October 2014—Public Health Law News

Law review article on chemical exposure law and policy. Using Law and Policy to Address Chemical Exposures: Examining Federal and State Approaches, published in Capital University Law Review 2014;42(1):97—141, examines both federal and state policy approaches for addressing chemical exposures, with particular focus on laws most relevant to consumer and household exposures. 

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Tribal Consultation Committee and nominations. The National Institutes of Health (NIH) announces the establishment of a Tribal Consultation Advisory Committee (TCAC). The NIH TCAC will provide recommendations on developing relevant NIH policies, programs, and priorities. NIH is seeking nominations for 17 TCAC members, 12 area representatives, and 5 at-large members. Nominations are due October 17, 2014.

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Webinar—Shifting Paradigms: Medical Ethics, Public Health Ethics. CDC's Public Health Law Program (PHLP) and the American Health Lawyers Association are co-hosting a three-part webinar series that will give an overview of medical ethics, public health ethics, and the law and highlight ethical issues related to patient safety and healthcare-associated infections. An interactive roundtable will enable participants to join in the discussion. The first webinar will take place Wednesday, October 29, 2014, from 2:00 to 3:30 pm (EDT) and will offer CLE credit. PHLP has reserved 200 free registration spaces. Register as soon as possible to ensure you get a spot. 

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CDC Public Health Law Program internships and externships. These internships and externships consist of 9–14 weeks of professional work experience, for academic credit, with PHLP in Atlanta, Georgia. The program features rolling start and completion dates throughout the academic year. It exposes law students to the public health field, allowing for exploration of the critical role law plays in advancing public health goals. The unpaid internships and externships are open to rising-third year and third year law students who are interested in exploring careers in public health law. Externs must receive academic credit. Spring 2015 applications must be submitted by November 1, 2014.

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CDC Health Advisory: Ebola. CDC released an Official Health Advisory, Evaluating Patients for Possible Ebola Disease: Recommendations for Healthcare Personnel and Health Officials. Sign up for HAN email updates.

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Tribal Codewriting Clinic. William Mitchell College of Law provides free code-writing and revision services for tribal nations. Students in the clinic work in teams of two  or three under the supervision of a full-time Indian law professor to respond to specific requests pertaining to tribal codes (statutes), regulations, court rules, and other documents. Each project is custom-designed for the needs of the tribal nation. The clinic has a special emphasis on criminal law, but welcomes projects on any subject area. For more information about the Tribal Development Clinic, contact Professor Sarah Deer at sarah.deer@wmitchell.edu.

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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.

Menu of state public health department accreditation laws. [PDF 287KB] PHLP published “Menu of State Public Health Department Accreditation Laws.” The Menu offers a comprehensive summary, including state statutory and regulatory language, of state laws that reference accreditation and can be a useful resource for policy makers and public health practitioners interested in the legal methods by which other states have required, encouraged, or financed public health department accreditation.  

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Hospital presumptive eligibility resources. Hospital presumptive eligibility (hospital PE) is a policy option that allows hospitals to provide temporary Medicaid coverage to individuals likely to qualify for Medicaid. Effective January 2014, the Affordable Care Act expanded the scope of the policy to allow hospitals to make presumptive eligibility determinations in every state for all Medicaid-eligible populations. These resources summarize Medicaid hospital PE programs and can help public health practitioners and attorneys practicing in a hospital setting understand state hospital PE implementation options and how hospitals can expand presumptive eligibility to new populations.

• Hospital Presumptive Eligibility Issue Brief [PDF 324KB]
• Hospital Presumptive Eligibility Research Anthology [PDF 259KB]

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Social Impact Bonds Issue Brief. [PDF 315KB] Following a wave of states turning to social impact bonds (SIBs) to help finance innovative public health initiatives, two bills recently introduced in the US House of Representatives and Senate, both with bipartisan support, would authorize greater federal participation in states’ efforts to use SIBs to promote public health. As part of PHLP’s ongoing efforts to monitor the development and use of these innovative public health financing tools, PHLP created this issue brief to outline key provisions and authorities of the Social Impact Bond Act (HR 4885) and the Pay for Performance Act (S.2691).

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National Disability Navigator Resource Collaborative. The American Association on Health and Disability announced that the National Disability Navigator Resource Collaborative (NDNRC) received funding for a second year. The collaborative will continue to be made possible by an additional one-year grant from the Robert Wood Johnson Foundation. The NDNRC is an initiative that provides cross-disability information and support to navigators and other enrollment specialists, thereby ensuring people with disabilities receive accurate information when selecting, enrolling, or reenrolling in insurance through Affordable Care Act Marketplaces.

