June 2014—Public Health Law News

Journal article on using law to promote healthcare safety. Clinical Governance: An International Journal published Law as a Tool to Promote Healthcare Safety [PDF - 106KB], by Tara Ramanathan, describing legal sources and principles that impact responses to unsafe injection practices that result in infection and injury. In particular, the article aims to inform healthcare providers and healthcare facility leaders about the statutory, administrative, criminal, and tort law implications related to preventable harms from unsafe injection practices. Find more information and download Clinical Governance: An International Journal, 2014;19(2):172–80.

Journal article on immunization policy and laws. The Journal of Public Health Management and Policy published Immunization Information Systems: A Decade of Progress in Law and Policy, by Daniel W. Martin, Elaine N. Lowery, Bill Brand, Rebecca Gold, and Gail Horlick, was published online ahead of print on June 16, 2014. The article reports on a study of laws, regulations, and policies governing immunization information systems (IIS, also known as “immunization registries”) in states and selected urban areas of the United States. The study included a search of relevant statutes, administrative codes, and published attorney general opinions or findings, an online questionnaire completed by immunization program managers or their staff, and follow-up telephone interviews. Find more information and download the article.

2014 Public Health Law Conference. The 2014 Public Health Law Conference will take place October 16–17, 2014, in Atlanta, Georgia. The conference will gather public health and legal experts from across the country to examine and discuss today’s critical challenges in public health law. Find more information about the conference and learn how to get early bird registration rate.

2014 APHA Meeting. The American Public Health Association’s (APHA) 142nd Annual Meeting, themed “Healthography: How Where You Live Affects Your Health and Well-Being,” will take place in New Orleans, November 15–19, 2014, at the Ernest N. Morial Convention Center. Register by August 28, 2014, for the early registration discount. Advanced registration deadline is October 3, 2014. Find more information and register for the meeting.

Hospital legal preparedness resources. The Public Health Law Program’s Hospital Legal Preparedness: Relevant Resources compiles CDC and external resources to help hospitals to consider the law when they prepare for and respond to emergencies. Find more information and visit Hospital Legal Preparedness: Relevant Resources.

Health Impact Assessment Legislation report. The National Conference of State Legislatures released, Health Impact Assessments: An Analysis of State Health Impact Assessment Legislation, May 2014, a new resource supported by the Health Impact Project, a collaboration of the Robert Wood Johnson Foundation and The Pew Charitable Trusts. A health impact assessment (HIA) is a tool that policymakers can use to gauge the potential health impacts of a policy or project. HIAs allow state lawmakers to tailor policies in order to avoid or mitigate negative health impacts. HIAs can be used in a wide-variety of policy areas, from transportation projects to pollution prevention to new energy facility siting decisions. Find more information and download the HAI report [PDF - 610KB].

ASTHO Profile of State Public Health Infographics. The Association for State and Territorial Health Officials (ASTHO) created a set of five infographics to provide an advance look at key data from the forthcoming third edition of the ASTHO Profile of State Public Health (Profile). Each infographic focuses on an important aspect of the third edition's findings: the state public health workforce, state health agency activities, accreditation and quality improvement in the states, and trends in health information exchange. The final infographic provides a high-level overview of state public health. The third edition of the ASTHO Profile will be available this month. Find more information and view the infographics.

Report on scope of prescription drug abuse and heroin problem. The National Association of State Alcohol and Drug Abuse Directors released a new report providing the results of a membership inquiry describing the scope of the prescription drug abuse and heroin problem along with actions state substance abuse agencies are taking to address these challenges. The report finds that, “State substance abuse agencies are implementing a number of initiatives and strategies related to opioid issues.” The report may serve as a “states-helping-states” tool. Find more information and download the report [PDF - 975KB].

National: Bias claims for insurers in coverage of HIV

New York Times   (05/29/2014)   Katie Thomas

On Thursday May 29, 2014, the National Health Law Program and the AIDS Institute filed a complaint with the Department of Health and Human Services’ Office for Civil rights alleging that four insurers offering plans in the new federal marketplace are discriminating against people with HIV or AIDS. According to the complaint, the insurers are requiring people infected with HIV to pay exorbitant out-of-pocket costs for medications most HIV patients take  every day.

“This practice has no rational reason other than to drive people with HIV and AIDS away from their plans,” said Wayne Turner, a staff lawyer with the National Health Law Program.

