March 2015—Public Health Law News

Q and A: Impact of King v. Burwell on Health Reform. On March 4, 2015, the US Supreme Court heard oral arguments in the King v. Burwell case, which challenges the Affordable Care Act’s health insurance subsidies for middle- and low-income Americans. If the Supreme Court determines that the subsidies are illegal when administered through the federally facilitated insurance exchanges operating in 34 states, millions of Americans may no longer be able to afford coverage. Many believe this case is the single largest threat to healthcare reform. Attorney Jane Perkins from the Network’s Southeastern Region has been following the developments in King v. Burwell and explains the details of the case and its implications for public health in this Q&A.

Webinar—When Public Health Goes to Court: Judicial Structure and Functions. The Public Health Law Program (PHLP) and the Network for Public Health Law are co-hosting a three-part webinar series on the judiciary’s role in public health. The third webinar in the series will take place Thursday, April 2, 2015, at 1:00–2:30 pm (EDT). The webinar will examine the judicial system’s role in a public health emergency. It will feature presentations on how a judge might approach quarantine and isolation hearings and the subsequent issuing of orders during a public health emergency. The webinar will also give an overview of information related to courts’ emergency powers, the need to keep courts open during emergencies, and resources related to public health emergency for judges. The webinar is free and CLEs are available for some attendees.

Webinar—Health System Transformation: The Changing Legal Landscape. PHLP and the American Bar Association Health Law Section are co-hosting a three-part webinar series focused on three components of health system transformation: social impact bonds, workplace wellness programs, and electronic health information. The second webinar in the series will take place Monday, April 20, 2015, 1:00–2:30 pm (EDT) and will discuss the background, data, and tools available to practitioners and policy-makers involved in drafting, analyzing, and implementing state healthcare-associated infection laws.

Community Health Status Indicators (CHSI). CDC released the updated CHSI, an online application that produces public health profiles for all 3,143 counties in the United States. The redesigned web-based tool includes updates regarding peer county groups, health status indicators, a summary comparison page, and US Census tract data and indicators for subpopulations (age groups, sex, and race/ethnicity) to identify potential health disparities. All indicators are benchmarked against those of peer counties, the median of all US counties, and Healthy People 2020 targets.

Electronic Health Information Issue Brief and Presentation. Electronic health information has transformed the efficiency, capacity, and functions of the US health system. As health information technology (HIT) has progressed, the law has changed to allow HIT to serve traditional public health functions. This issue brief and slide deck summarize federal and state laws supporting the use and sharing of health data within the evolving public health HIT landscape.

Menu of Prescription Drug Time and Dosage Limit Laws. [PDF - 484KB] PHLP has published an inventory of state legal strategies addressing prescription drug time and dosage limit laws on prescribing or dispensing controlled substances. This menu includes laws that set time limits, such as those governing supply per hour or per day, as well as dosage units or number of pills allowable for a controlled substance.

Ebola and the Law: Legal Preparedness for Physicians and Hospitals. [PDF - 384KB] This issue brief describes case law, statutes, and information about CDC guidance for healthcare and public health attorneys to address questions and concerns about legal preparedness for infectious disease outbreaks.

State Ebola Protocols. PHLP has updated this table of state Ebola protocols to help legal professionals and policy makers prepare for and respond to Ebola-related situations.

Telehealth Laws Map. This newly released dataset from Public Health Law Research’s LawAtlas presents information about the ability of non-physician providers to provide primary care though telehealth and be reimbursed for those services across all 50 states and Washington, DC.

Ebola’s not over for healthcare’s volunteers

Wired (03/04/2015) Maryn McKenna

The Presidential Commission for Bioethics released Ethics and Ebola: Public Health Planning and Response in February 2015. The report examines ethical issues related to helping other countries respond to large-scale epidemics, such as the Ebola epidemic in West Africa, and how to prevent, respond to, and prepare for similar epidemics in the US. Specifically, the report discusses ethical issues related to quarantine and isolation, sending aid to affected countries, and conducting clinical trials.

The report argues against imposing quarantine on individuals who are not infectious. It also encourages greater support for healthcare workers returning to the US after providing aid abroad. Many healthcare workers have reported feeling ostracized upon their return home.

