May 2017—Public Health Law News

Public Health Law Program | Office for State, Tribal, Local and Territorial Support |
Centers for Disease Control and Prevention

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In This Edition

Note from the Editor

The Public Health Law Program (PHLP) thanks Avae Thomas, MPH; Carrie Field, MPH; and Johanna Margeson, JD, MPH―participants in PHLP’s spring 2017 externship program―for their help with Public Health Law News. We congratulate them and our other spring 2017 externs on their recent graduation. Each of them will be a tremendous force for the field of public health law and for positive public health outcomes.

Sincerely,

F. Abigail Ferrell, JD, MPA
Editor in Chief

Announcements

Webinar About Legal Epidemiology and Environmental Public Health. The National Environmental Health Association, in collaboration with PHLP, is offering a second webinar in a three-part series on an introduction to legal epidemiology. The second webinar, Legal Epidemiology, Part 2: A Tool for Evaluating the Impact of Environmental Public Health Laws, will feature speakers from PHLP, highlight variations in state law provisions related to environmental public health issues, and describe related legal epidemiology methods. This free webinar will offer abbreviated training in legal epi principles and will provide examples of legal epidemiology as applied to environmental public health laws. The webinar will take place June 14, 2017, at 1:00–2:30 pm (EDT) and will include a live question-and-answer session.

Zika Interim Response Plan. CDC recently released the 2017 Zika Interim Response Plan for the Continental United States (CONUS) and Hawaii. The updated document provides detailed guidance on issuing and removing Zika active transmission area (red) designations and Zika cautionary area (yellow) designations. In addition, the guidance for identifying areas at risk for the purpose of blood and tissue safety is now more closely aligned with the guidance for issuing travel and testing guidelines.

Applications Open for the Association for Environmental Health and Sciences Foundation’s Dr. Charlena M. Seymour Scholarship. The Association for Environmental Health and Sciences Foundation is currently accepting applications for the Dr. Charlena M. Seymour Scholarship to recognize women pursuing an advanced degree in the fields of public and environmental health. The application deadline is July 1, 2017.

Journal Article: The Latest in Vaccine Policies: Selected Issues in School Vaccinations, Healthcare Worker Vaccinations, and Pharmacist Vaccination Authority Laws. PHLP has published a new article in the Journal of Law, Medicine & Ethics that identifies and discusses changes and trends in select state vaccine policy issues developing across the United States that can affect rates of vaccination.

Journal Article: Primary Enforcement of Mandatory Seat Belt Laws and Motor Vehicle Crash Deaths. This article, published in the American Journal of Preventive Medicine, evaluates the effects of changing seat belt laws from secondary enforcement (i.e., citing drivers for failure to use seat belts only when citing them for another traffic infraction) to primary enforcement (i.e., directly citing drivers for failure to use seat belts). The authors found that while evidence suggests that upgrading enforcement increases seat belt use, it does not appear to reduce deaths from motor vehicle crashes, suggesting that other factors (e.g., road design) might be more influential in reducing deaths.

Legal Tools

Updated State School Immunization Requirements and Vaccine Exemption Laws Polar Graph and Analysis. State laws establish exemptions from school vaccination requirements and set requirements regarding the vaccination exemption application process and the implications of exemptions during an outbreak. Based on feedback received from states, PHLP has updated its polar graph highlighting nine attributes in school vaccination exemption laws and an accompanying summary of state vaccination laws.

The World Bank Releases the 2017 Atlas of Sustainable Developmental Goals. This report has more than 150 maps and data visualizations, charting the progress societies are making toward sustainable development goals.

Urban Institute: Urban Blight and Public Health. A variety of socioeconomic factors affect health outcomes. In this report, the Urban Institute evaluates how such factors as substandard housing, abandoned buildings, and vacant lots can ultimately affect not only the health of individuals but entire neighborhoods. The report also provides policy and program recommendations to use health impact assessments, track outcomes, and combine public health with housing policies, codes, and practices.