National: A new attack on antibiotic resistance
New York Times   (09/29/2014)   Editorial Board

President Obama signed an Executive Order Combating Antibiotic-Resistant Bacteria (the Order) on September 18, 2014. The Order outlines a new strategy to curb the misuse of antibiotics and created an inter-agency task force lead by three cabinet secretaries who will submit a five-year action plan by February 15, 2015.

The US Food and Drug Administration has already implemented a voluntary plan that could eliminate almost all use of antibiotics to enhance food animals' growth. All 26 major livestock antibiotic manufacturers have agreed to label their drugs so that animal growth is no longer a valid use of their drugs. When the labels prohibit use for animal growth, it will be illegal to use the drugs for that purpose. 

Among humans, antibiotics are often overused or prescribed for conditions they can't cure, such as the common cold or other viral diseases. As antibiotics are overprescribed, bacteria become resistant to the drugs more easily. The administration hopes to encourage more targeted antibiotic prescriptions, for example prescribing a specific antibiotic, rather than a broad spectrum antibiotic. The administration also hopes to increase new antibiotic development with incentives such as federal financial support.

[Editor's note: Read Executive Order—Combating Antibiotic-Resistant Bacteria.]

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National: The ultimate in open government: unlocking the laws
Govexec.com   (07/08/2014)   Michael Grass

Most states and jurisdictions have contracts with large legal information portals, such as Westlaw or LexisNexis, that store local government information. Because of these sites' platforms, users cannot permalink specific code sections.

A permalink is a hyperlink that permanently links to a specific Internet site or site section. When permalinks are unavailable for specific code sections, users can link only to the main code page. From there, users must search for the relevant section or sections.

In some instances, jurisdictions are prohibited from simply releasing raw data of their jurisdiction's official legislation, code, and regulations because of contractual obligations with the host information portal. Inability to release data creates a delay or barrier to public access to information.

Virginia and the District of Columbia have worked to put codes in more tech-friendly and flexible formats for searching and linking. The District is part of a coalition of municipalities and open-government advocates across the nation that seeks to make it easier to host official law codes, legislation, and regulations on open-source technology.

“We hope this isn't a flash in the pan and want something that's sustainable over the long term. We hope that other states and municipalities can benefit and contribute,” said V. David Zvenyach, the DC Council's general counsel. Zvenyach is a member of the open-data “free law” coalition and has developed coding applications in his official position and on his own. The “free law” coalition also includes local government officials in Boston, Chicago, New York City, and San Francisco.

[Editor's note: Learn more about the US Open Data Institute and access online legal archives of Virginia laws that are working to follow the open-law model, Richmond Sunlight and Virginia Decoded.]

California: Under new affirmative sexual consent law, only ‘yes' means ‘yes'
Gov. Brown signs bill to reduce college sexual assaults
Los Angeles Times   (09/28/2014)   Patrick McGreevy
[Editor's note: Read California's Senate Bill No. 967.]

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California: Ban on plastic bags to protect environment
Statewide ban on disposable plastic bags is signed into law by Brown
Los Angeles Times   (09/30/2014)   Patrick McGreevy and Melanie Mason
[Editor's note: Read California's Senate Bill No. 270.]

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Georgia: Felony convictions in peanut butter salmonella case
Peanut executive found guilty in salmonella trial
Wall Street Journal   (09/19/2014) Jesse Newman
[Editor's note: The United States District Court for the Middle District of Georgia, Albany Division is expected deliver sentencing in the coming months. Read the Jury's Special Verdict in U.S. v. Parnell, 1:13-CR-12. [PDF 1.85MB]]

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Tennessee: Issues with presumptive Medicaid eligibility continue
Twin babies' $200k hospital bill illustrates TennCare flaws
The Tennessean   (10/04/2014)   Tom Wilemon

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Utah: Salt Lake City requires drive thru service for bicyclists
Salt Lake City okays fast food drive thru service for bicycle riders
Good4Utah   (9/30/2014)   Brian Carlson

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National: Insurers filing lawsuits against hospitals challenging surprise charges
After surgery, surprise $117,000 medical bill from doctor he didn't know
New York Times   (09/20/2014)   Elisabeth Rosenthal

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National: Heroin deaths increased, but use appears to be lower than other drugs
Hardly anyone uses heroin. So why do we keep freaking out about it?
Washington Post   (10/08/2014) Christopher Ingraham
[Editor's note: Read CDC's MMWR, Increases in Heroin Overdose Deaths -28 states, 2010 to 2012, 2014;63(39):849–54. Also read how New Jersey has worked to pass bills bolster substance abuse treatment, Inside NJ's historic push to tackle heroin epidemic, nj.com, by Ashley Peskoe and Stephen Stirling (09/17/2014).]