Dr. Mark Spencer, who developed Ebola symptoms after returning home to New York City, described his experiences upon returning to the US. “My US colleagues who have returned home from battling Ebola have been treated as pariahs [outcasts],” said Spencer. “I believe we send the wrong message by imposing a 21-day waiting period before they can transition from public health hazard to hero. As a society, we recognize the need for some of our best-trained physicians and public health professionals to participate in a potentially fatal mission because failing to stop the epidemic at its source threatens everyone. We should also have faith that these professionals will follow proven, science-based protocols and protect their loved ones by monitoring themselves. It worked for me, and it has worked for hundreds of my colleagues who have returned from this and past Ebola outbreaks without infecting anyone.”

[Editor’s note: Read the Presidential Commission for Bioethics’ report, Ethics and Ebola: Public Health Planning and Response and learn more about Ebola and State Ebola Protocols.]

Nebraska: Dakota County health assessment reveals community’s health concerns
Dakota County Star (2/20/2015) Alexandra Krula
[Editor’s note: Read Dakota County, Nebraska’s 2014 Community Health Needs Assessment Report [PDF - 1.1MB]. Also, learn more about community health needs assessments [PDF - 188KB].]

Oregon: College rape case shows a key limit to medical privacy
NPR (3/9/2015) Kristian Foden-Vencil

Texas: Texas nurse who contracted Ebola sues hospital company
CNN (3/2/2015) Elliot McLaughlin and Holly Yan

National: FDA tests turn up dairy farmers breaking the law on antibiotics
NPR (3/8/2015) Dan Charles
[Editor’s note: Read the FDA report, Milk Drug Residue Sampling Survey [PDF - 412KB].]

National: EPA rules for wood stoves get updated
The Columbus Dispatch  (3/9/2015)  Laura Arenschield
[Editor’s note: Read the EPA’s rules for wood stoves and heaters.]

National: Physicians aware of but don’t necessarily use state drug databases
Claims Journal (3/3/2015)  
[Editor’s note: Read Most Primary Care Physicians Are Aware Of Prescription Drug Monitoring Programs, But Many Find The Data Difficult To Access, Health Affairs, March 2, 2015 (subscription required).]

National: Powdered alcohol wins U.S. approval
Wall Street Journal (3/11/2015) Tripp Mickle

National: Sharing patient records is still a digital dilemma for doctors
NPR (3/6/2015) Eric Whitney
[Editor’s note: Learn about federal and state laws supporting the use and sharing of electronic health information.]

National: Three states and two tribes to get $27 million to fight childhood hunger
New York Times (3/3/2015) Ron Nixon
[Editor’s note: Read about the USDA’s grants to end childhood hunger.]

National: What ending health subsidies means
New York Times (3/7/2015)  

American Indian/Alaska Native: Native American tribes and the future of marijuana
Government Executive (2/20/2015) Debra Bruno

International: Here’s the staggering healthcare cost of hormone-disrupting chemicals
Time (3/5/2015) Mandy Oaklander

Title:
Co-founder and Executive Director of the Public Good Law Center

Education:
Yale University, BA; Lesley University, MEd; UC Berkeley School of Law, JD

PHLN: Please describe your career path.

Mermin: A long and winding road. I began as a sixth-grade teacher. Somehow I ended up as a public health and consumer protection lawyer.

PHLN: What encouraged you to move from elementary education to public interest law?

Mermin: I would say the common thread is about helping people to see things in a way they hadn’t seen them before. But to answer your question, my greatest interest as a teacher was in fighting injustice. That made the move to law a logical step.

PHLN: How did you begin working on public health law issues?

Mermin: Well, there I was, a deputy attorney general at the California Department of Justice, and I’d somehow become the go-to constitutional lawyer for the teams in the office working on tobacco control, then alcohol advertising, then alcoholic energy drinks, then junk food marketing. I was a one-man vice squad.

When I left the AG’s office, folks in the nonprofit sector with whom I’d worked on some of those issues approached me and asked if I’d be willing to help them. I politely declined. They said, “Pretty please?” I respectfully demurred. They said, “Just one thing.” Bowing to the force of their persuasive appeal, I said “OK, one thing.” Well, that one thing was the Legal Primer for the Obesity Movement. And the rest is history.

PHLN: What is the Public Good Law Center, and what kind of work do you do there?

Mermin: Public Good is an organization dedicated to the idea that the law needs to work for everybody. Our particular expertise, as it has developed over time, is helping governments at all levels—local, state, and federal—enact and defend public health and consumer protection laws. Often at the behest of NGOs, we have worked with local governments and states across the country in shaping ordinances and statutes to make them able to survive lawsuits, then helping to defend those lawsuits through strategic consultation and by filing amicus briefs in favor of the law in question.