Briefly Noted

California: As California weighs soda warning labels, tax in Berkeley shown to dilute sales
Kaiser Health News (04/19/2017) Ana B. Ibarra

California: Judge threatens to fine California prisons for delayed mental health treatment
KQED News (4/20/2017) Lisa Pickoff-White and Julie Small

Illinois: $3M award in suit against drug company over man’s suicide
U.S. News (4/21/2017) Associated Press

Illinois: FDA warns Abbott on heart device battery woes, cybersecurity risks
Chicago Tribune (04/13/2017) Lisa Schencker

Iowa: GOP bill bans underage sales of e-cigarettes online
Iowa Public Radio (04/18/2017) Joyce Russell

Maine: After linking work to food stamps, Maine seeks same with Medicaid
The Wall Street Journal (04/14/2017) Jennifer Levitz

Michigan: Michigan doctors charged in first federal genital mutilation case in US
CNN (04/24/2017) Mayra Cuevas

Minnesota: Edina hears debate on upping age for legal tobacco sales
Star Tribune (04/19/2017) Karen Zamora

Tennessee: Judge rules in favor of Tennessee clinic in meningitis outbreak case
The Tennessean (04/24/2017) Walter F. Roche Jr.
[Editor’s note: Read the Memorandum of Decision and Order [PDF – 165KB] in RE: New England Compounding Pharmacy, Inc. Products Liability Litigation, MDL No. 13-02419-RWZ, 04/24/2017, United States District Court for the District of Massachusetts.]

Wisconsin: Wisconsin seeks to mandate drug tests for Medicaid recipients
The Boston Globe (04/25/2017) Astead W. Herndon

National: Bipartisan Senate bill takes step against opioid epidemic
Morning Consult (04/13/2017) Jon Reid

National: Calorie labeling rule delayed by FDA until next year
Chicago Tribune (05/01/2017) Samantha Bomkamp

National: Common nursery products send thousands of children to hospitals
The New York Times (04/24/2017) Nicholas Bakalar

Global Public Health Law

India: Despite the risks, morphine can offer hope
NPR (04/08/2017) Malaka Gharib

India: India’s ban on foreign money for health group hits Gates Foundation
The New York Times (4/20/2017) Nida Najar

Portugal: In Portugal, drug use is treated as a medical issue, not a crime
NPR – Morning Edition (04/18/2017) Lauren Frayer

Syria: In the crosshairs, Syria’s doctors are still saving lives—and bearing witness
Open Society Foundations (04/18/2017) Donna McKay

Uganda: Battle over free sanitary pads lands Ugandan activist in jail
NPR – Morning Edition (04/10/2017) Eyder Peralta

Profile in Public Health Law: Cheryl Bullard

Interview with Cheryl Bullard

Title: Special Counsel for the South Carolina Department of Health and Environmental Control

Education: JD and BSN, University of South Carolina

Public Health Law News (PHLN): Please describe your career path from a nurse to becoming deputy general counsel and chief counsel for public health for South Carolina’s Department of Health and Environmental Control.

Bullard:The summer after graduating high school, I had my first full-time job working in a long-term care facility providing care for elderly patients who were bedridden and could not care for themselves. My summer job shaped my first career choice more than I anticipated. I had been an English major, planning a teaching career, but I changed my major to nursing at the end of my freshman year. I learned to love working with the residents and taking the nursing courses. I graduated with a bachelor of science in nursing in 1975 and began my professional nursing career as a staff nurse in labor and delivery. Two years and many night shifts later, I became a nurse educator at the South Carolina Department of Mental Health (SCDMH) and began working on a master’s in nursing. After the required statistics course, I was discouraged, thinking my career opportunities would be limited to ensuring adequate staffing in a hospital or teaching, so I decided to go to law school.

