September 2016—Public Health Law News

National Preparedness Month Activities at CDC. In recognition of National Preparedness Month, the Office of Public Health Preparedness and Response (OPHPR) will highlight public health preparedness and response topics and interventions throughout September. OPHPR has also released an infographic, The Power of Preparedness, and will host a live Twitter chat about preparedness on Tuesday, September 27, 2016, from 1:00 to 2:00 pm (EDT). Follow @CDCEmergency #CDCPrep2016 to participate.

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Tribal Public Health Law Externship. CDC’s Public Health Law Program (PHLP) now offers externships in Tribal public health law for rising second or third year law students. The externship consists of 9–14 weeks of professional work experience with PHLP in Atlanta, Georgia. With rolling start and completion dates during the academic year, unpaid externships must qualify for academic credit as authorized by law schools. Applications for the spring 2017 externships are due by November 1, 2016.

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National Tribal Nationals Annual Health Conference. The National Indian Health Board’s 33rd Annual Consumer Conference—2016 National Tribal Health Conference: Achieving and Sustain Quality Health Care in Indian Country, will take place September 19‒22, 2016 at the Talking Stick Resort in Scottsdale, Arizona. Registration is available online and at the conference.

Radiological Emergency Preparedness and Response: Educational Facilities Preparedness and Legal Study [PDF - 401KB]
Assesses the development and implementation of radiological emergency planning in kindergarten through university-level schools. Identifies best practices, gaps, and barriers in educational facility planning and key legal, emergency planning, and partnership considerations—from before a radiological incident occurs to six hours after.

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CDC’s New Regulations Website. CDC has launched its new CDC Regulations website, which provides an overview of CDC’s regulatory authorities and activities to encourage public participation in the rulemaking process. The website provides links to the existing program web pages on CDC’s regulatory authorities and to HHS sites.

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Redesigned LawAtlas. The Center for Public Health Law Research at the Beasley School of Law, Temple University has launched the newly redesigned LawAtlas website. The design includes new and updated maps and data and a series of training modules and resources that teach policy surveillance and legal mapping methods. The training models were created in part with funding from CDC’s Office for State, Tribal, Local and Territorial Support’s, through cooperative agreement CDC-RFA-OT13-1302.

All US Blood Donations Should Be Screened for Zika, FDA Says
NPR (08/26/2016)   Joe Neel

The Food and Drug Administration (FDA) recently revised recommendations for blood banks, stating that all blood donations in the United States should be screened for the Zika virus. This recommendation is an expansion from the previous one, which focused on deferring donations from donors who have traveled to or live in an area with active Zika transmission or from donors with Zika-like symptoms.

Although Zika has not been spread by blood transfusions in the United States, there have been cases related to travel abroad, sexual transmission, and local mosquitoes. Zika virus infection is especially dangerous for pregnant women and can lead to serious birth defects for their children.

Given the seriousness of the infection, experts emphasize the importance of keeping the blood supply safe and Zika-free. However, because most people infected with Zika won’t have symptoms, the only way to be sure donated blood across the country is safe is to test it.

The new recommendations will help prevent the further spread of Zika and protect any patients in need of a blood transfusion.

[Editor’s note: Read the FDA’s Revised Recommendations for Reducing the Risk of Zika Virus Transmission by Blood and Blood Components: Guidance for Industry [PDF - 278KB].]

Colorado: Colorado to decide whether to triple cigarettes tax
Coloradoan   (08/22/2016)   James Anderson
[Editor’s note: Read Colorado’s ballot initiative 143, New Cigarette and Tobacco Taxes.]

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Florida: Officials start Hurricane Hermine cleanup but state cannot yet ask for disaster declaration
The Tampa Bay Times   (09/02/2016)   Michael Auslen

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Indiana: Their soil toxic, 1,100 Indiana residents scramble to find new homes
New York Times   (08/30/2016)   Abby Goodnough

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Louisiana: Louisiana flood of 2016: Federal disaster declared, what does that mean for you?
The Times-Picayune   (08/16/2016)   Richard Rainey
[Editor’s note: Learn more about President Obama’s Disaster Declaration for Louisiana’s severe storms and flooding that began on August 11, 2016, and the Stafford Act.]