We’ve done the same with quite a number of federal agencies: participating in rulemaking proceedings, providing counsel, and helping defend new regulations once they’ve been issued and challenged in court. As skilled and dedicated as some folks in government are, there are times when their subject matter expertise reaches its limit. And the people who defend new laws in court are usually not the ones who write them—they may be generalists and in need of support in navigating some pretty treacherous legal waters.

It’s very clear that there’s not going to be any shortage of resources or support for the industries challenging a new law or regulation. So it can make an enormous difference for that law or regulation to get some support of its own.

PHLN: So, you offer support to the public sector . . . on behalf of the nonprofit sector?

Mermin: Something like that. Government agencies hear every day from the industries they regulate. Local governments can be cowed into giving up on legislation they believe in deeply by threats of a lawsuit from a well-heeled industry. We just try to even up the balance a little.

PHLN: Are you saying people should appreciate government? That’s not a sentiment you hear very often these days.

Mermin: I’m no rosy-eyed idealist when it comes to government. Let’s just say that I’ve seen the good and the bad, both in the public sector and the private sector. But I do think that when someone in public service does something effective, and particularly when they exercise real courage in, say, establishing a much-needed new policy even though they know it means they’ll get sued and have to fight for that law tooth and nail—I think the folks who appreciate the new policy should express their support. It can make a real difference to those within government.

Remember, public employees hear every day from the people who oppose their policies. It can have quite an effect if they also hear from the people who support those policies. And, at base, that’s one thing Public Good tries to do: give a shot in the arm to those who are developing and implementing new policies designed to make society better.

It’s nothing new for me. For years, I’ve wanted to establish a “Thank A Teacher Day” when everybody sits down and sends a message of appreciation to some teacher they’ve had who made a difference in their lives. Maybe this stems from the same impulse.

PHLN: Appreciation for public service.

Mermin: Right.

PHLN: Does Public Good specialize in any particular areas of law?

Mermin: We tend to work with the most treacherous legal waters for public health advocates. Our specialty is constitutional issues, most frequently the First Amendment (freedom of speech) and preemption (the question whether a state or federal law trumps or voids a local or state law).

So, let’s say a city passes a law requiring warning signs in every store where tobacco is sold. The city would need to analyze whether the warning compels speech in violation of the First Amendment or the state constitution, and it would have to determine whether a federal or state law preempts the warning requirement. Those analyses are very likely to be put to the test by a lawsuit from the tobacco industry. We can and do help with that entire process.  

One area of law we’re particularly involved in is what many are calling the “Lochnerization” of the First Amendment—that is, misinterpreting the First Amendment’s free speech clause to strike down public efforts that would make people’s lives better. A hundred years ago, a thin Supreme Court majority stood in the way of public efforts to establish worker safety and child labor laws, misinterpreting the Fourteenth Amendment in the Lochner case and many others to compel a mythical “freedom of contract,” or, to use an ungainly term, “economic substantive due process.”

Now we have another slim Court majority misinterpreting the First Amendment—a crucial provision meant to preserve the freedom of conscience and of art and of political speech—to put the freedom to advertise cigarettes or promote junk food in schools above public health.

Eventually, I’m confident, this approach will also be discredited. But, in the meantime, we’ve got a lot of work to do.

PHLN: What does an average day hold? What are some things you’ve worked on recently?

Mermin: Any given day can bring quite a spectrum of activities. I might be working on an amicus brief to file in the California Supreme Court on the importance to consumers of knowing how the products they buy are made and what they contain, or a brief in the US Court of Appeals for the DC Circuit supporting enhanced disclosures on tobacco products or meat packages. I might be working with the legal service providers at the East Bay Community Law Center on how to help their clients who are being hounded by debt collectors for medical debt that they don't actually owe. Or, I could be heading to Sacramento to try to craft or testify on a bill that would make it easier for local governments to require food facilities to provide their customers with nutrition information, or that would protect low-income consumers from unscrupulous debt collectors—including medical debt collectors.

On a different day, I might be heading in to meet with ChangeLab Solutions in Oakland on a new and creative way to address junk food marketing to children, or talking on the phone with the Tobacco Control Legal Consortium in St. Paul about equally creative ways to reduce tobacco use among children. And then, I might head up the hill to teach a course on Consumer Protection Law at the UC Berkeley law school.

PHLN: How has your first career as an elementary school educator changed your perspective on the law? How has it helped you?