After graduation, I returned to SCDMH as an attorney specializing in patients’ rights and commitments. In addition, I was liaison to outside counsel for litigation, primarily in malpractice cases, which introduced me to areas of practice you only read about in school: depositions, discovery, evidence, and trial preparation and presentation. I joined a small law firm after three years with SCDMH. I learned so much but was farther away from using my nursing degree than I wanted.

Three years later, I returned to SCDMH as the director of the Office of Quality Management. My responsibilities included quality assurance and monitoring, risk management, professional credentialing, utilization review, infection control, employee health, and accreditation. The leadership experience was incredible, but I wanted a career using both degrees. In 1991, I began working in the Office of General Counsel for the SC Department of Health and Environmental Control (DHEC). My practice areas included both health and environmental law. In the mid-late 1990s, we had the opportunity to “silo” our legal assignments in more specialty and concentrated areas. I became chief counsel for health for the agency, which included health services, health licensing, and health regulations, eventually dividing into “deputy” areas. I chose public health, and a few years ago became a deputy general counsel. I retired in May 2015, but continue to work with the public health law team as special counsel.

PHLN: What specifically drew you to law and away from nursing?

Bullard:I can’t say I was ever drawn to law and away from nursing. I had the desire early on to attend law school, but didn’t anticipate I would have the opportunity. I wanted to use both degrees, but I did not want to sue or defend doctors and nurses. Even while in law school, I worked part time as a nurse in labor and delivery. My dream job was to be in-house counsel for a hospital, though no hospital in my geographic area had an in-house counsel at the time.

SCDMH afforded some opportunities to use my nursing degree, but not as fully as I hoped. The job with DHEC provided me unlimited opportunities to learn new areas of the law, and expand my very limited knowledge in public health and environmental law, nurture litigation skills, and pursue leadership opportunities. In addition, I advised and counseled nurses on practice issues and professional and supervisory matters.

I didn’t know it when I was hired at DHEC but quickly learned I had lucked into the most exciting and dynamic job ever. Public health law has opened so many doors for me, from networking and leadership opportunities to shaping the public health policy and responses to many public health interventions, novel occurrences, and emergencies in our state.

PHLN: How does your clinical background as a nurse affect your approach as a public health attorney?

Bullard: Nursing and legal practice require critical thinking, analytical processes, and application of known principles and historical information in diagnosis of the medical or legal issue and development of a resolution plan. While the two skill sets are not identical, the combination of both thought processes affects the way I approach legal issues evaluation and application of law to make legal recommendations and strategies. Over time, it has become more difficult to distinguish one type of analysis from another, as they have become intertwined and part of my core approach to every problem situation. Each public health issue, especially a novel one, requires careful examination and analysis of the law and its application to a set of facts and circumstances to reach a viable resolution, just as a nurse would approach a patient presenting with an array of symptoms which might each require an intervention.

PHLN: Please explain how the Office of General Counsel (OGC) fits within South Carolina’s Department of Health and Environmental Control (DHEC).

Bullard:The Office of General Counsel (OGC) is a distinct office within DHEC. We have attorneys supporting all the “deputy” areas. We are divided into specialty groups; a group of attorneys is assigned to each deputy area. The practice areas are environmental affairs, including the Office of Coastal Resource Management; administration; health regulations; and public health. The general counsel is a member of the agency Executive Leadership Team. Each attorney group provides legal advice, litigation support, and regulatory functions. The OGC is actively involved in strategic planning. DHEC currently has approximately 3300 employees, more than half of whom are employed in public health.

PHLN: How has DHEC and the role of attorneys within the agency changed during your tenure?

Bullard: The OGC has evolved over my years at DHEC, transitioning from “legal” counsel, providing support related only to legal issues, to becoming more of an integral part of the team of public health professionals. In the early 1990s, the OGC staff was one quarter the size of our current staff. We now have 23 attorneys for the various departments within our agency. There are four attorneys dedicated to public health. Our team not only provides legal advice and counsel, we also are involved in day-to-day operations; policy development; training opportunities; ethical decision making; occasional litigation; drafting public health and emergency orders for treatment, quarantine, and isolation; supporting the agency compliance department; and drafting laws and regulations and engaging in other legislative issues, to name a few. We have become a part of the team with our clients, who are exceptional. They value their legal team, and use us to assist in all levels of decision making, proactively rather than contacting us only if there is a legal crisis.