According to the complaint, the four insurers, CoventryOne, Cigna, Humana, and Preferred Medical Plan, classify HIV drugs in the highest, most restrictive tiers, which means consumers are required to pay a high deductible before and then still required to pay an additional 40 to 50 percent towards their drugs, including generics.

Spokespeople for the companies maintain that the plans meet the requirements for coverage.

[Editor’s note: Find more information and read the complaint.]

National: Big tobacco wins approval for confessional ad plan

Law360   (06/03/2014)   Andrew Scurria

On Monday, June 2, 2014, U.S. District Judge for the District of Columbia Gladys Kessler accepted an amended agreement with the three largest U.S. tobacco companies, Philip Morris USA Inc., R.J. Reynolds Tobacco Co., and Lorillard Tobacco Co., about how the companies will publicize corrective advertising statements.

The agreement, which is the latest action in a long running case against the companies for false advertising claims, stipulates that the companies will run ads five times a week for a year on the three major television networks, ABC, NBC, and CBS. In addition to these commercials, the tobacco companies will also publish statements in newspapers, on their own websites and on some cigarette packaging. The tobacco companies may also elect to use up to one-third of their advertising time on other channels as long as those ads reach as many overall viewers and more African Americans as they would on the three major networks.

“Publicizing the corrective statements is a major step forward in the effort to remedy many years of false and deceptive advertising by defendants,” the judge said.

[Editor’s note: Find more information about United States v. Philip Morris USA Inc., Civil Action No. 99-CV-2496(GK), by reading the Memorandum Opinion and Order #50-Remand [PDF - 118KB] and Order #51-Remand Consent Order Implementing the Corrective Statements Remedy Under Order #1015 and Order #34-Remand [PDF - 396KB].]

California: Berry industry turning red over professor’s proposed retirement
Strawberry expert at center of battle over fruit’s future
Los Angeles Times   (05/27/2014)   Larry Gordon

Colorado: Data needed to assess marijuana legalization’s effect on crime
After 5 months of sales, Colorado sees the downside of a legal high
New York Times   (05/31/2014)   Jack Healy

Florida: State sues for right to inspect Veterans Administration hospitals
At Gov. Rick Scott’s behest, state sues feds for right to inspect VA hospitals
Tampa Bay Times   (06/05/2014)   William R. Levesque

Illinois: High school students must learn CPR and how to use an AED under law
Quinn signs bill requiring high schools to teach CPR
Chicago Tribune   (06/05/2014)   John Byrne
[Editor’s note: Find more information and read Illinois House Bill 3724.]

Indiana: Pharmacy Board bans compounds used in synthetic drugs like spice and K2
State board bans compounds used in making synthetic drugs
Indystar   (05/23/2014)   Barb Berggotz 

New York: E-health internship to study legality of telehealth and telemedicine
Albany Law School, state bar association begin e-health internship program
Biz Journal   (05/16/2014)   Megan Rogers
[Editor’s note: Find more information about the e-internship.]

National: FDA approves MRSA drug as first ‘Qualified Infections Disease Product’
FDA approves drug to treat MRSA
CNN   (06/04/2014)   Jen Christensen
[Editor’s note: Find more information about Qualified Infectious Disease Products and Methicillin-resistant Staphlococcus areus (MRSA).]

National: More than half of accountable care organizations physician-led, study finds
First national survey of ACOs finds that physicians are playing strong leadership and ownership roles
The Commonwealth Fund   (06/03/2014)   Carrie H. Colla, Valerie A. Lewis, Stephen M. Shortell, and Elliot S. Fisher

National: EPA uses formula to set individual state’s emissions goals
How much each state has to cut carbon emissions under new EPA regulations
Governing   (06/04/2014)   Chris Kardish, Kevin Tidmarsh
[Editor’s note: Find more information about the new regulations by reading the Environmental Protection Agency’s fact sheets, technical guide on methodology [PDF - 740KB], and interactive map.] 

National: Sylvia Mathews Burwell confirmed as secretary of HHS
Senate Confirms Sylvia Mathews Burwell as new secretary of HHS
Washington Post   (06/05/2014)   Amy Goldstein
[Editor’s note: Find more information about Secretary of Health and Human Services Sylvia Mathews Burwell.]

Robert García

Title:
Founding Director and Legal Counsel for The City Project
Community Faculty, Charles Drew University of Medicine and Science  

Education: 
Stanford Law School 1978, Board of Editors, Stanford Law Review
Stanford University 1974 (Philosophy)

PHLN: Please describe your career path. 

