Daily Archives: October 21, 2010

The Birmingham News: “The Alabama Supreme Court and Alabama Court of Civil Appeals will be on the Samford University campus today to hear oral
arguments in two cases, including one from Bessemer . . . The state Supreme Court will hear an appeal from a case involving parents who were sued for refusing to let grandparents visit their grandchildren.”

The Detroit News: “A federal judge today dismissed remaining claims in a lawsuit challenging President Barack Obama’s Health Care Reform Act of 2010. U.S. District Judge George C. Steeh issued an order that dismissed four claims in a lawsuit filed by the Thomas More Law Center, a Christian public interest law firm in Ann Arbor.”

KY 3: “The Missouri Bar Association has created Judging the Judges, a website where you can find everything out about your local judges who are up for retention or removal.”

Focus on the Family president Jim Daly writing at CNN: “Not only is Christianity not to blame for attacks against gays and lesbians, when properly interpreted and practiced, it is the cure for and solution to the mistreatment and abuse of anyone, for any reason.”

FRCBlog: “Welcome to this edition of the Social Conservative Review. This week, in addition to our usual compilation of articles and stories relevant to conservatives, we want to highlight a recent debate in which FRC Special Counsel and Director of the Center for Religious Liberty, Ken Klukowski, participated at the University of Michigan School of Law.”

Review includes:

Secularists Unite to Destroy Parental Authority and Religious Liberty, Alan Sears, Alliance Defense Fund

Religious Speech Vital to Democracy, Kevin Theriot, Alliance Defense Fund

ACSTO: Is the government’s decision not to tax every dollar you make the same as taxing and spending it? The ACLU seems to think so, David Cortman, Alliance Defense Fund

Milwaukee Journal Sentinel: “The state Department of Public Instruction sent a letter to the Cedarburg School District officials on Thursday saying they could be subject to a legal challenge if they continue with their newly adopted ‘opt-in’ policy for certain topics of the sexual education curriculum.”

Center for Reproductive Rights: “In our 2009 Annual Report, the Center looks back at the gains it’s made for the reproductive rights movement, both in the U.S. and around the world, and how to build on these victories, confront challenges, and strategize for the future.”

Market Watch: “The Deutsche Bank Americas Foundation, a philanthropic arm of Deutsche Bank in the United States, today announced four grants totaling $200,000 to provide an immediate response to recent tragic events impacting the local Gay community and to address increased incidents of Muslim discrimination in housing and employment.”

Keen News Service: “The lawsuit is Jackson v. D.C., an appeal that asks whether the District of Columbia charter (the city’s equivalent to a constitution) can bar voters from considering a ballot measure that would amend the charter in a way that would violate the city’s human rights law . . . And in its new petition, filed October 12 by the right-wing Alliance Defense Fund, the Jackson group argues the D.C. Court of Appeals decision has ‘left the District’s citizens without immediate recourse on the issue of marriage’ and ‘approved a Council-imposed limitation on the people’s Charter-based initiative power.’”

WQAD (AP): “The ACLU indicates its objection centers on a provision in the recall process requiring at least 100 registered voters in each of 25 Illinois counties sign a petition to initiate the recall effort. According to the ACLU, that means voters in less populous areas of the state have greater value than those in more populous counties.”

C-FAM: “A joint brief submitted this week criticizes a UN committee’s abuse of authority amid a back-door push for international abortion rights. C-FAM and the Alliance Defense Fund together outlined why they oppose the committee’s move to endorse a right to sexual and reproductive health. They acted in anticipation of a meeting called by the committee, one of many that oversee specific UN treaties, scheduled for next month in Geneva.”

CNN Belief blog: “Two out of three Americans believe gay people commit suicide at least partly because of messages coming out of churches and other places of worship, a survey released Thursday found.” PDF of Public Religion Research Institute survey

The Straits Times: “Ms Wang belongs to the ‘post-1980s generation’, single children who are the product of China’s 1979 family planning policy and the people who are fueling the country’s rising divorce rate, experts say. According to the Ministry of Civil Affairs, 1.71 million couples filed for divorce last year, up 10.3 per cent over 2008.”

Politico: “NPR’s decision to fire Juan Williams over comments he made about Muslims on Fox News has prompted calls on the right for Congress to remove its funding and concern on the left that NPR may have just handed its critics a powerful weapon for painting the broadcaster as liberal.”