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Tennessee: Statewide emergency wireless alert test kicks off National Preparedness Month
WJHL News Channel 11   (09/01/2016)  

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National: FDA bans sale of many antibacterial soaps, saying risks outweigh benefits
New York Times   (09/02/2016)   Sabrina Tavernise
[Editor’s note: Read FDA’s final rule on safety and effectiveness of antibacterial soaps.]

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National: Feds to distribute $53 million to states to fight opioids
AP   (08/31/2016)  
[Editor’s note: Learn more about HHS’s $53 million award to address the opioid epidemic.]

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National: Police losing battle to get drivers to put down their phones
AP   (09/02/2016)   Denise Lavoie
[Editor’s note: Learn more about laws about cell phone use while driving from LawAtlas.]

Australia: Australian judge rules in favor of 6-year-old cancer patient’s parents who want son to die without potentially life-saving treatment
Daily News   (09/01/2016)   David Boroff

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Australia: Instagrammers bragged about cruise to ‘peaceful’ place. Then cops found 95 kilos of cocaine.
Washington Post   (09/01/2016)   Lindsey Bever

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Nigeria: Delta quarantines 55 over Lassa fever death
The Guardian   (09/06/2016)   Hendrix Oliomogbe and Owen Akenzua
[Editor’s note: Learn more about Lassa fever.]

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World: WHO strengthens Zika safe sex guidance
BBC   (09/06/2016)
[Editor’s note: Learn more about the World Health Organization’s Zika-related guidance and read CDC’s guidance to prevent the spread of Zika through sex.

Title: Attorney and Public Health Analyst, Chenega Professional & Technical Services, LLC, assigned to CDC’s Public Health Law Program

Education: BA in political science from Dickinson College in Carlisle, Pennsylvania; JD with a Certificate in Health Law from the University of Maryland School of Law in Baltimore, Maryland.

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

Sunshine:I knew at a very young age that I wanted to be an attorney and that I wanted to help people, so I approached college as merely part of my path to law school. Hence, my political science major and focus on issues of public service and justice. What I didn’t know was that my extracurricular activities in college, more than what I learned in the classroom, would end up focusing my legal career (as you’ll see below). 

PHLN: What drew you to law and, more specifically, public health emergency preparedness?

Sunshine:I had always been interested and inspired by the work of my aunt and uncle, who both set out to be attorneys but ended up taking very different career paths (my uncle became a family court judge after a career in family law, while my aunt serves as Clerk of Kings County, Clerk of the Supreme Court, and the Commissioner of Jurors). So, when I was given a “pick a career and interview someone in that career” assignment in high school, they were an obvious choice. By learning the details of their motivations for public service and the ways in which they used legal careers to help others, I was quickly convinced that a career in law was the best way for me to maximize my positive impact on society. I needed only to decide what kind of career in law.

The answer came in college, when my future wife Brittany Sunshine and my future mentor John Miyahara both convinced me to volunteer for the second of our college’s Serve the World Hurricane Katrina relief service trips. On that trip, I was assigned to help gut a house that was devastated by the storm. While working, I heard a heart-wrenching conversation with the woman who lived there. She told me about her husband who had passed away in an earlier hurricane after they were unable to evacuate, lost power, and his durable medical equipment failed. This tragedy, combined with the gratitude she showed us, revealed to me the responsibility our society bears to help those affected by disasters and the devastating consequences when we fall short. After three more trips to the Gulf Coast and founding a chapter of the Red Cross Disaster Action Team for Cumberland County, Pennsylvania, I knew that somehow, I would have to incorporate my passion for emergency response into my legal career.

