April 2015—Public Health Law News

Webinar—Health System Transformation: The Changing Legal Landscape. PHLP and the American Bar Association Health Law Section are co-hosting a three-part webinar 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.

Training—Arizona 2015 Public Health Law and Science: What Tribes Need To Know. The University of Pittsburgh, Public Health Training Center is hosting a free workshop designed to improve tribal legal preparedness relating to infectious diseases and emergency preparedness. The workshop will be held June 4–5, 2015, from 8:00 am to 12:00 pm (MDT) at Talking Stick Resort in Scottsdale, Arizona. This workshop is open to tribes in Arizona, California, Colorado, Nevada, New Mexico, and Utah. The workshop is fully funded, including reimbursement for reasonable travel costs, meals, and lodging. Registration is limited to two people per tribe. The workshop is possible through a grant to the University of Pittsburgh Graduate School of Public Health from CDC’s Public Health Law Program through a sub-award from the Association of State and Territorial Health Officials.

Journal article—Tribal water rights: exploring dam construction in Indian Country. [PDF 105KB] This article examines the legal and policy framework related to tribal water rights, with a focus on the impacts of dam construction in Indian Country. Three dam projects were highlighted—the Dalles Dam, Elwha River Dams, and Pick-Sloan Missouri River Basin Program.

Journal article—The effect of local policy actions on mortality among homeless people: a before–after study. Homeless people have a 3–5-fold increased risk of mortality compared with general populations. After 2005, policy actions implemented in Rotterdam, the Netherlands, have improved the living conditions of this group. This study examines the effect of policies aimed at improving living conditions on mortality risks of the homeless.

Special Issue of the Journal of Law, Medicine & Ethics. A special issue of the Journal of Law, Medicine and Ethics, “Symposium: 2014 Public Health Law Conference: Intersection of Law, Policy and Prevention,” was released April 2, 2015. The issue is devoted to articles and topics presented at the 2014 Public Health Law Conference (subscription might be required).

2015 Health Law and Policy Summer Institute. American University Washington College of Law 2015 Health Law & Policy Summer Institute will run June 22–27, 2015, at American University in Washington, DC. The course is open to students and professionals. Applications are accepted on a first-come, first-serve basis and space is limited. Please apply as soon as possible.

Summer Program on Infectious Diseases and the Law. The O’Neil Institute for National and Global Health at Georgetown University will host the 2015 Summer Program on Infectious Diseases and the Law June 22–26, 2015, at Georgetown University in Washington, DC. Applications are due by June 8, 2015.

Tribal Epidemiology Centers Designated as Public Health Authorities Issue Brief [PDF 500KB]. This issue brief provides an overview of tribal epidemiology centers and recent amendments to the Indian Health Care Improvement Act (permanently reauthorized by the Affordable Care Act), which designated these centers as public health authorities. The issue brief further outlines the impact of this designation under HIPAA. 

Indian tribes are retaking jurisdiction over domestic violence on their own land

ABA Journal   (04/01/2015)   Lorelei Laird

A 1978 US Supreme Court decision, Oliphant v. Suquamish Indian Tribe, ruled that tribes have no jurisdiction to prosecute non-Indians for crimes committed on tribal land. Federal authorities have almost exclusive jurisdiction to prosecute non-Indians for crimes committed on tribal lands. Due to this gap in authority, crimes committed on reservations by non-Indians often go unprosecuted.

The gap in jurisdiction is especially apparent in cases of domestic violence carried out by a non-Indian on a reservation. Even if state or local authorities are called and the crime is reported, the state law enforcement officers are unable to prosecute on Indian lands, and Indian law enforcement officers have no jurisdiction over the non-Indian perpetrator.

State authorities in 16 states also have jurisdiction over crimes, pursuant to Public Law 280, but the statute doesn’t apply to every tribe in most of the affected states. Regardless of Public Law 280, many local state authorities and tribes have agreements in place to share jurisdiction.

Despite attempts to settle jurisdictional issues before a crime is committed, domestic violence crimes are still unlikely to be prosecuted. In 2010, the US Government Accountability Office reported that between 2005 and 2009, US attorneys declined to prosecute 46 percent of assaults referred from Indian Country.

In 2013, however, section 904 of the reauthorized Violence Against Women Act empowered tribes to begin prosecuting domestic violence by non-Indians beginning March 7, 2015. Three tribes that were part of a pilot group began testing the jurisdictional change a year before the law took effect. Since beginning the project, the pilot groups have already prosecuted 23 defendants.

Even with jurisdiction, many worry that tribes will not have the resources to prosecute. Others are concerned that the law, which does not apply to sexual assault or child abuse, isn’t broad enough to make a difference. Others are more hopeful. “For Indian Country at least, it’s huge. I would even call it historic,” said Fred Urbina, attorney general for the Pascua Yaqui tribe of Arizona.