Catholic News Agency: “The special Synod for Bishops for the Middle East is winding down. It will conclude with a celebration of Mass by Pope Benedict XVI on Oct. 24. Participants seem increasingly concerned about the growth of extremist forms of ‘political Islam’ in the region.”

Pearson v. Holder, No. 09-10808 (5th Cir. Oct. 20, 2010)

5th Circuit: Recipient of child pornography can challenge “sex offender” label prior to release and registration.

ChristianNewsWire: “In a case involving the continuing encroachment of modern technology upon personal privacy, The Rutherford Institute has come to the defense of an airline pilot who refused to submit to airport security screening that exposes intimate details of a person’s body to government agents.”

ABC News: “‘I don’t know what is going through the [Obama] administration’s thought process on “don’t ask, don’t tell,”‘ Olson said. ‘It would be appropriate for them to say “the law has been deemed unconstitutional, we are not going to seek further review of that.”‘”

The Christian Institute: “Judges yesterday ruled in favour of giving more weight to pre-nuptial agreements, but the decision does not mean ‘pre-nups’ are legally binding in England and Wales. A pre-nup is a contract made between a couple before marriage which says who will get what if they split up. Currently pre-nups are not part of English family law and making them so could encourage divorce, critics say.” Radmacher v. Granatino Judgment; Press Summary

ABA Journal: “In its brief in Schwarzenegger v. Entertainment Merchants Association, which is scheduled for oral argument on Nov. 2, California declares that ‘violent video games, like sexual images, can be harmful to minors and have little or no redeeming social value for them’ . . . For their part, the video game and merchants’ groups stress that video games are like other forms of literature, incorporating plot, character development, dialogue and other elements that include ‘good-versus-evil, triumph over adversity, struggle against corrupt powers and quest for adventure.’”

Evans-Marshall v. Board of Education of the Tipp City Exempted Village School District, No. 09-3775 (6th Cir. Oct. 21, 2010)

Unanimous decision by: SILER and SUTTON, Circuit Judges; CLELAND,

SUTTON, Circuit Judge. Does a public high school teacher have a First (and Fourteenth) Amendment right “to select books and methods of instruction for use in the classroom without interference from public officials”? Yes, says the teacher, Shelley Evans-Marshall. No, says the Tipp City Board of Education. Because the right to free speech protected by the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools made “pursuant to” their official duties, Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), we affirm the judgment rejecting this claim as a matter of law.

MinnPost.com: “[O]ver the past month and a half . . . Pawlenty has subtly yet clearly laid out his education platform for the nation. It merges his aspirational record in Minnesota (that is, what he’s glad he did and would have liked to do but couldn’t) with related policies that fall outside a governor’s state-focused purview . . . His self-association with Rhee, meanwhile, gives a large window into what Pawlenty views as an exemplary record that he would say ought to serve as a model for other school districts across the nation.”

Reuters: “Germany is probably home to more than 1,000 potentially violent Islamists and the number of identified militants has risen constantly in the past few years, the Federal Crime Office (BKA) said on Wednesday.”

Politics.hu: “The constitution which is now being drafted at the behest of the ruling Fidesz-Christian alliance will declare marriage suitable only for men and women, according to a section of the draft document seen by MTI.”

Religion Clause: “In Forthner v. Forthner, (MS App., Oct. 19, 2010), a Mississippi court of appeals rejected a father’s religious free exercise challenge to a judge’s decision giving his wife custody of their children and denying the husband separate maintenance.”

Associated Press: “The protesters are concerned not only about the flag, which was one of 11 flying above the memorial when it was dedicated six years ago, but about a metal sculpture nearby depicting a soldier kneeling before a cross.” | For more information, see this ADF Alliance Alert compound tag: http://www.alliancealert.org/tag/state-north-carolina+topic-monuments/

Windsor Beacon: “The new regulations proposed would limit the zoning areas the businesses could locate to only heavy industrial areas, with 1,500 foot buffers from schools, churches, residential zones, parks, cemeteries, playgrounds, child care centers and other adult businesses.”

KENS 5 (San Antonio): “Under the current city ordinance, sexually oriented business must have a special permit and must operate within designated zones, away from schools and churches. But Clamp says some nightclubs and bars are employing women wearing pasties. Although the current ordinance doesn’t specify that as nudity, Clamp says they are now considering amending the ordinance to require more coverage.”