I entered the University of Maryland School of Law conscious of my desire to work in emergency response but unsure how to use legal skills in that context. By a stroke of luck, my law school was home to both Professor Michael Greenberger, director of the Center for Health and Homeland Security and expert on emergency management law, and Professor Kathleen Hoke, director of the Eastern Region of the Network for Public Health Law and expert on public health law and policy. With their mentorship, I was able to combine the law with my emergency response experience and focus on public health emergency law in every internship, externship, and (almost) every elective I could take in law school. After passing the bar, I had the honor of using my education by serving at the Baltimore City Health Department’s Office of Public Health Preparedness and Response coordinating their bioterrorism preparedness program and serving in response activations (including Hurricane Sandy).

PHLN: How long have you been with the Public Health Law Program (PHLP)?

Sunshine:I’ve been with PHLP since May 2013, when I started as an ORISE fellow and subsequently transitioned into a contractor with Carter Consulting, Inc., and more recently, Chenega Professional & Technical Services, LLC.

PHLN: How is law related to public health emergency preparedness?

Sunshine:As my colleague Montrece Ransom says, “There is no public health without the law.” And as with all public health, law serves as the foundation for public health emergency response as well. The authorities given to government responders in emergency management and public health agencies, the powers given to elected officials, and scope and limitations on these authorities and powers are all found in laws and regulations.

But the law not only affects response through statutes and regulations, but it can also craft preparedness and response through case law. Look at two examples—Prince v. Waters, 48 A.D.3d 1137 (N.Y. App. Div. 2008), where the court found deviation from the National Incident Management System-Incident Command System [PDF - 141KB] (NIMS-ICS) could be used to form the predicate for liability, and Brooklyn Center for Independence of the Disabled v. Bloomberg, 980 F. Supp. 2d 588 (S.D.N.Y. 2013), where the court held that the city’s emergency preparedness program did not sufficiently accommodate disabled individuals. These two cases make two widely accepted emergency response best practices (following NIMS-ICS and accommodating persons with disabilities) actual legal requirements, lest other agencies face similar claims from their constituents. So, because of this, when I think about law’s relationship to emergency preparedness, I consider not just statutes and regulations, but case law as well.

PHLN: What is legal preparedness?

Sunshine:I’ve always defined being “legally prepared” as having the ability respond to emergencies quickly, efficiently, and within the confines of the law. To me, the goal is to be legal by default: to ensure that your plans and exercises have considered and incorporated legal requirements of statutes, regulations, and case law into your plans and procedures. That way, when you actually respond to a threat, your operating framework and specific response activities already meet your legal requirements—you’re already legal by default. Now this isn’t easy, but it demonstrates why having your attorneys involved early and often is vital, and we at PHLP are always happy to help folks in the field become legally prepared.

My high school band teacher, Joe Bongiovi, said it best: “Practice doesn’t make perfect. Perfect practice makes perfect performance.” The same holds true for making sure your plans and exercises have properly incorporated your jurisdiction’s legal requirements.

PHLN: Can you give some specific examples of how legal preparedness has improved public health response?

Sunshine: Sure! Recently, I had conversations with city and airport public health personnel in Chicago about their experiences during the Ebola response. I was elated to hear how smoothly federal quarantine officials, airport authorities, city public health, and first responders worked together during the response. Thanks to plans and procedures that considered jurisdictional boundaries, badging and security requirements, command and control, and pre-drafted public health orders, all of those involved were able to work together smoothly and efficiently. It was truly an embodiment of being “legal by default”!

PHLN: What’s unique about PHLP’s relationship to emergency legal preparedness?

Sunshine:PHLP was founded in 2000 to help lead and coordinate CDC’s public health law efforts. After the September 11, 2001, terror attacks and the subsequent anthrax attacks, the necessity of agile and well-coordinated public health and legal response to emergency situations was even more apparent. Due to these factors, PHLP has built a very close relationship with CDC’s Office of Public Health Preparedness and Response (OPHPR). In fact, OPHPR fundes several of PHLP emergency response activities, including PHLP’s Public Health Emergency Law Course (PHEL) and much of PHLP’s emergency preparedness research portfolio.