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National: Warning letters sent to three companies selling Ebola virus products
FDA warns companies about fake Ebola drugs
CNN   (09/26/2014)   Saundra Young
[Editor's note: Read the FDA's Ebola virus emergency preparedness web page.]

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National: Involuntary isolation and quarantine legal in every state
Ebola quarantine is perfectly legal
CNN   (10/06/2014)   Paul Callan
[Editor's note: Learn more about specific isolation and quarantine laws and regulations.]

Interview with Donna Levin

Title:
National director of the Network for Public Health Law

Education: 
BA, Stony Brook University
JD, Northeastern University School of Law

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PHLN: Please describe the Network for Public Health Law (the Network)? 

Levin: The Network provides no-cost legal technical assistance, training, and resources to public health practitioners, lawyers, advocates, and policy makers. We help those in the public health community navigate the legal issues tied to health reform, emergency preparedness and response, injury prevention, health data privacy, and a host of other areas. The Network is also a connector for those in public health. If we can't help you with a particular issue, we can connect you with someone who can.  

The Network comprises five regional offices across the country, and this is crucial to our role as connector. The Network is a national initiative of the Robert Wood Johnson Foundation.

PHLN: What are some of the public health law issues the Network is focusing on currently?

Levin:
Well, the Ebola outbreak in West Africa has put everyone involved with population health around the globe on high alert. As most of us are now aware, the first Ebola case diagnosed in the US was reported a couple weeks ago in Dallas. Unfortunately, the patient has passed away, and a nurse treating him has contracted the virus. While it's unlikely Ebola will spread here, many in public health are preparing for that scenario. Since the beginning of the outbreak, James Hodge and his team at the Network's Western Region have been developing and continuously updating emergency legal preparedness resources that provide information about travel restrictions, screening measures, isolation and quarantine and other aspects critical to response.

Some of our other priority issues include heroin and prescription drug overdose prevention, the Food Safety Modernization Act and its many provisions, and Affordable Care Act litigation and implementation.

PHLN: In August 2014, you gave the keynote address at the annual conference of the National Association of Local Boards of Health (NALBOH). What were some of the topics covered at the conference and how are they related to law? 

Levin: Topics included authority and governance of local boards of health, an area where it is imperative that NALBOH members and staff understand the legal basis for authority to act and the requirements of governance. In addition, several sessions addressed specific legal areas, including board of health liability and legal immunity; regulation of tobacco and E-cigarette products; and stewardship and use of data and health information. One session was dedicated to a public health law panel with several attorneys and NALBOH members in a highly interactive discussion about the importance of law as a tool for public health and the resources available to local boards of health.

PHLN: Why is board of health authority such an important, and at times tense, aspect of public health law?

Levin: Boards of health are administrative agencies in the Executive Branch of government. Authority is granted to these boards both in state constitutions and laws, and the extent of that authority might not be clear. Questions arise as to when the authority of the local board is preempted or reserved to another level of government and whether the board has exceeded the reach of its authority in actions it takes to protect the public's health.

PHLN: Can you give some examples of how board of health authority has been challenged recently?

Levin: Recently, the New York State Court of Appeals ruled that the New York City Board of Health did not have authority to prohibit the sale of sugary drinks in containers over 16 ounces. In another recent case, the Supreme Court of Kentucky found that the Bullitt County Board of Health's regulation of smoking in public workplaces exceeded its authority, determining that the Board had acted impermissibly as the legislative and not executive branch of the government. 

On the bright side, New York City prevailed in a challenge by parents who objected to the exclusion of their unimmunized children from school when there were cases of vaccine preventable disease at the school. In addition, one parent also argued that her child was improperly denied a religious exemption.

PHLN: Can you tell us more about the NYC vaccination case and its potential public health repercussions?

Levin: The decisions in these three cases are being appealed and are expected to be upheld.  However, if the authority of a state or local board of health to exclude children who are unimmunized from school is struck down or limited in any significant way, this will likely result in more children who are not vaccinated. A greater number of unvaccinated children and the ability of those children to attend school will result in outbreaks of serious, highly communicable disease, both among the school population, and then spreading to the families and communities of these infected children. 

PHLN: How are these and other issues being covered at the Public Health Law Conference, which is taking place this week?