WQOW: “The Menomonie City Council will have to wait before taking a vote that could keep an adult business out.”

When a 31-year-old single woman in Grand Rapids placed an ad for a Christian roommate on her church bulletin board, she had no idea it would result in a civil rights complaint accusing her of illegal housing discrimination.

Lincoln Caplan writing at Slate: “It has been Brennan’s legal enemies who have generally been readiest to credit him with a political philosophy—albeit rooted in a personal, rather than principled, vision. Central to the conservative attacks on the Warren Court a generation ago was a portrait of Brennan as an avatar of judicial activism. A measure of that campaign’s lasting impact is that many liberals, too, assume that, in shaping key rulings of the Supreme Court, Brennan imposed his own views and preferences . . . The biography usefully complicates that reductive notion, most notably in the realm of gender relations.”

At National Review Online, Ramesh Ponnuru comments: “[T]his defense misunderstands the conservative critique of judicial activism. That critique is perfectly capable of recognizing that an activist’s decisions might be ‘principled’ in the sense of fitting into a coherent political philosophy; what it denies is that the Constitution authorizes the justice to implement this political philosophy.”

Boston.com (AP): “The Colorado Board of Health approved a plan Wednesday to waive the $90 registration fee for indigent medical marijuana patients, starting Dec. 1. Patients who want their fees waived will have to show that they meet other government standards for indigence, such as qualifying for food stamps.”

Boston.com (AP): “A Muslim sect suspected of a series of targeted killings and a massive prison break has issued new threats in northern Nigeria, this time invoking al-Qaida’s north Africa branch.”

Catholic News Agency: “Various organizations in Mexico are urging President Felipe Calderon to call for a national debate on adoption by same-sex couples.”

Boston.com (AP): “An anti-gay marriage group is preparing to ask a judge for the right to run ads in the Rhode Island governor’s race without having to comply with state election law.”

The European Court of Human Rights will allow a German pro-life group represented by Alliance Defense Fund attorneys to intervene to defend life in a lawsuit filed against the German government. A man sued Germany after a state agency would not give his disabled wife drugs to commit suicide.

The Salt Lake Tribune: “The City Council announced Wednesday that it will consider passing ordinances that prohibit housing or employment discrimination based on sexual orientation or gender identity.”

Out & About: “The Memphis City Council’s Personnel Committee will again take up the issue of an employment non-discrimination ordinance that prohibits workplace discrimination for city employees based on religion, race, sex, creed, political affiliation, national origin, ethnicity, age, disability, sexual orientation, gender identity, gender expression or other non-merit factors.”

Related: TN: Citing lack of support, proposed Memphis anti-discrimination ordinance withdrawn

The Globe and Mail: “Quebec’s Orthodox Jewish community appeared for the first time on Wednesday before a National Assembly committee, taking up an unexpected cause – fighting a bill that would ban the wearing of the Muslim niqab when receiving government services.”

MercatorNet: “The women explain to us how it feels to be treated like a rented organ. ‘It is internally damaging. You become in your own mind what these people do and say with you. You wonder how could you let yourself do this and why do these people want to do this to you?’ Women who prostitute have described it as ‘paid rape’ and ‘voluntary slavery’. Prostitution is sexual harassment, sexual exploitation, often worse. His payment does not erase what we know about sexual violence, domestic violence and rape.”

Harvard Law Record: “Harvard Law School has shifted its grade publication policy again, according to Student Government representatives who met with Dean Martha Minow last week. The new 5.0 GPA scale that the Law School will use to calculate Latin Honors will no longer appear on the reverse side of current students’ official transcripts.”

ADF attorney Matt Bowman appeared on the Janet Mefferd Show to discuss the lack of justice for the 14th victim at Ft. Hood.| MP3 audio 18:50 mins

Chattanooga Times Free Press: “After receiving a letter of complaint from the Freedom from Religion Foundation this week on behalf of students from Soddy-Daisy High School, Scales sent an e-mail to all local principals on Tuesday, saying the U.S. Supreme Court had ruled prayer before football games and graduation ceremonies to be unconstitutional and that the practices should be stopped.”

Julie Hilden writing at FindLaw: “The case was DeFabio v. East Hampton Union Free School Dist., and the student, Daniel DeFabio, had sued the school and individual school officials — including the Principal and Superintendent — under a federal statute that allows civil suits to be brought for damages caused by violations of constitutional rights (including First Amendment rights) . . . In dismissing the suit, the appellate panel allowed public-school students to be effectively rendered unable to timely defend themselves against allegations made by their classmates — even when those very allegations are causing their classmates and others in the community to contemplate violence against them.”