Mermin: I taught elementary school for seven years before turning to the law. I still remember—and I often need to remind myself—what it means that the average American reads at an eight-grade level. So, when I’m working on proposed disclosures, or educational materials, or even a presentation, I try to be keenly aware of my audience. To provide them what they need to hear, and how they need to hear it, rather than what I want to say and how I feel like saying it.

I also remember how different each kid is. And how easy—and deadly—it is for a teacher to be boring. That’s my one pledge—not to be boring. I teach law school now, and that’s still my pledge.

PHLN: Is that possible in law school?

Mermin: We do our best. The key is the field trip. That, and practical tips that students can use immediately. The one about locating their family’s unclaimed property—the money forgotten in old bank accounts and handed over to the state for safekeeping—usually gets the blood flowing.

PHLN: Is teaching law school very different from teaching sixth grade?

Mermin: Well, I still try to get into my daughters’ classrooms whenever I can to teach a reading group or math group. Unfortunately, I think they may be getting a little old to let Dad come by very often these days. But, the law students are stuck with me.

PHLN: In 2009, the American Journal of Public Health published A Legal Primer of the Obesity Prevention Movement (the Primer), which you and Samantha Graff wrote. Will you briefly describe the Primer?

Mermin: Samantha, who was then director of legal research at what is now ChangeLab Solutions, approached me to help her write an overview of the sorts of constitutional considerations public health advocates needed to consider when drafting laws to fight obesity. All I really had to do was collect the legal challenges that I’d been working with at the attorney general’s office—looking at whether policies or enforcement efforts to aid in promoting public health were going to run afoul of constitutional provisions like the First Amendment, or the Supremacy Clause, or the Dormant Commerce Clause, or the Takings Clause, or even the Contracts Clause.

PHLN: That’s quite an array of clauses! And yet, the Primer has been cited repeatedly in the public health literature as well as in the mainstream press.

Mermin: It seems to have come along at the right time. There’s also a remarkable appetite out there for cross-disciplinary insights, for practitioners in one field to share basic information with people in a different field. So, public health needs to be informed not only by medicine and nutrition but also by business and psychology and, yes, law.

PHLN:We think the “law” one is particularly important.

Mermin: And so it is. Nice job by all of you.

PHLN: How might the Primer be useful for individuals interested in creating laws and policies to address obesity?

Mermin: It’s a whole lot easier to end up with a valid working law at the end of the day if you start out by checking what you can and can’t do, rather than drafting an “ideal” law and cutting it back and twisting it around later to meet constitutional requirements.

For example, in recent years, the US Supreme Court has become very protective of commercial advertising, so you don't want to start out with a bill that says, “All ads for this (entirely legal) product are banned.” The First Amendment is going to stand in the way.

PHLN: A great number of laws and regulations aimed at reducing obesity have been put forth since the Primer’s publication, including the New York ban on sugar sweetened sodas and, more recently, Berkeley, California’s Sugary Beverages and Soda Tax [PDF - 66KB]. The Primer sheds light on the obstacles to passing such laws. Can you give us some examples of laws and interventions that were implemented successfully and led to positive health outcomes?

Mermin: When we wrote the Primer, New York City and San Francisco were struggling to implement the nation’s first menu-labeling laws. As of this coming December, we will have menu labeling throughout the nation. Why is that? Well, some of it’s because the folks working to create and pass menu-labeling laws were very aware of what could and couldn't be required under the First Amendment and other constitutional provisions.

Another example: several cities around the country have now passed laws forbidding price discounts for tobacco products—because about the most effective policy for preventing youth smoking is to make cigarettes expensive. Those laws, too, were very carefully crafted and defended. The same with the soda tax in Berkeley.

In all these cases, it’s too soon to see definitive results, but—to take menu labeling—studies have shown modest changes in customers’ choices but significant increases in healthy offerings in chain restaurants. There are certain people who’re going to be astonished by the calorie count on that chef’s salad and make a different choice. Other customers, of course, will be oblivious to the calorie numbers, but they’ll still benefit from the reformulated menu offerings and, say, the removal of Trans fat.

And that’s the key, of course: each of these policy changes is one part of a much broader effort to reduce chronic disease and improve public health.   

PHLN: How can individuals interested in learning more about laws to address obesity or other public health issues learn more and get engaged?

Mermin: One great place to start is the website of ChangeLab Solutions.  They’ve got a smorgasbord of carefully crafted model policies in many areas affecting public health, and they back them all up with technical assistance on implementation. The Public Health Law Center is another terrific resource with a broad and varied menu of offerings and knowledgeable and accessible staff.

