth services to Medicaid patients and qualified uninsured Marylanders.[7] And Connecticut, while still requiring that participants be at Medicaid-enrolled originating sites to receive certain services­­—such as opioid treatment programs—via telemedicine, has removed limitations for originating sites for individual therapy, family therapy, or psychotherapy with medication management.[8]

Further, the Department of Health and Human Services as released guidance encouraging the use of telehealth for provision of various health services.[9] Insurers are getting on board, too. In July, Blue Cross Blue Shield of Massachusetts announced a plan to expand access to telehealth services by releasing a new incentive plan that reimburses child psychiatrists at a rate fifty percent higher than the standard rate schedule in exchange for agreeing to maintain availability in their practices for Blue Cross Blue Shield Members.[10] Cigna eliminated cost-sharing not only for telehealth visits from primary-care providers, but also for telehealth visits for behavioral health.[11] And Optum, a subsidiary of UnitedHealth Group, expanded availability of telehealth visits including growing its number of behavioral health providers.[12]

And indeed, there has been a dramatic increase in utilization of telehealth services overall amidst the pandemic.[13] Whether these measures take root and further expand access to mental health services remains to be seen, but they are a small victory, and as such are worth celebrating.

[1] New Study Reveals Lack of Access as Root Cause for Mental Health Crisis in America, National Council for Behavioral Health (Oct. 10, 2018), https://www.thenationalcouncil.org/press-releases/new-study-reveals-lack-of-access-as-root-cause-for-mental-health-crisis-in-america/#:~:text=These%20beliefs%20are%20driven%20by,for%20accessing%20mental%20health%20care..

[2]Mental Health in America: Access to Care Data, Mental Health America, https://www.mhanational.org/issues/mental-health-america-access-care-data  (last visited Aug. 2, 2020) (reporting that in 2020, 10.7%, or over 4.7 million, adults with mental illness remained uninsured).

[3] Alvin Powell, Feeling more anxious and stressed? You’re not alone, The Harvard Gazette (Apr. 16, 2020), https://news.harvard.edu/gazette/story/2020/04/rising-mental-health-concerns-in-the-coronavirus-era/ (highlighting individual responses reporting increased stress and anxiety being linked to the Covid-19 pandemic). See also Nirmita Panchal et al., The Implications of Covid-19 for Mental Health and Substance Use, Kaiser Family Foundation (Apr. 21, 2020), https://www.kff.org/coronavirus-covid-19/issue-brief/the-implications-of-covid-19-for-mental-health-and-substance-use/ (noting that in a Kaiser Family Foundation poll, forty-five percent of polled individuals reported a negative impact on their mental health “over worry and stress over the virus”).

[4] Madeline Guth and Elizabeth Hinton, State Efforts to Expand Medicaid Coverage & Access to Telehealth in Response to COVID-19, Kaiser Family Foundation (June 22, 2020),  https://www.kff.org/coronavirus-covid-19/issue-brief/state-efforts-to-expand-medicaid-coverage-access-to-telehealth-in-response-to-covid-19/.

[5] See Kierin Bernard, Telemedicine and the Ryan Haight Act: An Analysis of the Ryan Haight Act’s Statutory Purpose, its Inadvertently Negative Impact on the Telemedicine Industry, and the Future of Telemedicine, 10 Wake Forest J. L. & Pol’y 59, 64 (2019) (noting that “[o]ne of the most significant legislative limitations of telemedicine . . . is the requirement of the Ryan Haight Act that providers must conduct an in-person exam before they can prescribe controlled medications to their patients.”).

[6] Memorandum from the Pennsylvania Office of Mental Health and Substance Abuse Services (OMHSAS) (Mar. 15, 2020), https://www.dos.pa.gov/ProfessionalLicensing/Documents/OMHSAS-COVID-19-Telehealth-Expansion.pdf.

[7] Telehealth Guidance for SUD Residential Treatment Services During the COVID-19 Outbreak, Maryland Dep’t of Health (Apr. 15, 2020), https://maryland.optum.com/content/dam/ops-maryland/documents/provider/Alerts/april2020/Telehealth%20SUD%20Residential%20Treatment%20Guidance_041520.pdf.

[8] Connecticut Medical Assistance Program Provider Bulletin (Mar. 13, 2020), https://www.ctdssmap.com/CTPortal/Information/Get%20Download%20File/tabid/44/Default.aspx?Filename=pb20_09.pdf&URI=Bulletins/pb20_09.pdf.