García: I am a civil rights attorney. I have tried to do work that would make me the best lawyer I can be to serve unpopular people in unpopular causes. I graduated from Stanford and Stanford Law School. I clerked for a judge. I practiced law at a large New York law firm. I served as Assistant United States Attorney in the Southern District of New York prosecuting complex federal crimes. I was Western Regional Counsel with the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund. I have represented people on Death Row in Georgia, Florida, and Mississippi. I helped release Geronimo Pratt, the late Black Panther leader, after twenty-seven years in prison for a crime he did not commit. I am on the faculty at Charles Drew University, and I have taught at UCLA and Stanford Law Schools.

PHLN: What was your inspiration behind founding The City Project?

García: We started The City Project in 2000 to find and pursue alternative ways of achieving social change through law without using litigation as the first or only tool. We do coalition building and organizing, translate policy and law into real changes in people’s lives, strategic media, and policy and legal advocacy outside the courts. We also will seek access to justice through the courts within a broader campaign.

PHLN: Can you please describe The City Project’s mission and goals?

García: Our mission is equal justice, democracy, and livability for all. Our goals are healthy green land use, quality education including physical education, health equity, and meaningful work with economic vitality for all.

PHLN: Can you please describe your day-to-day job responsibilities?

García: As director and counsel, I do everything from write to the President of the United States, take out the trash, and practice civil rights law.

PHLN: How are race, color, and national origin related to public health law?

García: Public health law includes civil rights protections that guarantee equal access to public resources, and require recipients of federal funding and others to comply with nondiscrimination requirements based on race, color, or national origin.

PHLN: How is civil rights law related to public health outcomes?

García: The problem is that ethnic and racial health inequities remain persistent and pervasive. Civil rights laws are part of the solution to improve health outcomes. From a health perspective, civil rights laws offer important, underused tools to support health-based recommendations. From a civil rights perspective, the health lens offers a powerful way to improve compliance and protect people’s civil rights.

Health is a state of complete physical, mental, and social well-being, and not merely the absence of disease or infirmity, according to the World Health Organization. The social determinants of health include where people live, learn, work, play, pray, and age. Civil rights laws can help address these determinants to promote health equity in all policies.

PHLN: Specifically, what federal laws and case law does The City Project invoke to improve public health?

García: The City Project relies on several civil rights laws to improve health outcomes. The Affordable Care Act’s section 1557 prohibits health discrimination by any health program or activity that receives federal funding, or is administered by a federal executive agency. The Act is the most recent recognition by Congress on the need to address health discrimination. The Act also includes over sixty provisions to improve wellness and prevention. The Act refers to Title VI of the Civil Rights Act of 1964 and other laws. Title VI and its regulations require recipients of federal funding to comply with nondiscrimination requirements based on race, color, or national origin. The President’s Executive Order 12898 on environmental justice and health requires federal agencies to identify and address disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations. California law provides similar protections against discrimination.

PHLN: How does The City Project work to incorporate these laws into federal, state, and local activities?

García: Here are examples drawing on the lessons of the Civil Rights Movement. People of color and low income have the worst access to parks and recreation, suffer disproportionately from obesity and diabetes, and are the most at risk for crimes, drugs, and violence in the Los Angeles region. Access to physical activity in parks and school fields can help alleviate health inequities. The City of Los Angeles and a wealthy developer wanted to build thirty-two acres of warehouses using federal subsidies in the last, vast, open space in downtown Los Angeles. Andrew Cuomo, who was then Secretary of the U.S. Department of Housing and Urban Development (HUD), refused to issue any federal subsidies unless there was full environmental review that considered the park alternative and the impact on people of color and low income people. Secretary Cuomo relied on Title VI and Executive Order 12898. HUD acted in response to an administrative complaint filed by The City Project with diverse allies alleging that discriminatory land use policies had long deprived underserved neighborhoods of parks. Secretary Cuomo’s action is a seminal moment in the history and greening of Los Angeles for people, parks, and planning. The action led to the creation of what is now Los Angeles State Historic Park, and triggered the revitalization of the Los Angeles River.

The Army Corps of Engineers recommends a billion dollar alternative to green the river. According to the draft Army study, there are inequities in access to parks and recreation in the region, and these inequities contribute to health disparities based on race, color, or national origin, and civil rights laws apply to alleviate these disparities.