Indiana: Indiana county hit by HIV outbreak begins needle exchange program
CBS News   (04/06/2015)  
[Editor’s note: Read Executive Order 15-05, Declaration of Public Health Emergency in Scott County, Indiana [PDF 487KB].]

Massachusetts: Senate OKs funding for Mass. homeless shelters
Masslive.com   (03/30/2015)  

Montana: ‘Gertie’s babies,’ sold at birth, use DNA to unlock secret past
New York Times   (04/04/2015)   Kirk Johnson

Oregon: Puberty suppression now a choice for teens on Medicaid in Oregon
NPR   (04/05/2015)   Kristian Foden-Vencil

National: Breast milk bought online diluted with cow’s milk, researchers find
NBC News   (04/06/2015)   Bill Briggs and Erika Edwards
[Editor’s note: Read more about the study, FDA’s guidance for donor breast milk, and learn more about laws related to the sale of human breast milk by reading Legal commentary on the internet sale of human milk, Public Health Rep. 2011 Mar–Apr;126(2):165–6.]

National: High-power magnets get temporary reprieve from safety rules
New York Times   (04/03/2015)   Rachel Abrams
[Editor’s note: Learn more about high-powered magnets and read about the case settlements and recalls.]

National: Michelle Obama’s Let’s Move turns 5; is it working?
CNN   (04/06/2015)   Kevin Liptak

National: States give nurse practitioners more leeway to treat patients
The Commonwealth Fund   (04/06/2015)   Marissa Evans
[Editor’s note: Read Nebraska’s nurse practitioner law [PDF 59KB].]

International: French bill barring ultrathin models clears a hurdle
New York Times   (04/03/2015)   Alissa J. Rubin

Interview with Sarah Happy

Title:
LawAtlas Outreach and Training Director, Public Health Law Research

Education:
BA, art history and political science, University of Michigan; JD, Temple University Law School

Public Health Law News (PHLN): Please describe your career path. 

Happy: I’ve always wanted to be a lawyer and have worked for judges and lawyers since undergrad. But when I started law school at Temple, I joined the Health Law Society. During one of our meetings, Scott Burris gave a presentation on a program office he was leading for the Robert Wood Johnson Foundation, Public Health Law Research (PHLR). After the presentation, I emailed him and volunteered to work for PHLR. I started as an unpaid intern, became a paid intern, and when I graduated from law school, they hired me as a full-time staff member. I’ve been at PHLR since I graduated, and I have learned so much from Scott and this organization. 

PHLN: What drew you to public health law?

Happy: I’ve always been interested in public interest work, and I applied to a dual program in law and public policy the first time I applied to law school. But three weeks after I graduated from the University of Michigan, I was diagnosed with cancer. I withdrew my applications and spent the next year in treatment. During treatment, I spent a lot of time in hospital waiting rooms, and I made friends with a lot of other patients. We talked a lot about our lives, how to cope with the day-to-day realities of chemo and cancer, and how much our lives had changed since our diagnosis. What struck me is how so many of these patients felt hope from a medical perspective but felt hopeless from a social and financial perspective.

Many had lost their jobs, medical insurance, marriages or relationships were ending, their children were suffering, and they felt like there was nothing they could do about it. Even if their cancer was in remission, they would have to start over, and they felt there was very little societal support for this monumental task. I decided that if I got better, I had to find a way to help people suffering with long-term illness or disability. Working at PHLR and in public health law, for me, has been a way to help right some of the wrongs I saw at that time.

PHLN:  What is PHLR?

Happy: The Public Health Law Research program is a national program of the Robert Wood Johnson Foundation. We focus on identifying effective regulatory, legal, and policy solutions to improve public health. To achieve this goal, we fund research, improve methods, and make evidence available to policy makers, the media, and the public.

But public health law research is also a field of study. In the PHLR program office, we are actively working to promote and develop the scientific study of the relationship between law and legal practices and population health. We’ve spent a lot of time developing and enhancing methods. Our website has a number of white papers and videos explaining how to conduct public health law research studies. Scott Burris and Alexander Wagenaar, another public health law researcher based at the University of Florida, edited “Public Health Law Research: Theory and Methods,” a book that was published in 2013.

More recently, we have expanded our thinking about public health law research to include what we call policy surveillance—the scientific measurement of law across space and over time. We’ve been developing materials and refining methods for this area of research as well, and much of that can be found on our website LawAtlas.org.

PHLN:  Please describe your day-to-day job responsibilities as the Training and Outreach Director.