[9] Telehealth: Delivering Care Safely During COVID-19, HHS.gov, https://www.hhs.gov/coronavirus/telehealth/index.html (last visited Aug. 2, 2020).

[10] Blue Cross Blue Shield of Massachusetts Announces Bold New Action To Expand Members’ Access to Mental Health Services, Blue Cross Blue Shield of Massachusetts (July 23, 2020),  http://newsroom.bluecrossma.com/2020-07-23-Blue-Cross-Blue-Shield-of-Massachusetts-Announces-Bold-New-Action-To-Expand-Members-Access-to-Mental-Health-Services.

[11] Cigna Expands and Extends its COVID-19 Relief for Medicare Advantage and Individual and Family Plans, Cigna Newsroom (June 1, 2020), https://www.cigna.com/newsroom/news-releases/2020/cigna-expands-and-extends-its-covid-19-relief-efforts-for-medicare-advantage-and-individual-and-family-plans.

[12] Optum Helping People Stay Connected with Needed Behavioral Health Support During COVID-19, BusinessWire (May 11, 2020), https://www.businesswire.com/news/home/20200511005259/en/Optum-Helping-People-Stay-Connected-Needed-Behavioral (discussing Optum’s expansion of behavioral health by adding more telehealth providers and expanding the availability of telehealth visits).

[13] Assistant Sec’y Plan. Educ., Medicare Beneficiary Use of Telehealth Visits: Early Data from the Start of the Covid-19 Pandemic, HHS.gov, 3 (July 2020) https://aspe.hhs.gov/system/files/pdf/263866/HP_IssueBrief_MedicareTelehealth_final7.29.20.pdf.

A Title IX Timing Conundrum

Manning Peeler

          This post discusses the timing of the recently released Title IX final regulation by the U.S. Department of Education.  For an in-depth consideration of cross-examination in campus Title IX hearings, see Manning’s forthcoming article in the Wake Forest Journal of Law & Policy Volume 10, Issue 3 entitled Seeking Clarity in the Title IX Confusion: Cross-Examination Requirement in Title IX Hearings Under Due Process.

As universities continue to deal with the significant changes to education and campus life caused by the novel coronavirus pandemic, the U.S. Department of Education (DOE) released the final version of a 2,033 page rule regarding how educational institutions can be in compliance with Title IX.[1]  Although schools had been looking forward to finally receiving official guidance on the topic, both the timing of the release and the date required for compliance lead to serious concerns.  Universities will need to comply with the new regulation by August 14, 2020, but as they deal with the fallout of COVID-19, university general counsels, Title IX offices, and other stakeholders need more time to make structural changes to policies and procedures in order to come into compliance with the new regulations.

The DOE released a Notice of Proposed Rulemaking regarding Title IX regulations on November 29, 2018, replacing the previously rescinded 2011 Dear Colleague Letter and 2014 Title IX Guidance Q&A.[2]  This proposed rule received significant feedback and criticism, setting the record for the highest number of comments ever made on a proposed rule at over 124,000 comments.  The influx of public comments demonstrated that there were significant issues with the proposed rule, so universities lacked clarity regarding how to prepare to adjust their Title IX programs to comply with the eventual final rule.   Almost eighteen months later on May 6, 2020, the DOE released the final version of the rule, which made significant changes to the original proposed rule.  These changes affected crucial aspects of a Title IX program such as the standard of proof in hearings, the minimal amount of Title IX claim investigators, and training requirements for the campus community.  According to the rule, universities must be in compliance with it by August 14, 2020.

While some of these changes were important and necessary to attempt to balance supporting sexual assault survivors with protecting the due process rights of the accused, universities need more than just a summer, especially a summer during a worldwide pandemic, to shape their Title IX programs to be in compliance with the new rule.  The August 14, 2020 date is not arbitrary.  It coincides with the starting date for many schools throughout the country and would allow for all Title IX claims during the 2020-2021 academic year to be handled under the same rules.  Although this is a respectable goal, it is not a feasible one.  Ted Mitchell, President of the American Council on Education, stated that the DOE usually gives schools at least eight months to adjust their operations to comply with new regulations, and he criticized the DOE’s timing by stating, “As a result of the pandemic, virtually every college and university in the country is closed. Choosing this moment to impose the most complex and challenging regulations the agency has ever issued reflects appallingly poor judgment.”[3]  Peter Lake, the Director of the Stetson University Center for Excellence in Higher Education Law and Policy, echoed Mitchell’s sentiment, pointing out that “[a] lot of people are going to be out of compliance for an entire academic year. The timing of this is really difficult for higher ed: late in the budget cycle, during a crisis and when they don’t have money.”[4]