Eugene Volokh writing at The Volokh Conspiracy: “I just came across an interesting case, Rahman v. Hossain (N.J. Super. Ct. App. Div.), which was apparently handed down June 17, but which just appeared on Westlaw. An ex-husband was demanding the return of a $12,500 ‘mahr’ payment that was made at the time of the marriage. The parties had apparently agreed to be married ‘under the law of Islam,’ so the court heard evidence from an expert about whether Islamic law called for return of the mahr under certain conditions, and concluded that it did; therefore, the ex-wife was required to return the money.”

Washington Square Newspaper (NYU): “Three panelists spoke yesterday at NYU Law School on the recent advances made against the U.S. military’s ‘Don’t Ask, Don’t Tell’ policy. Organized by OUTLaw, an LGBT advocacy group for NYU Law students, the event was timed to coincide with the arrival of U.S. Navy Judge Advocates General’s Corps recruiters on campus.”

“The Strasbourg-based court ruled that Russia had violated rights of assembly and had discriminated on grounds of sexual orientation. It ordered Russia to pay 29,510 euros ($41,090) to Alexeyev in damages and for legal fees.”

Eugene Volokh writing at The Volokh Conspiracy: “In a long line of cases (such as Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969)), the Supreme Court held that secular courts may not resolve religious questions, such as which rival church group most closely follows orthodox church teachings.”

Real Clear Politics has video.

Associated Press writer Mark Sherman: “President Barack Obama opposes the Pentagon’s ‘don’t ask, don’t tell’ policy on gays in the military, so why are Obama administration lawyers in court fighting to save it?”

“They marshal evidence that the underlying relationship between economic conservatism and social conservatism is changing. I think they’re right, and I think the Tea Party represents this on the popular level in the same way the new fusionism emerging among conservative intellectuals represents it on the elite level.”

Associated Press: “A pregnant woman in south China was detained, beaten and forced to have an abortion just a month before her due date because the baby would have violated the country’s one-child limit, her husband said Thursday.”

Politico: “Sarah Palin and Mike Huckabee rushed to the defense of political commentator Juan Williams on Thursday after he was fired by NPR for comments about Muslims.”

Associated Press: “Protesters blockaded Marseille’s airport, Lady Gaga canceled concerts in Paris and rioting youths attacked police in Lyon on Thursday ahead of a tense Senate vote on raising the retirement age.”

Associated Press: “The Pentagon says it’s working to come up with new guidelines regarding gays serving in the military after a court ruling restored the ‘don’t ask, don’t tell’ law, at least for now.”

Hugh Hewitt writing at Townhall: “On the day after [the election] the GOP leadership should gather and announce their intention to begin planning both to (1) block anything except minimalist measures in the lame duck session of the most-profligate and destructive Congress of modern times and (2) to develop the agenda for early January. They ought as well to pledge maximum transparency in those deliberations.”

Conn Carroll writing at The Heritage Foundation / The Foundry: “[The Left has picked] a new a set of government mandates and repackage it as Renewable Electricity Standards (RES). Don’t be fooled. The goal (reducing emissions) and mechanism (raising energy prices) are still the same. As is the result: millions of lost jobs at a time when unemployment already is hovering around 10%.”

ADF President and CEO Alan E. Sears writing at Inside the Issues: “For 52 years now, folks in the sunny coastal town have been putting together the annual Santa Barbara Community Prayer Breakfast . . . Last March, they created a . . . video to get the word out to business leaders, and enlisted several local educators to appear in it, including a teacher, a school superintendent, and Craig Richter, an elementary school principal who appeared for half a minute about 50 seconds into the clip . . . However, when a district board member saw the video on the Internet and complained, the district took action. They determined that Richter had both violated the sacrosanct and so-called ‘separation between church and state’ and dragged the district across the line with him.”

Andy Kopsa writing in The Iowa Independent: “The campaign to oust three Iowa Supreme Court justices over a 2009 ruling legalizing same-sex marriage has attracted the attention of some of the most influential conservative organizations in America . . . The Liberty Institute, the Texas organization offering to defend pastors who run afoul of the IRS by encouraging congregations to vote against the judges, is an affiliate organization of the Alliance Defense Fund.”