Happy: I work on methods and materials to support the field of public health law research and policy surveillance. Right now I’m developing a training program to support policy surveillance and the building of legal inventories to support local and state health departments.

PHLN: You were the primary researcher behind RWJF’s recent publication of the Minimum Wage Laws Map, which catalogues the history of federal and state minimum wage laws and displays them in interactive maps and charts. Can you please explain what minimum wage is and the difference between state and federal minimum wage laws?

Happy: The minimum wage is the minimum dollar amount an employee can be paid for an hour of work. A federal minimum wage was first established in 1938 when congress passed the Fair Labor Standards Act. It’s been raised 22 times since then, and it has held at $7.25 since 2009. States can also establish their own minimum wage, and since 1938, almost every state has. When a state has a minimum wage rate, an employee will generally receive the higher of the two rates, either the federal or the state rate. In the five states without state minimum wage laws, the federal minimum wage rate applies.

PHLN: How are minimum wage laws related to public health?

Happy: We’re now beginning to understand that financial resources are directly related to health outcomes and health inequalities in populations. Because law determines how resources and conditions are distributed, evaluating how the law shapes economic and social conditions is important to improving health.

This falls into the conversation that we’re having more and more about social determinants of health and the Robert Wood Johnson Foundation’s interest in building a Culture of Health. The conditions in which people are born, grow, live, work, and age—this includes the stress, employment, social support networks, the availability of food and clean water, education and transportation—all of that contributes to health and well-being. The law, along with economics, social policies and politics, helps shape all of that.

PHLN: How did you become interested in minimum wage laws?

Happy:The minimum wage dataset was part of a larger project exploring social determinants of health that we completed in collaboration with Dr. Wagenaar and his team at the University of Florida. In order to improve what we broadly refer to as the social determinants of health, his team decided to empirically evaluate how laws and policies are shaping economic and social conditions over the lifespan of children. By evaluating how these policies shape these conditions, we hope to advance understanding of how policies can be optimally used to improve public health outcomes. His team chose to evaluate the minimum wage because declines in the real value of the minimum wage account for a substantial proportion of increased earnings inequality, particularly for women.

PHLN: Can you give an example of how minimum wage affects public health outcomes?

Happy:Alexander Wagenaar and his team have been working with our dataset of minimum wage laws to try to understand just what the impact is. They’re still in early stages of this important research, but they published a paper in January in Health Behavior & Policy Review, Social Determinants of Child Health: Concepts and Measures for Future Research, that outlines areas where they think the focus should be.

PHLN: Why might minimum wage’s relationship to public health be a potentially contentious topic?

Happy: There’s a pretty contentious debate on the actual impact of the minimum wage on workers, but so far, the empirical data on the impact to health is limited. Proponents of the minimum wage believe that by increasing wages, you increase disposable income and increase access to medical care. Opponents of the minimum wage argue that employers will offset increased wages by cutting health insurance benefits, or hiring fewer workers, thereby reducing access to income and health benefits that can improve public health. We hope the research that’s in progress will shed light on some of these issues.

PHLN: Can you explain your process for gathering and organizing the minimum wage laws?

Happy: To create any dataset that spans a period of time, we follow the methods outlined in the Technical Guide for Policy Surveillance. This is a document we created and have refined through a Delphi process and a partnership with PHLP, ChangeLab Solutions, the Network for Public Health Law, and other consultants. For the minimum wage laws project, we began by systematically collecting session laws, and then we used those session laws to build legal text for the entire study period, which was 1980–2015. Coding questions were developed, and the law was coded using the content management system we’ve created, called the Workbench. Quality control provisions were implemented throughout the process. This includes redundant research, redundant coding and the calculation of reliability measures. Once coding was complete, the dataset was published to LawAtlas.org. We are currently tracking changes in the law and coding them for inclusion in the dataset.

PHLN: What types of troubleshooting should researchers include when conducting a legal assessment?

Happy: There are two things that researchers can do. First, remember that the process is iterative, and you might have to reformulate your coding questions and re-code in order to accurately capture the law across the jurisdictions where you’re researching. Second, quality control measures, especially redundant coding, are great diagnostic tools. Redundant coding is a process where you have two researchers code the same law for the same jurisdiction independently. A third researcher reviews the coding, identifies and records divergences and then all three researchers meet to discuss and resolve the divergences. This identifies issues with the coding questions and ambiguity or difficulty in the law, and really improves the overall quality of the work. Depending on the dataset, we’ll do redundant coding for a certain percentage of states or jurisdictions where we feel we’ll get a good sense of all the variations in the law. Whenever we encounter difficulties in coding at PHLR, we increase redundant coding for a period of time and it resolves any issues.

PHLN:  Can you clarify the difference between LawAtlas and Workbench?