With penalties such as loss of federal funding looming, universities must scramble to comply.   Difficulties associated with the pandemic include uncertainty about the opening of campuses, working from home, and budget issues.  Not all universities will have to make drastic changes to their Title IX programs in order to come into compliance, but any changes are significantly more difficult during a pandemic.  For example, the final rule requires at least three staff members to carry out different steps in the Title IX complaint process, so universities that do not have enough Title IX staff to meet this requirement will need to hire more staff or reorganize their staff structures.  As a result of the pandemic, universities already face difficult decisions regarding budgeting and staffing, and having to change their staffing organization in such a short time, especially in the period of stay-at-home orders, is an unnecessary burden to place on universities.  In order to ensure that universities have adequate time and resources to comply fully with the final rule and work toward Secretary Betsy DeVos’ goal of “support[ing] survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process,” the DOE needs to extend the timeline to comply with the final rule.[5]

[1] 34 C.F.R. pt. 106 (2020).  Although this regulation applies to all schools that receive federal funding, this post focuses on higher education institutions.

[2] See 83 Fed. Reg. 61,462, 61,497 (proposed Nov. 29, 2018) (to be codified at 34 C.F.R. pt. 106); Letter from Russlynn Ali, Assistant Sec’y for Civil Rights, Office for Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter: Sexual Violence 1, 4 (Apr. 4, 2011) (on file with the U.S. Dep’t. of Edu.); Memorandum from Catherine E. Lhamon, Assistant Sec’y for Civil Rights, Office for Civil Rights, U.S. Dep’t of Educ., Questions and Answers on Title IX and Sexual Violence iii (Apr. 29, 2014) (on file with the U.S. Dep’t. of Edu.).

[3] Greta Anderson, U.S. Publishes New Regulations on Sexual Assault, Inside Higher Education (May 7, 2020), https://www.insidehighered.com/news/2020/05/07/education-department-releases-final-title-ix-regulations.

[4] Id.

[5] Kathryn Stamm, New DeVos Title IX Rules to be Enacted by Mid-August, Leaving Colleges Scrambling to Comply, The Cornell Daily Sun (May 7, 2020), https://cornellsun.com/2020/05/07/new-devos-title-ix-rules-to-be-enacted-by-mid-august-leaving-colleges-scrambling-to-comply.

Constitution in Crisis: The Fourth Amendment and Combating COVID-19

Garret Stone

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In response to national emergencies, the federal government has previously implemented many policies in violation of constitutional guarantees to the private citizen. During World War II, Executive Order 9066 ordered approximately 117,000 Americans of Japanese ancestry living in California, Washington, and Oregon to be relocated and interned in remote military camps to combat potential espionage and sabotage.[1] In the wake of September 11, 2001, American military installations and the Central Intelligence Agency were permitted to torture suspected terrorists.[2] Undoubtedly, these policies constitute constitutional violations, but they were still accepted and even championed by the American public as necessary action.

The current COVID-19 pandemic presents new threats to private constitutional protections. In Griswold v. Connecticut, the Supreme Court found that the Fourth Amendment implicitly includes the right to individual privacy from government intrusion, derived from “penumbras and emanations” of the Bill of Rights.[3] The right to privacy has since been expanded to include robust protections for the private citizen.[4] Effectively minimizing the spread of coronavirus requires the federal and state governments to identify infected persons and track their location. Law enforcement agencies have access to sophisticated surveillance systems, including precise location tracking and facial recognition,[5] but state governments have taken little time to empower themselves to take full advantage of surveillance technology. For example, the New York legislature enacted emergency legislation granting Governor Andrew Cuomo unlimited authority to rule by executive order to combat COVID-19.[6] The federal government has recently contacted Google, Facebook, and other major tech companies about potentially using “aggregated location data” taken from Americans’ mobile phones for public health surveillance.[7] What may result is an unprecedented gathering of private information used to track citizens long after this pandemic has subsided.