PHLN: More generally, how has the field of public health law changed over the course of your career?

Bullard: In many ways, the field has changed dramatically. In others, we are still applying and enforcing laws that have been in effect for more than 50 years. One of the most obvious changes to me was the emergence of public health law as a specialty area of practice, existing and growing slowly in the 1990’s and then dramatically after the September 11, 2001, terrorist attacks. The aftermath of the attacks, the threat of terrorism becoming a constant in our lives, the implementation of the Emergency Health Powers Act that followed, and new and emerging infectious diseases have us in an ever-evolving day-to-day crisis response mode.

Of course, not all changes are of the magnitude of catastrophic events. There have been many advances and improvements in public health practice and policy, including interventions in acute and chronic diseases, handling outbreaks and responsiveness, and the development of the Public Health Law Program, the Network for Public Health Law, and other organizations devoting money, time, and resources to the advancement of public health law. Legal epidemiology has opened our eyes and minds to the effect law has on public health challenges, and the collaborative ways law can impact positive outcomes for acute and chronic diseases.

I have been a member of the American Health Lawyers Association since its inception, as well as its predecessor organizations, but even within an organization dedicated to health law, there is almost no focus on public health law. Until the first public health law conference held in Atlanta, I did not fully appreciate the existence of an organization of people dedicated to public health law. At that conference, I met CDC’s Montrece Ransom, Gene Matthews, and many others who have been my mentors. I was grateful to network with others who were engaging, educating, consulting, and assisting people like me with any subject and project. Although the program is now every two years, it is still as dynamic and beneficial as the first I attended. I still experience the “wow” factor with each conference and the topics presented.

PHLN: Several public health attorneys, including PHLP Director Matthew Penn, credit you with inspiring them to pursue careers in public health law. What is the role of mentorship in building the field of public health law and why is it important?

Bullard: All who were mentors to me encouraged interest, involvement, and passion in public health law. I benefitted from experts in public health law speaking about their involvement in shaping issues, developing interventions, conducting training, and inspiring others to get involved in this area of practice. Each attorney who has an interest in pursuing public service should understand and appreciate the impact public health law has on every person’s life. No other field of law touches every day and phase of life. This area is so dynamic—always evolving with new issues, trends, threats, impacts—and each is interesting and provocative.

It is gratifying to watch lawyers with whom I have worked, including Matthew Penn, excel in so many ways as well as being featured on national and international stages. I can’t take credit for Matthew’s love of public health law. He taught me much more in his time at our agency than I taught him. He has so many talents—I am very humbled to be mentioned as a mentor.

For me, it’s critical to assist in providing opportunities for each of the attorneys I mentor to attend national meetings, arrange for speaking engagements, bring training programs to our state, encourage participation in committees and task forces of state and national organizations, and obtain financial support for attendance at training events and conferences. My mentors have been generous in supporting our team’s professional development. I strongly believe these opportunities and active participation build self-confidence and enhance skills in research and public speaking, in additional to showcasing their talents.

PHLN: What barriers discourage attorneys from becoming public health lawyers and what “infects” them with public health law interest in spite of these barriers?

Bullard: Lack of exposure to and training in public health law has resulted in limited awareness of the vast opportunities in this field of law. There are limited positions available: South Carolina has just added its fourth full-time public health counsel, and many states have few or no dedicated public health attorneys. Another barrier is the perception of lower compensation in the public sector than available in private practice.

Fortunately, I find many attorneys today want to move into public service as a means of improving quality of life, in addition to pursuing an interest in the subject matter. We have succeeded in hiring some very talented and well-respected attorneys from other practice areas to join our team, but we are hampered in recruiting efforts to attract a candidate with public health experience due to many factors. Therein lies the importance of the mentoring and training you can get only once you are employed in public health law practice.