For obesity in particular, the Rudd Center at Yale does remarkable work. For tobacco, the Tobacco Control Legal Consortium and its members can’t be beat. And let’s not forget the CDC— there are  a remarkable range of resources available on CDC’s website and, of course, through its staff.

You know—just listing the resources available—it’s really worthwhile to take a moment to reflect on the change in the landscape over the past ten years. None of this was available a decade ago. There’s been a quiet revolution led by the commitment of the Robert Wood Johnson Foundation and CDC to provide these kinds of resources, to change people’s vision of what is possible to accomplish, and to bring in all kinds of people to the effort to improve public health. Present company very much included.

PHLN: You also teach as an adjunct professor of consumer law at UC Berkeley School of Law. How is consumer law related to public health?

Mermin: Intimately. That’s the great thing about consumer law and about public health law. They both affect every single one of us. Consider the health-related aspects of consumer protection: product safety, false advertising of nutritional supplements, marketing of prescription drugs for unapproved uses, health claims on everything from sugary breakfast cereals to candy bars, doctor and hospital ratings . . . I could go on.

PHLN: And you probably should. But we’re running out of space.

Mermin: Well, let me just say that not only do I believe there’s an intimate connection between these two spheres of law, and that the overlap needs to be recognized, but that I am a living example of the connection.

I started in consumer protection. Somehow the gravitational force of public health law has drawn me in—the utterly compelling nature of the fight against chronic disease. Yet, I’m still using the same tools, the same laws that I work with as a consumer protection lawyer.

That means public health advocates should know about the law of false advertising, about the First Amendment and preemption doctrine. They should care about the Consumer Financial Protection Bureau, the Federal Trade Commission and their state Attorney General’s office. And, they should be looking to work with all of these laws and institutions to help them take on the urgent work that they do.

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

Mermin: You mean aside from my long-held dream to pick coconuts in the South Pacific, which evaporated when I saw what it would take to climb one of those trees? Actually, you know, I’m doing exactly what I want to do. I’m a very lucky guy.
 

The first reader to correctly answer the quiz question will be given a mini public health law profile in the April 2015 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: March 2015

What was Ted Mermin’s profession before becoming an attorney?

La Tonya Calloway

January Question: What is the date of the webinar that will feature Dr. Maria Hernandez and will be co-hosted by the American Bar Association and the Public Health Law Program?

Winning response:
Wednesday, March 18, 2015, 1:00–2:30 pm (EDT).

Alabama: Pharmacy board has authority to fine out of state mail order Rx firm
Serve You Custom Prescription Management v. Alabama
Court of Civil Appeals of Alabama
Case No. 213024
Filed 2/27/2015
Opinion by Judge Scott Donaldson

Texas: Hazardous waste facility had notice of mismanagement charges, affirmed
McHaney v. Texas Commission on Environmental Quality
Court of Appeals of Texas, Third District, Austin
Case No. 03-13-00280-CV
Filed 2/27/2015
Opinion by Chief Justice Jeff Rose

West Virginia: Deputy had sufficient grounds to conduct DUI stop and sobriety test
Reed v. Hill
Supreme Court of Appeals of West Virginia
Case No. 14-0103
Filed 2/27/2015
Opinion by Justice Allen H. Loughry, II

Federal: Summary Judgment denied, notice of toxic discharge into bay given
San Francisco Herring Assoc. v. Pacific Gas and Electric
United States District Court, Northern District of California
Case No. 14-CV-04393-WHO
Filed 2/26/2015
Opinion by District Judge William H. Orrick

Federal: Whistleblower who reported smoking not constructively discharged
Wolverton v. The Goodyear Tire and Rubber Co.
United States District Court for the District of New Jersey
Case No. 13-2782 (NLH/AMD)
Filed 2/26/2015
Opinion by District Judge Noel L. Hillman

Federal: Board may only claim anti-trust immunity if active State supervision
North Carolina State Board of Dental Examiners v. Federal Trade commission [PDF - 181KB]
Supreme Court of the United States
Case No. 13-534
Filed 2/25/2015  
Opinion delivered by Justice Anthony Kennedy

Quotation of the Month: Presidential Commission for Bioethics

“Public health preparedness requires ethics preparedness. We need to be prepared, for example, to communicate early and often during an Ebola epidemic — drawing upon the best scientific evidence — why not to quarantine asymptomatic individuals. Needlessly restricting the freedom of expert and caring health care workers is both morally wrong and counterproductive; it will do more to lose than to save lives,” the Presidential Commission for Bioethics concluded in their report Ethics and Ebola: Public Health Planning and Response.