Similarly, the National Park Service study for the proposed National Recreation Area in the San Gabriel Mountains and watershed discusses these park inequities, health inequities, and civil rights laws. Congresswoman Judy Chu released draft legislation to create the national recreation area, citing health and environmental justice as two of the main justifications.

California law requires physical education in public schools [DOC - 73KB], yet half the districts audited did not enforce those physical education requirements. The Los Angeles Unified School District has adopted a physical education plan to provide physical education in compliance with the education code and civil rights laws. This is a health and civil rights issue because districts that do not provide physical education disproportionately serve African American and Latino students. According to a peer reviewed journal article, students in noncompliant school districts were less likely to meet or exceed fitness standards than those in policy-compliant districts and were more likely to be black or Hispanic and eligible for free and reduced price lunches. If students of color don’t get physical education in school, they typically do not engage in physical activity. They live in neighborhoods without safe places to play in parks or schools that are closed after hours, according to mapping, demographic analyses, and policy reports by The City Project. The school district adopted the physical education plan in response to an administrative complaint by The City Project, the teachers’ union, and advocates for students and health advocates.

PHLN: What populations are overlooked when civil rights laws aren’t used in city and state planning?

García: No one would have proposed putting thirty-two acres of warehouses in a disproportionately white and wealthy community like Beverly Hills, without proper compliance review and public participation. They cannot do it in communities that are disproportionately of color and low income. The HUD decision, the Army study for the L.A. River, and the National Park Service study for the San Gabriels show that.

PHLN: Can you give specific examples of how failure to consider race, color, and national origin can negatively affect population health? 

García: If you’re not at the table, you’re on the menu. L.A. State Historic Park, the revitalization of the L.A. River, permanent protection for the San Gabriels, and physical education in Los Angeles schools are best practice examples where compliance with civil rights laws can positively affect health outcomes for all. In contrast, the City of Los Angeles recently published a health atlas that relies on socioeconomic indicators and a “community health and equity index” to assess public health. While that can be helpful, socioeconomic indicators and the index do not adequately account for health inequities based on race, color, or national origin. Failure to do so could perpetuate existing race-based health disparities and result in an inequitable allocation of resources. The City Project is working with the city on an advisory committee for the health element for the general plan to address these concerns by including the analysis that was left out.

PHLN: Can you give specific examples of how public health outcomes have improved by using civil rights-based planning techniques?

García: The myriad strategies of the Civil Rights Movement started the process of dismantling health discrimination. The Civil Rights Revolution includes attorneys taking cases to court, judicial decisions, grass roots organizing, legislation by Congress, action by the President, implementation by administrative agencies, and people exercising the right to vote.

Thus, civil rights attorneys successfully challenged “separate and unequal” schools for African American and Latino children through the courts. The Supreme Court abolished the “separate but equal” doctrine in Brown v. Board of Education. The Movement in the streets, organized by Martin Luther King, Jr., the Southern Christian Leadership Conference, Student Nonviolent Coordinating Committee, and others, culminated in the March on Washington for Jobs and Freedom in 1963, and the passage of landmark civil rights legislation. Congress passed the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968. President Lyndon Johnson, a southern president, pushed the 1964 Act through Congress. Administrative agencies implemented the laws. The 1964 election provided a mandate by the people to support the Civil Rights Revolution.

For example, the federal Hill Burton Act of 1944 provided $100 million per year to states for discriminatory health services and facilities. A federal court of appeals struck down the “separate but equal” provision in 1963 in Simkins v. Moses H. Cone Memorial Hospital, applying the logic of Brown. The federal government then used Title VI combined with Medicare funding to prevent health discrimination. As a result, health outcomes improved for both black and white people in the South.

PHLN: What projects are you currently working on?

García: Major projects include ensuring compliance with civil rights requirements in public schools, working with Charles Drew University on health inequities and civil rights, health and environmental justice along the L.A. River and in the San Gabriel Mountains and watershed, local green jobs, and avoiding displacement and gentrification as places become greener and more desirable.

PHLN: How can individuals learn more about using civil rights law as a tool to improve public health outcomes?

García: I am on the faculty at Charles Drew University. Our goal is to develop best practices for health professionals to work with civil rights attorneys to promote better understanding of the civil rights dimension of the challenge of health inequities, and to alleviate these inequities. Public health research too often stops at documenting health inequities, without addressing what to do about it. The City Project regularly publishes our health justice policy reports and articles on our website.

PHLN: If you weren’t working in civil rights based public health law, what would you likely be doing?

García: Making handmade Shaker-style wooden furniture, and riding my bike.