PHLP also serves as a point of contact between the legal community and CDC, connecting CDC personnel with state, tribal, local, and territorial (STLT) health department attorneys (and vice versa), training people how to use law as a public health tool, breaking down barriers to understanding how law intersects with public health, and making professionals on both sides of the equation more comfortable with a transdisciplinary, collaborative approach. As part of these efforts, PHLP hosts two listservs for state and local public health department legal counsel, providing listserv members with direct peer-to-peer communication and engagement with CDC. We also respond to requests for feedback on materials from both the public health and healthcare preparedness sides of OPHPR, and we frequently support CDC’s Emergency Response activities, providing research and also detailing our staff to activated responses, such as Zika and the 2014 Ebola response. 

PHLN: What are your day-to-day job responsibilities?

Sunshine:I put my legal preparedness work into three categories: resource development, emergency response support, and workforce development and training.

For resource development, I work to develop evidence-based materials on a wide variety of topics, including emergency declaration authorities, disaster executive orders, isolation and quarantine, and emergency response case law. Often, to develop these materials, we work with federal, STLT, non-profit (such as the National Association of City and County Health Officials (NACCHO) and the Association of State and Territorial Health Officers (ASTHO)), and academic partners to receive input and collaborate to develop these resources. For example, I’m currently working with Lainie Rutkow, JD, PhD, MPH, and Alex McCourt, JD, MPH, PhD, student at the Johns Hopkins Bloomberg School of Public Health, to collect, analyze, and code all published cases arising out of emergency preparedness and response to determine what emergency response issues have formed the predicate for lawsuits after emergency response activities.

During emergencies, we provide assistance to federal and STLT stakeholders to support their response activities with legal technical expertise. This expertise sometimes comes directly from the PHLP staff. For example, during the Ebola response, Dawn Pepin and I responded to many requests for information about how states were implementing CDC’s monitoring and movement guidance by analyzing those state policies and creating an online map and table [PDF - 1.1MB] showing our findings; however, the emergency response expertise we share during emergencies often involves engaging with expert attorneys representing state and local health departments through our ASTHO and NACCHO Legal Preparedness Workgroups that can provide a wide range of perspectives on many public health law topics.

In terms of workforce development and training, I’ve the wonderful pleasure of taking all the things I’ve learned in the first two categories and turning them into training materials for the community. Often, I deliver presentations at conferences—last spring at the NACCHO Preparedness Summit I presented findings from our analysis of influenza emergency declarations and executive orders—or via webinars, such as the recent series of Zika webinars. But my favorite thing to do is to travel to health departments to deliver our PHEL course. You can read all about our 2015 summer “Roadshow,” but basically, I’ve spent the last two summers traveling to a total of 17 states and delivering 21 PHEL trainings to nearly 1,000 people. It was a whirlwind but so rewarding professionally (we get a ton of new project ideas from folks in the field), intellectually (I always learn new things from people at the trainings), and personally (the best part is meeting all the wonderful and interesting preparedness stakeholders we have around the country). This year, our goal is to spread them out beyond just the summer, so folks at STLT health departments should reach out to me if they’re interested in hosting a PHEL training between now and August 2017! We provide the course free of charge; all the hosting agency has to provide are space and students.

While I love the resource development and emergency response support I do, nothing beats getting out into the field and working face-to-face with our partners.

PHLN: What’s included in the PHEL course?

Sunshine: It’s a competency based training that aligns with the legal preparedness competency model. As such, it’s divided into three sections: systems preparedness and response; management and protection of persons; and management and protection of property and supplies. We cover everything from federalism and emergency declarations to at-risk populations and isolation/quarantine to seizure of supplies and Public Readiness and Emergency Preparedness (PREP) Act immunity. At the end of the day, we challenge attendees to look at their own laws and regulations and apply them to a public health emergency response scenario to put what they have learned into action.