The Samford Crimson (Samford University): “[Aaron makes] some sweeping pronouncements about his fellow Christians who choose to protest through the Alliance Defense Fund’s ‘Pulpit Freedom Day.’ I found one assertion particularly ridiculous: ‘These churches no longer have God as their ultimate concern. The country, politics, and campaigns have consumed their lives. In their mind, too, the state is their ultimate concern.’” (Erik Stanley is quoted)

CBC: “A community group in Halifax is hoping a vacant church will be replaced with a seniors complex that will focus on welcoming gay, lesbian, bisexual and transgendered seniors.”

Lexington Herald-Leader: “John Wright refused to resign [as president of a Winchester Masonic lodge]. Later, he stood firm when a Frankfort lodge proposed a change to the group’s state constitution that would have prohibited openly gay men from being Masons in Kentucky. At an annual statewide meeting in Louisville Monday, attendees turned down the proposal.”

TIME / Swampland: “So just who is Judge Phillips? Elaine Donnelly of the conservative Center for Military Readiness has christened her the ‘supreme judicial commander of the U.S. military.’ Tony Perkins of the Family Research Council calls her ‘an activist judge playing politics with our national defense.’ But she is generally well-regarded in California legal circles, which was only as far as her reputation had spread until she ruled the military’s gay ban unconstitutional Sept. 9.”

Guardian: “The current frontrunner to succeed Mary McAleese as head of state in the Irish Republic admits that it was a Facebook campaign that prompted him to step forward for the presidency. Two recent opinion polls have put the independent senator David Norris ahead of all other possible candidates. His election next autumn would mark an astonishing change in a country once regarded as one of the most conservative Catholic nations in Europe.”

Washington Post / D.C. Wire: “The graphic television ads created by Missy Reilly Smith, a GOP candidate for the District’s congressional delegate seat, to generate interest in her long-shot campaign will probably start hitting television sets across the region this week. But that doesn’t mean the ads, which feature photographs of supposedly aborted fetuses, are suitable for YouTube.”

Foreign Policy: “It’s true that the world’s population overall will increase by roughly one-third over the next 40 years, from 6.9 to 9.1 billion, according to the U.N. Population Division. But this will be a very different kind of population growth than ever before — driven not by birth rates, which have plummeted around the world, but primarily by an increase in the number of elderly people. Indeed, the global population of children under 5 is expected to fall by 49 million as of midcentury, while the number of people over 60 will grow by 1.2 billion. How did the world grow so gray, so quickly?”

FRC Washington Update: “Last week, the social media giant officially friended the Gay and Lesbian Alliance Against Defamation (GLAAD) to ‘end hate speech and anti-gay bullying’ on the Internet. The new partnership, which made a splash in the mainstream news, is significant because it puts Facebook on the media’s growing path toward censorship.”

AP: “The world’s second-largest economy grew 9.6 percent in the July-September quarter over a year earlier, official figures showed Thursday. That was down from the previous quarter’s 10.3 percent but still by far the highest of any major economy.”

“Look, Bill, I’m not a bigot. You know the kind of books I’ve written about the civil rights movement in this country. But when I get on the plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they are identifying themselves first and foremost as Muslims, I get worried. I get nervous.”

More details about the event available here.

Bloomberg: “Google Inc. cut its taxes by $3.1 billion in the last three years using a technique that moves most of its foreign profits through Ireland and the Netherlands to Bermuda . . . he U.S. corporate income-tax rate is 35 percent. In the U.K., Google’s second-biggest market by revenue, it’s 28 percent . . . The high corporate tax rate in the U.S. motivates companies to move activities and related income to lower-tax countries, said Irving H. Plotkin, a senior managing director at PricewaterhouseCoopers LLP’s national tax practice in Boston.”

“Marjorie Dannenfelser, President of the Susan B. Anthony List (SBA List), is being threatened with possible jail time for informing voters that Driehaus voted in favor of taxpayer-funded abortion with his vote for Obamacare.”

“A federal appeals court on Wednesday temporarily granted the U.S. government’s request for a freeze on a judge’s order requiring the military to allow openly gay troops.”

“It comes down to changing the culture, and top brass say they need more time. The military has been long resistant and, at times, hostile to gays, and it draws much of its 2.4 million members from socially conservative parts of the country.”