Once surveillance of private individuals becomes unnecessary, will the government relinquish its hold on location information, or will tracking the public become the new status-quo? Historically, once the federal government has assumed new roles or powers, it is reluctant to roll back policy directives. The American Patriot Act passed during the Bush Administration’s aptly named “War on Terror” illustrates the staying power of emergency policies.  The Patriot Act gives sweeping search and surveillance powers to domestic and foreign intelligence agencies and eliminates the power of review previously reserved for the courts.[8] Although American escalation in the Middle East has been quelled, parts of the Patriot Act remain in effect, and the government’s national security surveillance powers remain significantly increased.[9]

It is unlikely that the government would ever willingly release the identities and locations of COVID-19 patients, but this information is still at risk of publication by nefarious entities.  Cyber warfare is rampant between the world’s leading powers. In 2008, the Pentagon’s security network was breached by a foreign espionage network.[10] Information relating to national security was compromised, and the breach is considered the most significant breach of U.S. military networks to date.[11] The cyber front is constantly evolving, and the government cannot ensure that the data it has collected to combat COVID-19 will remain confidential.

The United States is navigating uncharted waters. COVID-19 has upended the very fabric of American society and long-held notions of community. There is no doubt that health care surveillance is a necessary tool, but how this information may be used and how long emergency powers will last are topics of constitutional concern. Albert Cahn, the executive director of the Surveillance Technology Oversight Project, warned that this pandemic has the potential to “fundamentally change the scope of American civil rights.”  Short of evoking the fears of Orwell and the watchful eye of “Big Brother,” it is not outside the realm of possibility that location surveillance may be repurposed to further controversial political agendas, like anti-immigration policies. Only time will tell if the impact of COVID-19 will be lasting or fleeting on the private lives of American citizens. Until the sputum has settled, we can only wait and see.

[1] Japanese Internment Camps, History (Feb. 21, 2020), https://www.history.com/topics/world-war-ii/japanese-american-relocation.

[2] Carl Rosenberg, What the C.IA.’s Torture Program Looked Like to the Tortured, New York Times (Dec. 4 2019), https://www.nytimes.com/2019/12/04/us/politics/cia-torture-drawings.html.

[3] Griswold v. Connecticut, 381 U.S. 479, 483 (1964).

[4] See generally William M. Beany, The Constitutional Right to Privacy in the Supreme Court, 1962 Supreme Court Review 212 (1962) (tracking the evolution of the right to privacy).

[5] Natasha Singer & Choe Sang-Hun, As Coronavirus Surveillance Escalates, Personal Privacy Plummets, New York Times (Mar. 23, 2020), https://www.nytimes.com/2020/03/23/technology/coronavirus-surveillance-tracking-privacy.html.

[6] Id.

[7] Id.

[8] Jake Laperruque, What to Expect for the PATRIOT Act Reauthorization, POGO (Feb. 11, 2020), https://www.pogo.org/analysis/2020/02/what-to-expect-for-the-patriot-act-reauthorization/.

[9] Id.

[10] Secret U.S. Military Computers ‘cyber attacked’ in 2008, BBC News (Aug. 25, 2010), https://www.bbc.com/news/world-us-canada-11088658.

[11] Id.

Panic Buying: Toilet Paper Today, What’s Tomorrow?

Nicole Arcodia

Videos of consumers fighting over toilet paper, pictures of people lining up outside of stores to buy toilet paper, and security guards protecting toilet paper have become commonplace in the last couple weeks.[1] Due to excessive overbuying by some consumers, many stores have been forced to limit toilet paper purchases to one package per customer.[2] Where does the hysteria for a lack of toilet paper come from?

This unexpected run on toilet paper has confused many people given that an increased need for toilet paper is unrelated to the symptoms of coronavirus.[3] This stockpiling and hoarding of an essential good like toilet paper, however, is not an uncommon reaction when people are scared.[4] Empty shelves cause people to panic: there is fear of running out, fear of the unknown, and fear of what is to come.[5] Social media, particularly Instagram videos of people panic-buying toilet paper, memes about the lack of toilet paper, and pictures of empty shelves around the world have just added to the hysteria.[6]

A run on toilet paper is just the start. It has been almost three weeks since shelter-in-place and social distancing orders were first instilled throughout the country.[7] These shelter-in-place orders require Americans to work from home, students to take classes remotely from home, and people to stay in their houses unless otherwise necessary.[8] It began in California, and as of April 3, 2020, 297 million people in 38 states are being urged to stay home indefinitely.[9] However, the peak of coronavirus is still an estimated two to three weeks away, as is the peak use of resources.[10] Therefore, as a country it is necessary that we do not let hysteria and fear drive us to overbuy. People are encouraged to stock up on water, canned food, frozen food, and medication for at most a few weeks,[11] while still realizing that they can return to stores to buy more essentials if they run out.[12]

Luckily, ninety percent of toilet paper consumed in the United States is produced within the United States.[13] Therefore, although there is a shortage now, toilet paper producers expect the surge to subside and the supply to continue to grow, fixing availability problems.[14] However, for the time being, hoarding unnecessary items like toilet paper depletes these items for everyone else.[15] In this unprecedented time, an excess of something as simple as toilet paper will not protect people against coronavirus; instead it will keep others from getting supplies, food, and products that they need.