Happy: LawAtlas is the online policy surveillance portal where legal information is displayed, and data sets are posted for researchers to download. The Workbench is the software platform that can be used to measure the law and changes in the law across cities, counties, and states, and over time.

PHLN: How can LawAtlas be used to support public health research outside of your organization?

Happy: We have a wide range of public health professionals across the country already using these tools in different ways. The Nebraska Department of Public Health is using LawAtlas to track all laws related to their work at the state, county, and city levels. Students at Ohio State University use LawAtlas and Workbench to track county-level laws and suggest interventions to the local public health department. We’ve had datasets created by researchers at CDC, the Seattle-King County Health Department, and groups like the National Nursing Centers Consortium and the Network for Public Health Law.

PHLN:  How can individuals learn more about using LawAtlas and Workbench?

Happy: The first thing they can do is visit LawAtlas.org. At LawAtlas, we have data available with supporting codebooks and protocols, as well as interactive maps, tables, and reports on topics such as medical and recreational marijuana, telehealth laws, distracted driving, overdose prevention, and about 25 others. If they’re interested in creating a dataset, they can also contact me directly to schedule a training or demonstration. I’m always happy to talk to lawyers, practitioners, and researchers who are interested in LawAtlas and the Workbench.

PHLN: What other projects are you currently working on?

Happy: At PHLR, we’re continuing to work with our grantees to disseminate their research and support the grantees whose work is still in progress. We’re also constantly updating LawAtlas datasets and have been working on a few new ones. I’m currently working on the development of a comprehensive training program to support lawyers and public health practitioners conducting policy surveillance. The training program will contain an online learning library, training videos, and exercises and methods materials.

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

Happy: I think I would have gone to medical school. 

PHLN: Have you read any good books lately?

Happy: I’ve been working through a lot of cookbooks lately. I recently bought “Saving the Season,” which is about canning and preserving. I live two blocks from the oldest outdoor market in the United States, and I want to take advantage of it this summer.

PHLN: What are your hobbies?

Happy: I love to cook, and I recently started sewing. I’m currently working on a quilt for my nephew, Ali.

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

What is Profile in Public Health Law Interviewee Sarah Happy currently making for her nephew?

Douglas Beardsley

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

Winning response: Ted was an elementary school teacher before becoming a lawyer.

Employment organization and job title:  Johnson County Public Health (Iowa City, Iowa), Director

A brief explanation of your job:  Executive direction, strategic planning, and community relations for a county-level public health department. We provide services in environmental health (food, private water and septic, nuisance), communicable disease investigation and control, health promotion and maternal and child health services. Every day can bring something different to my desk.

Education: BA in health education, University of Utah, and MPH in health education/health behavior from the University of Alabama at Birmingham.

Favorite section of the News: I enjoy all of the sections to at least keep me at an awareness level of legal issues in public health, but if I had to pick a favorite it would be Legal Tools. There’s usually something there that sparks an idea or helps with a project.

Why are you interested in public health law? As a government agency, I take seriously the stewardship entrusted to us and want to ensure that everything we do has a firm footing in law and that any actions we take will be defensible if (or when) challenged.

What is your favorite hobby? Performing in local musical theater.

New Jersey: No immunity for school nurse in state-mandated vision testing case
Parsons v. Mullica Township Board of Education
Superior Court of New Jersey, Appellate Division
Docket No. A-0643-14T4
Decided 3/30/2015
Opinion by Judge George S. Leone

New Jersey: Hospital facility entitled to limited damages, not charitable immunity
Kuchera v. Jersey Shore Family Health Center
Supreme Court of New Jersey
Case Nos. A-60 September-Term 2014, 073483
Decided 3/31/2015
Opinion by Judge Mary Catherine Cuff

Federal: Product claims specific enough to fall outside of law
Hughes v. Ester C Co. United States District Court for the Eastern District of New York
Case No. 12-CV-0041 (PKC)(GRB)
Filed 3/27/2015
Opinion by District Judge Pamela K. Chen

Federal: Plaintiff failed to prove HPV vaccine caused injuries
Sullivan v. Secretary of Health and Human Services
United States Court of Federal Claims
Case No. 10-398V
Filed 2/13/2015
Opinion by Special Master Brian H. Corcoran

Quotation of the Month: Laurel Bellows, former American Bar Association President

“Expanding protections for Native Americans, campus victims, survivors of sexual assault, and victims of violence, regardless of immigration status—and for the first time, including protections for lesbian, gay and bisexual victims—is a critical victory for human dignity,” said former American Bar Association president, Laurel Bellows, of the reauthorization of the Violence Against Women Act’s provision on tribal jurisdiction to prosecute non-Indians who commit domestic violence crimes in Indian Country.