Tamar R. Birckhead, Graham v. Florida: Justice Kennedy’s Vision of Childhood and the Role of Judges (October 19, 2010). Duke Journal of Constitutional Law & Public Policy, Vol. 6, 2010. Available at SSRN: http://ssrn.com/abstract=1694788

“This short article examines Graham v. Florida, the United States Supreme Court decision holding that the Eighth Amendment’s Cruel and Unusual Punishments Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime. This article argues that Justice Anthony Kennedy’s majority opinion is grounded not only in Roper v. Simmons, which invalidated the death penalty for juvenile offenders on Eighth Amendment grounds, and Kennedy v. Louisiana, which held that the Eighth Amendment prohibited the death penalty for the offense of rape of a child, but in Establishment Clause cases set in the context of public schools and Fourteenth Amendment Due Process Clause cases upholding parental notification requirements for teenagers seeking abortions. Whereas many journalists and scholars consider Justice Kennedy a ‘legal pragmatist’ who lacks an overarching philosophy to guide his decision-making, in each of these opinions his view of childhood and the proper role of judges is consistent: children and adolescents are unformed works in progress, in the midst of both character and brain development, who are particularly susceptible to direct as well as indirect forms of coercion; as a result, when determining what liberty interests are protected by the United States Constitution, the role of judges and the courts is to ensure that youth mitigates rather than aggravates. Further, although juvenile justice advocates have heralded Graham as a clear victory, the opinion may raise as many questions as it seeks to answer.”

Clare Huntington, Familial Norms and Normality (October 19, 2010). Emory Law Journal, Vol. 59, No. 1103, 2010; U of Colorado Law Legal Studies Research Paper No. 10-26. Available at SSRN: http://ssrn.com/abstract=1694746

“Social norms exert a powerful influence on families. They shape major life decisions, such as whether to marry and how many children to have, as well as everyday decisions, such as how to discipline children and divide household labor. Emotion is a defining feature of these familial social norms, giving force and content to norms in contexts as varied as reproductive choice, parenting, and same-sex relationships. These emotion-laden norms do not stand apart from the law. Falling along a continuum of involvement that ranges from direct regulation to choice architecture, state sway over social norms through their emotional valence is an under-recognized aspect of the family-state relationship.

Although scholars have explored aspects of familial social norms, current accounts offer an incomplete picture of both families and family law because they insufficiently account for the elemental relationship between social norms, emotion, and the state. By exploring the confluence of these forces, this Article makes two contributions to the literature. Descriptively, this Article identifies the centrality of emotion in creating and defining familial social norms. First, emotion is often the content of a familial social norm; therefore it is impossible to understand the norm without understanding emotion. Second, emotions can trigger social norms, with particular emotions leading to changes in behavior. Third, familial social norms carry tremendous emotional weight, which explains why the cost of noncompliance can be particularly high in the family context. Finally, the emotion-laden nature of familial social norms complicates any predictive enterprise for law and policy.

Normatively, a more complete understanding of the operation of familial social norms allows for more effective regulation of families. The state should recognize that emotion is a powerful point of entry when it seeks to influence norms and shape behavior. There are risks to this influence, but exposing the uncomfortable reality that the law often tries to manipulate our affective lives creates an opportunity to use this dynamic for more appealing ends, such as cultivating greater tolerance for parental conduct that falls outside dominant norms.”

Kathy L. Cerminara, Hospice and Health Care Reform: Improving Care at the End of Life (October 15, 2010). Widener Law Review, Vol. 16, 2011; NSU Shepard Broad Law Center Research Paper No. 10-012. Available at SSRN: http://ssrn.com/abstract=1694196

“Health care reform focused on coverage of hospice care in significant ways. Specifically, the Patient Protection and Affordable Care Act (the Act) recognized the value in accessing hospice services as soon as possible by (1) immediately authorizing concurrent payment for curative and palliative care to children with Medicaid coverage and (2) authorizing a demonstration program to study the value of doing so with respect to Medicare beneficiaries. It also, however, imposed an additional requirement on physicians and nurse practitioners recertifying patients for hospice care eligibility, thus potentially over-regulating one aspect of hospice care. This Article lauds Congress for its position with respect to concurrent care but cautions that legal, regulatory, and medical professionals should carefully monitor the effects of the change Congress made to the recertification requirements. Without careful monitoring and calibration, the latter change could inappropriately chill hospice recertifications, thus negating part of the good accomplished through the former change.”