PHLN: Who benefits from the PHEL courses, and who should consider attending?

Sunshine: Everyone! As I mentioned before, I certainly benefit from these trainings when I get to meet and learn from all the wonderful folks in the field. We have also seen a measured impact of the courses for attendees through our pre- and post-testing, which was shown an average improvement of nearly 25% more than attendees’ baseline scores. While the course is crafted for a health department preparedness personnel audience, we encourage anyone who may be involved in a public health emergency in the jurisdiction to attend. We’ve had personnel from emergency management, state laboratories, law enforcement, fire, EMS, and volunteers from Red Cross and the Medical Reserve Corps! And of course, we encourage health department attorneys to attend if they’re new to the field or help deliver if they’re willing and able. 

PHLN: In addition to teaching PHEL, what are your other training responsibilities at PHLP?

Sunshine: Now that PHEL has been developed, delivered, and refined, we are developing a new course specifically about responding to communicable disease emergencies tentatively titled the Communicable Disease Emergency Legal Preparedness (CDELP) course.

PHLN: Can you describe that course and explain how your team has undertaken the research to create it?

Sunshine: CDELP is being designed to be an interactive, online course to train health department personnel about the complexities of large-scale communicable disease emergency response, such as what we saw during the response to the 2014 Ebola outbreak. My colleague, Brianne Bostian, and I have been talking to expert stakeholders who were involved in the Ebola response, identifying legal challenges and solutions, and building training modules to help preparedness personnel learn how to address those legal challenges should they arise in future outbreaks. Topics will include issues such as airport jurisdictional challenges, patient transportation, non-pharmaceutical interventions, and waste transportation and disposal.

PHLN: How do you hope the course will improve future public health communicable disease emergency responses in the future?

Sunshine: While many of the examples and information being provided will come from the recent Ebola response, our hope is that all lessons can be used and adapted for future communicable disease emergencies. We hope we our course will provide useful solutions to legal barriers, and where those solutions don’t exist, we at least put preparedness personnel on notice for issues that may be a challenge.

PHLN: Circling back a bit, what are the state and local public health department counsel listservs and what do they do?

Sunshine: The state and local public health department legal counsel listservs are two listervs that allow attorneys representing state or local health departments to have conversations about public health law issues they’re facing. We hold quarterly calls to discuss emerging public health law topics as well as as-needed calls, which are all coordinated through the listservs. In the past, the listservs have been invaluable in responding to public health emergencies, including Zika, Ebola, and H1N1. State or local public health department attorneys interested in joining the listservs should email the PHLP inbox at phlawprogram@cdc.gov for more information.

PHLN: What is your favorite part of your job?

Sunshine: Getting to work with all my wonderful colleagues and leaders at PHLP and facing new, interesting, and impactful challenges every single day.

PHLN: What are the greatest challenges you face in your position?

Sunshine: Keeping up with all of the new and interesting developments across the field of public health preparedness! As an attorney, it’s always a challenge to keep abreast of all of the scientific and public health happenings that our amazing field produces every day. I’d be lying if I said that I don’t frequently ask my more mathematically inclined colleagues to do a bit of translation for my benefit.

PHLN: What would you be doing if you weren’t working in public health emergency legal preparedness?

Sunshine: I absolutely loved my time coordinating a program at the Baltimore City Health Department. I would not be at all upset if I found myself working in a state or local health preparedness office again!

PHLN: Have you read any good books lately?

Sunshine: Yes! When you’ve spent the last summer flying all over the country, you definitely have to bring great books as company. The highlight of my summer would have to be Fragile Things by Neil Gaiman. Short story collections make for great travel reading!

PHLN: If you could travel anywhere in the world, where would you go and what would you do?

Sunshine: I would go back to New Zealand to do more hiking and climbing with my wife.

PHLN: Do you have any hobbies?