Today, fear and uncertainty looms, but there must remain room for hope and unity. That starts with something as simple as toilet paper. Instead of joining the hysteria, making decisions based on fear, running to the store and hoarding food and supplies, only get what is necessary. Further, focus on positive stories such as the benefit that coronavirus is having on the environment.[16] In Venice, dolphins were seen in canals that used to be murky, nitrogen dioxide pollution over China has dropped significantly, and Seattle, New York and San Francisco have each seen a substantial drop in harmful pollution.[17]

As we endure the coming weeks and months in this frightening and unprecedented time, it is important to not let fear and uncertainty cloud our judgment and together we can come out of this pandemic more unified.

[1] Todd C. Frankel, The Toilet Paper Shortage is Real. But It Should be Brief, The Washington Post (March 13, 2020 3:36PM), https://www.washingtonpost.com/business/2020/03/13/toilet-paper-shortage/.

[2] Michelle Toh, It’s Crazy’: Panic Buying Forces Stores to Limit Purchases of Toilet Paper and Masks, CNN Business (March 6, 2020 6:13AM), https://www.cnn.com/2020/03/06/business/coronavirus-global-panic-buying-toilet-paper/index.html.

[3] Frankel, supra note 1.

[4] Id.

[5] Id. In 2011, after an earthquake and tsunami hit Japan, there was a rush for household products including toilet paper. Id.

[6] Adam Westbrook, People Around the World Are Panic-Buying… Toilet Paper?, The New York Times (March 12, 2020),  https://www.nytimes.com/2020/03/12/opinion/toilet-paper-coronavirus.html?action=click&module=RelatedLinks&pgtype=Article.

[7] Sarah Mervosh, Denis Lu, et. al, See Which States and Cities Have Told Residents to Stay Home, The New York Times (April 2, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html.

[8] Id. It allows people to leave their homes for necessities: to go to the grocery store, to go to the doctor, and to exercise. Id.

[9] Id.

[10] Anagha Srikanth, Changing America: Here’s When the Coronavirus Will Peak in Your States, The Hill (April 2, 2020),  https://thehill.com/changing-america/well-being/prevention-cures/490856-when-will-coronaviruses-cases-peak-in-your-state.

[11] Westbrook, supra note 6.

[12] Toh, supra note 2.

[13] Frankel, supra note 1.

[14] Id.

[15] Id.

[16] Denise Chow, Coronavirus Shutdowns Have Unintended Climate Benefits: Cleaner Air, Clearer Water, NBC News (March 31, 2020 4:34PM), https://www.nbcnews.com/science/environment/coronavirus-shutdowns-have-unintended-climate-benefits-n1161921.

[17] Id.

Proposed Changes to Stark Law and the Anti-Kickback Statute Highlight the Complexity of Compliance for Healthcare Providers

Stephanie Raborn

In October 2019, the Centers for Medicare and Medicaid (CMS) and the Department of Health and Human Services (HHS) announced several proposed changes to “modernize and clarify” existing complex regulations prohibiting physician self-referral.[1] These proposed changes to the Physician Self-Referral Law (“Stark”) and the Anti-Kickback Statute (“AKS”) could signal a welcomed relaxation of providers’ compliance burdens with regard to the HHS and the CMS. They further illustrate, however, the complexity and challenge healthcare providers of all sizes face in maintaining a compliant practice. HHS and CMS should continue to be responsive to providers’ feedback regarding the challenges of compliance and relieve some of the burden on the industry by providing a greater number of sample arrangements meeting the laws’ requirements. Although the comment period for these proposed changes closed on December 31, 2019,[2] providers should continue to engage with agencies during notice and comment periods and lobby regulatory bodies for simplification and clarification of an increasingly complex compliance burden.