Levin: Our theme at this conference is “Intersection of Law, Policy and Prevention,” and there are five tracks that organize 40 sessions under this theme, including Prevention and the Role of Law; Legal Interventions to Promote Public Health; Data Management and Public Health Implications; Emerging Issues in Public Health Law; and Public Health Legal Preparedness and Response. 

The pre-conference sessions occurring the day before the formal conference starts, the 40 concurrent sessions during the two day conference, and the jam-packed roundtable sessions on the second morning will all address issues having to do with public health authority and the use of law as a tool to advance public health and move the nation towards a culture of health. Tobacco control, vaccination, and obesity prevention are only a few of the issues covered at the conference. Other topics include drug overdose prevention; newborn screening; training for practitioners and lawyers; firearms and mental health; traumatic brain injury in youth sports; tribal environmental health; data and the law regarding security, technology, privacy, and electronic health records; and the health in all policies' approach and the law.

PHLN: What other projects is the Network currently involved with? 

Levin: We will launch a 50-state resource that lays out legal and policy options to improve oral health. Poor oral health has severe negative repercussions on overall health, productivity, and quality of life. According to the Department of Health and Human Services, in 2009 over 830,000 emergency room visits were the result of preventable dental conditions, and poor oral health is associated with diabetes, stroke, and respiratory disease. Many communities around the country have limited access to dentists. One possible legal way to address this lack of access is by expanding the scope of practice of dental auxiliary professionals, which would make it possible for them to perform certain services. This is one option in many that we examine with the potential to improve access to care. Readers can find more on this at www.networkforphl.org/topics__resources/topics__resources/oral_health/.

PHLN: As the Network's director, what are your day-to-day job responsibilities?

Levin: My job is to oversee the national coordination of the Network. This means constant contact with the directors at our five regions and the staff at our coordinating center. My day-to-day responsibilities include everything from facilitating discussions with our various partners on key initiatives and developing guidance and procedures, to reviewing the legal resources that the Network makes available on our website and doing outreach to the public health community—I am on the road a lot, attending meetings like the National Association of County and City Health Officials, NALBOH, and the Association of State and Territorial Health Officials annual conferences to learn about what's needed in the field and how the Network can help. 

PHLN: Please describe your career path. 

Levin: My undergraduate studies were in English literature, and I decided to go to law school because I saw the practice of law as a way to address inequities. Like most people, basic fairness has always appealed to me.

Northeastern has a cooperative-style curriculum, with graduates working at four different semester-long legal internships. At one of my internships at Greater Boston Legal Services, I assisted in efforts to obtain expedited Medicaid for individuals who needed emergency care and a systematic process for reviewing and approving emergency Medicaid coverage. This experience contributed to my growing interest in public health.

Following law school, I accepted a position as a staff attorney in the Office of General Counsel in the Massachusetts Department of Public Health—I was a staff attorney for the first ten years and general counsel for the following 26 years. I had oversight of the Office of General Counsel and led our team in providing guidance on statutory and regulatory authority, the development of major policy initiatives of the Department, and legislation affecting public health.

My work at the Massachusetts Department of Public Health was extremely varied, including but not limited to the areas of newborn screening; genetics and privacy laws; health insurance consumer protections; biotechnology; emergency public health response; public health aspects of health care and healthcare cost reform; and medical use of marijuana.

PHLN: How is your experience as general counsel at the Massachusetts Department of Public Health and counsel to Massachusetts' Public Health Council (PHC) been an asset in your position at the Network?

Levin: As general counsel and counsel to PHC, I had the opportunity to work on a great range of public health and public health law matters. The Massachusetts Department of Public Health had authority and responsibility in numerous areas, including the operation of four public health hospitals, the state Registry of Vital Statistics and the State Laboratory Institute, as well as policy and regulation in many areas, such as healthcare quality; health cost containment; environmental health; maternal, child and family health; infectious disease, including HIV/AIDS; chronic disease; and data and privacy.  Consequently, I am familiar with the legal issues facing state, local, and tribal health departments, and I am in a better position to understand what kind of technical assistance and resources will be most helpful. I am also in a better position to assist with outreach to these authorities and others working to improve the public's health.

PHLN:  What drew you to public health law practice?

Levin: I am a child of the ‘60s—for me law is about social justice, and to me, social justice included access to quality health care and protecting individuals' health. Laws can dramatically improve the health of many people at once. For example, smoke-free laws protect millions of people from exposure to second-hand smoke, which can cause lung cancer and cardiovascular and respiratory diseases.

PHLN: If you weren't working in public health law, what would you likely be doing?

Levin: The path not taken was marine biology.

PHLN: Have you read any good books lately?

Levin: Definitive research is not conclusive, but I think it will someday prove that it is very healthy to laugh. I prescribe Let's Explore Diabetes with Owls by David Sedaris.  