PHLN: Have you read any good books lately?

García: A new wave of studies on the Civil Rights Movement is emerging this year, which marks the 60th anniversary of Brown v. Board of Education, the 50th anniversary of the Civil Rights Act of 1964, and the 20th anniversary of Executive Order 12898 on environmental justice and health. Gavin Wright, an economic historian at Stanford, wrote Sharing the Prize: The Economics of the Civil Rights Revolution in the American South (2013). He documents how the Civil Rights Movement has improved outcomes in health, education, and jobs. Bruce Ackerman, a law professor, analyzes the impact of lawyers, courts, organizing, landmark Congressional legislation, the President, administrative agencies, and the 1968 election in The Civil Rights Revolution (2014).

Two books about health inequities and civil rights are D.B. Smith, Health Care Divided: Race and Healing a Nation (1999), and J. Dittmer, The Good Doctors: The Medical Committee for Human Rights and the Struggle for Social Justice in Health Care (2009)

PHLN: What activities do you enjoy when you’re not practicing public health law?

García: I have been working on making a houseful of handmade Shaker-style wooden furniture. I ride my road bike along the beach and my mountain bike in the mountains.

PHLN: Is there anything you would like to add?

García: Discrimination based on race, color, or national origin is a root cause of health inequities, and a comprehensive strategy to eliminate these inequities must incorporate a strong civil rights component by government agencies and recipients of federal and state funds. CDC and other federal agencies can ensure voluntary compliance with civil rights laws through the many avenues they have available. This includes data collection, analyses, and publication; planning; rules, regulations, and guidance documents; review of funding applications; contractual assurances of compliance by recipients; compulsory self-evaluations by recipients; compliance reviews after funding; investigation of administrative complaints; full and fair public participation in the compliance and enforcement process; and denial or termination of funding. The United States Department of Justice can enforce civil rights requirements in court. The struggle continues.

[Editor’s note: Find more information about The City Project’s work to improve access to physical education by reading Physical Education is a Right: The Los Angeles Unified School District Case Study Assessment, Implementation and Impact, Physical Education and Student Activity: Evaluating Implementation of a New Policy in Los Angeles Public Schools 45(1) Annals of Behavioral Medicine 122–30 (2013), and other peer reviewed journal articles related to The City Project’s mission and work.]

The first reader to correctly answer the Quiz question will be given a mini-public health law profile in the July 2014 edition of the News. Entries should be emailed to PHLawProgram@cdc.gov with “PHL Quiz” as the subject heading. Entries without the heading will not be considered. Good luck!  

Public Health Law News Quiz Question: June 2014

According to the June 2014 edition of the News, which state recently enacted a law requiring high school students to learn CPR?

Nancy Bailey

Response to the May 2014 Public Health Law News Quiz: Cook County, Illinois.

“I am retired. [I] have a Bachelor of Science degree in Foods and Business. [I] previously worked as a diet technician, food supervisor, food service director, and sanitarian at two different county health departments, which involved a lot of different areas (e.g., food, water, and wells). [I am] interested in public health because it effects every human being (I have a dad who is ninety-two and a grandchild who is -two). Laws that affect our health are important for everyone. I’m interested in all the health news that affects us all.”

Ohio: Health department may regulate plumbing
Adams Quality Heating and Cooling, Erie County Health Dept
Court of Appeals of Ohio, Sixth District, Erie County
Case No. E-13-040
Decided 05/30/2014
Opinion by Judge James D. Jensen

Federal: Consent decree in release of toxic substances from metal plating facility
State of California Dep’t of Toxic Substances Control v. Renu Plating Co
United States District Court, CD, California
Case no. CV13-01508 (CWx)
Filed 05/07/2014
Opinion by District Judge Manuel L. Real

Federal: Toxic substance settlement fair, though lack of ‘arm’s length’ bargaining
United States v. 3M Co.
United States District Court, S.D. Ohio, Western Division
Case No 3:14-cv-32
Filed 05/08.2014
Opinion by District Judge Walter H. Rice

Federal: Ecuadorian plaintiffs failed to state injury in fact in crop spraying case
Arias v. DynCORP
United States Court of Appeals, District of Columbia Circuit
Case no. 13-7044
Decided 05/30/2014
Opinion by Senior Circuit Judge Laurence H. Silberman

“This practice has no rational reason other than to drive people with HIV and AIDS away from their plans,” said Wayne Turner, a staff lawyer with the National Health Law Program.