There are two primary federal laws affecting health providers’ agreements: Stark and AKS. These fraud and abuse laws, enforced by the Department of Justice (DOJ), the Department of Health and Human Services Office of Inspector General (HHS OIG) and CMS, can present dangerous pitfalls for unwary providers. Stark prohibits physicians from referring patients seeking certain “designated health services,”[3] which are payable by Medicare and Medicaid to entities in which the physician has a financial relationship, unless an exception applies. The Anti-Kickback Statute is a criminal law that prohibits knowing and willful remuneration—payment of anything of value including not only money, but excessive compensation, expensive hotel stays, meals and more—to induce or reward patient referrals or business generation.[4] Penalties for violation of these laws can include monetary penalties of up to $15,000 and $50,000 per violation (for Stark and AKS respectively) plus the cost of the remuneration multiplied and in the case of the criminal statute potential imprisonment of up to five years per violation.[5] The AKS contains safe harbors that protect certain payment or business arrangements from implication, and Stark’s exceptions and AKS’s safe harbors have been the source of much inquiry and confusion.

Goals of Stark include “protecting patients from unnecessary services and being steered to less convenient, lower quality, or more expensive services because of a physician’s financial self-interest.”[6] Similarly, the goal of the AKS is to avoid overutilization, increased program costs, the adulteration of medical decisions and unfair competition.[7] Laudable and necessary as these goals are, ensuring compliance with these statutes contributes to the labyrinth of regulations that healthcare providers must navigate while simultaneously addressing patients’ healthcare needs. The Stark Law is a strict liability statute, meaning that enforcement officials need not even prove that the provider knowingly or willfully violated the statute in order to obtain a conviction.

HHS’s proposed changes to the AKS include new safe harbors and existing safe harbor modifications, specifically the introduction of new “Value-Based Enterprise” safe harbors, a Personal Services and Management Safe Harbor, and a Cybersecurity and Electronic Health Record Donation Safe Harbor.[8] CMS’s proposed Stark Law changes include the creation of new exceptions for value-based arrangements, including a Full Financial Risk exception, Value-Based Arrangements with Meaningful Downside Financial Risk to the Physician, and a Value-Based Arrangements exception.[9] The scope of these proposed changes is broad, and their publication by HHS and CMS precipitated a flurry of questions and conjecture from the healthcare industry. Potentially affected providers should respond by reviewing the CMS[10] and HHS[11] fact sheets and by consulting healthcare compliance attorneys about implications to their arrangements. Providers should also engage with both agencies by submitting inquiries when the finalized changes are announced, and HHS and CMS should create Q&As and dedicate additional staff to anticipate and respond to inquiries.

[1] HHS Proposes Stark Law and Anti-Kickback Statute Reforms to Support Value-Based and Coordinated Care, U.S. Dep’t of Health and Human Servs. (Oct. 9, 2019), https://www.hhs.gov/about/news/2019/10/09/hhs-proposes-stark-law-anti-kickback-statute-reforms.html.

[2] Modernizing and Clarifying the Physician Self-Referral Regulations Proposed Rules, Ctrs. for Medicare & Medicaid Servs. (Oct. 9, 2019), https://www.cms.gov/newsroom/fact-sheets/modernizing-and-clarifying-physician-self-referral-regulations-proposed-rule.

[3] A Roadmap for New Physicians: Fraud & Abuse Laws, U.S. Dep’t of Health and Human Servs. (last visited Mar. 27, 2020), https://oig.hhs.gov/compliance/physician-education/01laws.asp.

[4] Id.

[5] Comparison of the Anti-Kickback Statute and Stark Law, Health Care Fraud Prevention and Enf’t Action Team, Office of Inspector Gen. (last visited Mar. 27, 2020), https://oig.hhs.gov/compliance/provider-compliance-training/files/StarkandAKSChartHandout508.pdf.

[6] Ctrs. for Medicare & Medicaid Servs., supra note 2.

[7] U.S. Dep’t of Health and Human Servs., supra note 3.

[8] Billy Wynne et al., Proposed Stark Law, Anti-Kickback Reforms Aid to Facilitate Value-Based Care, HealthAffairs (Oct. 15, 2019), https://www.healthaffairs.org/do/10.1377/hblog20191014.13154/full/.

[9] Id.

[10] Ctrs. for Medicare & Medicaid Servs., supra note 2.

[11] HHS Office of Inspector General Fact Sheet, U.S. Dep’t of Health and Human Servs. (Oct. 2019), https://oig.hhs.gov/authorities/docs/2019/CoordinatedCare_FactSheet_October2019.pdf.