Sunshine: I love rock climbing and hiking.

PHLN: Is there anything you’d like to add?

Sunshine: I want to thank my mother, father, and brother for always encouraging me to try new challenges! If not for them, I never would have taken that fated trip to New Orleans freshman year of college and would not be where I am today!

The first reader to correctly answer the quiz question will be given a mini public health law profile in the October 2016 edition of the News. Email your entry 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: September 2016

When are applications for PHLP’s spring 2017 tribal externship due?

Lynn Belgea

Question: On what podcast was PHLP Director Matthew S. Penn interviewed in July 2016?

Answer: The “Week in Health Law” podcast

Employment organization and job title: Minnesota Department of Health (MDH), Legal Counsel and Data Practices Coordinator. (June quiz winner Dave Orren is my manager.)

A brief explanation of your job: The primary focus of my work is to is to coordinate MDH’s obligations under the Minnesota Government Data Practices Act and other state and federal laws regarding protection of individual privacy and accessibility of public information. This involves providing legal counsel, planning and conducting training, advising on best practices, developing policies, procedures and model forms, preparing data use agreements, and coordinating the response to requests from the public for MDH records. In addition, I am a member of the MDH Institutional Review Board and sit on the vendor violation panel for the MDH WIC program.

Education: I have a BA magna cum laude in English from the University of Minnesota, College of Liberal Arts, and a JD summa cum laude from William Mitchell College of Law (now known as Mitchell Hamline School of Law).

Favorite section of the News: I like the Briefly Noted and Court Opinions sections. It’s good to get an update on what legal issues other public health authorities are facing.

Why are you interested in public health law? What interests me most about public health law is the constant balancing of individual privacy and autonomy against government power in support of the common good.

What is your favorite hobby? My favorite hobby is BookCrossing. BookCrossing is a social media phenomenon with the mission to connect people through books by making the world a library. BookCrossers label books with a unique identifier and release them into “the wild” —leaving them at coffee shops, laundromats, clinics—to find a new reader. The person who “catches” the book can go online, enter the unique identifier, see where the book has traveled and what previous readers thought about it, then read and release it for someone else to find. I don’t travel much, but my books have been all over the world!

New York: Summary judgement denied—disregard of fire safety that contributed to seven-alarm fire that killed two Fire Department of New York firefighters could be gross negligence
Borst v. Lower Manhattan Dev. Corp.
Supreme Court, New York County
Case No. 105375/08
Decided 08/24/2016
Opinion by Justice Lynn R. Kotler

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Ohio: Good Samaritan statute applies to health care professionals and includes other forms of assistance to the safety and well-being of another
Carter v. Reese
Supreme Court of Ohio
Case No. 2015-0108
Decided 08/30/2016
Opinion by Justice Terrence O’Donnell

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Federal: Army has discretion to make decisions in how to dispose of trichloroethylene, tetrachloroethylene, and other substances because no laws or regulations bind them to a course of conduct in establishing water quality
Pieper v. United States
United States District Court for the District of Maryland
Case No. CCB-15-2457
Opinion by Judge Catherine C. Blake

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Federal: Named defendants are not the appropriate parties for action; however, if proper defendants named there is sufficient basis to find deliberate indifference in delays in inmates liver treatment
Abu-Jamal v. Kerestes
United States District Court, Middle District of Pennsylvania
Case No. 3:15-CV-00967
Filed 08/31/2016
Opinion by Judge Robert D. Mariani

“There is still much uncertainty regarding the nature and extent of Zika virus transmission. At this time, the recommendation for testing the entire blood supply will help ensure that safe blood is available for all individuals who might need transfusion,” said Peter Marks, director of the FDA's Center for Biologics Evaluation and Research, of FDA’s new recommendations regarding Zika testing for all blood transfusions.

[Editor’s note: This quote is from All US Blood Donations Should Be Screened for Zika, FDA Says, published by NPR, 08/26/2016, by Joe Neel.]