PHLN: What are your hobbies?

Levin: Throwing pottery—although it has been some time since I had the time—and finding beach glass. I have learned there is a name for us collectors, “seaglunkers,” from the fusion of “sea glass” and “spelunker.”

PHLN: Is there anything you would like to add?

Levin: I am looking forward to meeting as many of my public health colleagues as possible at the National Public Health Law conference.  If you see me, please stop and say hi.

[Editor's note: The Network and the Public Health Law Program work together on a variety of issues, including research, technical assistance, and educational webinars. Network membership is free and open to those working in public health. Webinars co-hosted by the Network and PHLP are free and archived on the Network's website.]

The first reader to correctly answer the Quiz question will be given a mini-public health law profile in the November 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!  

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Public Health Law News Quiz Question: October 2014

According to the October 2014 Announcements, when are applications for the Public Health Law Program spring 2015 internships and externships due?

David J. Miller, Jr.

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September Question: According to the September 2014 top stories, what does “MAHC” stand for?

Winning response: 
The Model Aquatic Health Code

Employment organization and job title:
Emergency Management Specialist, Kidney Community Emergency Response (KCER) program, End Stage Renal Disease Network Coordinating Center (Kcercoalition.com).

A brief explanation of your job:
Federally contracted by the Centers for Medicare and Medicaid Services, I support comprehensive emergency management programs and initiatives for the 18 End Stage Renal Disease Networks that cover the United States and its territories through policy and plan development, training, exercises, and incident management assistance. I also manage eight committees of subject matter experts, collaborate on dialysis facility and patient preparedness resources and programs, and advocate for this vulnerable dialysis and transplant population.

Education:
I have a bachelor of science with dual majors in biology and philosophy, a master of public health in health policy and management, a post-graduate certificate in emergency preparedness, and a certificate in theology. I am certified in public health by the National Board of Public Health Examiners, in homeland security by the American Board for Certification in Homeland Security, and as an advanced emergency medical technician in critical care.

Favorite section of the News:
Briefly Noted provides a concise overview of state and local public health law stories that I might have missed in the regular news cycle. 

Why are you interested in public health law?
I am most interested the development of conscientious, prudential policy where considerations for the public health, emergency medicine, and emergency management intersect, especially in the realm of disaster preparedness and response. I also earned an A in healthcare law.   

Do you have any hobbies?
Away from paid work, I am a medic, staff officer, and emergency manager in my local fire department and volunteer with the Medical Reserve Corps, the Catholic Church, and in the Boy Scouts of America.  I enjoy extensive hiking, camping, and skiing—anything outdoors.
 

Iowa: Department of Human Services correctly applied budget cuts to providers
Exceptional Persons, Inc. v. Iowa Dep't of Human Services
Court of Appeals of Iowa
Case No. 13-0866
Opinion by Judge Amanda Potterfield

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Michigan: Questions of fact for train injury under Federal Employer's Liability Act       
Trout v. Grand Trunk W. R.R. Co.
Court of Appeals of Michigan
Case No. 312727
Filed 9/25/2014
Opinion per curiam Judge Jane M. Beckering, Judge Joel P. Hoekstra, and Judge Elizabeth L. Gleicher

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Ohio: Commission may revoke liquor license for failure to comply with smoking laws
Suburban Inn, Inc. v. Ohio Liquor Control Comm'n
Court of Appeals of Ohio, Tenth District, Franklin County
Case No. 13AP-811
Filed 09/30/2014
Opinion by Judge Susan Brown

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West Virginia: Magistrates, not municipal courts, have authority to euthanize dog
Robinson v. City of Bluefield
Supreme Court of Appeals or West Virginia
Case No. 13-0936
Filed 10/02/2014
Opinion by Justice Menis E. Ketchum, II

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Federal: Motion for Summary Judgment granted, though Ski Safety Act does not 
apply to sledding slopes 
Clark v. U.S.
United States District Court, District of New Mexico
Case Nos. 12-1160 MV/KBM, 12-1176 MV/KBM
Filed 9/25/ 2014
Opinion by District Judge Martha Vázquez
[Editor's note: Read New Mexico's Ski Safety Act, NMSA §§ 24-15-1–14.]

Waldo Jaquith, the director of the US Open Data Institute

“They were all probably really cool back in 1994, but then they stopped working on them,” said Waldo Jaquith, the director of the US Open Data Institute and developer behind two Virginia-focused websites, Richmond Sunlight and Virginia Decoded, of many jurisdictions' online law and regulation repository systems.