We are currently experiencing heightened interest in public health law in South Carolina, since the University of South Carolina (USC) added Professor Jacqueline Fox to its faculty. She is a public health law advocate and teaches health law and policy, public health law, and bioethics, and was a speaker at last year’s Public Health Law Conference. Her students have applied for positions as law clerks with our agency. We have found that many of our law clerks developed a strong interest in public health law only after serving as law clerks or summer interns with DHEC.

PHLN: What advice do you have for attorneys interested in public health law?

Bullard: Take advantage of all the training opportunities available: seek opportunities and classes, engage with public health schools and audit courses, apply for positions and summer programs such as those available through CDC’s Public Health Law Program. Take advantage of online training opportunities, and read current and historical books and articles on the many topics related to public health law. Engage with attorneys involved in public health law in your area, and utilize the state attorney references posted on the Public Health Law Program website to contact persons in other states. Establishing relationships with colleagues in the field is especially helpful to help educate and acquaint the unenlightened to public health law.

PHLN: What does a typical work day look like for you?

Bullard: There is no typical day. I am asked that question every time I interview any prospective attorney. I have never completed a work plan I had envisioned at the start of the day. The excitement of the challenge and uncertainty of each day’s new issue are a few of the reasons I have enjoyed my career in public health law. Every day is interesting, with new issues, problems, unexpected and unanticipated questions, and so many varied and unusual dilemmas. Every day is fascinating, unique, and never boring.

PHLN: You are currently working on policies that will affect how Narcan® (naloxone) is distributed in South Carolina. What effects do you think this will have in the state?

Bullard: DHEC, with the expertise and assistance of our pharmacy director, has implemented a program to obtain naloxone and distribute it to first responders and law enforcement agencies, and provided training for the persons who administer the drug to victims of opioid overdose. We executed a memorandum of understanding with these agencies to ensure drug availability and prompt emergency response. Numerous lives have been saved. We are also working with our state substance abuse agency to expand the availability of the drug in a cost-effective manner and to train not only first responders but also caregivers for persons with addictions. Our policies are enabled by state law effecting the naloxone program.

PHLN: South Carolina is considering legislation to legalize medical marijuana. What responsibility would your office take in regulating this?

Bullard: There is a bill pending in our state legislature that would allow the use of medical marijuana for many conditions, as recommended by a licensed physician. The bill is still in committee. Under the terms of the bill, DHEC would have primary regulatory responsibility for permitting for cultivating, warehousing, and dispensing of the drug, among other responsibilities, and with ongoing monitoring of the legal requirements. The DHEC OGC has been involved in the review of the pending bill as well as commenting on the logistical aspects of the development and implementation of a marijuana cultivation and distribution program.

PHLN: Are you working on any other exciting public health projects?

Bullard: We are working on many issues related to our state prescription monitoring program, adding enhancements and monitoring pending legislation to require checking the database prior to prescribing; pursuing public health accreditation, creating and implementing staff training opportunities, and revisiting and updating older policies, statutes, and regulations. We recently completed a review of all agency regulations and identified opportunities to improve the effectiveness of laws.

PHLN: What is your favorite part of your job?

Bullard: I love engaging with clients, networking with colleagues, confronting novel issues, and introducing other attorneys to the unlimited possibilities of public health law practice. I love working with our partners in the Public Health Law Program on many projects. I have too many favorites.

PHLN: What would you be doing, if not working in public health law?

Bullard: I can’t imagine another career. If I’m forced to leave public health, I think I would take courses to become proficient in another language. I would like to take a few business courses. Senior citizens can audit courses at no cost at our local university.

PHLN: Have you read any good books lately?

Bullard: I’m currently reading Option B: Facing Adversity, Building Resilience and Finding Joy, a book by Sheryl Sandberg and Adam Grant. It has provided insight to dealing with crisis and overcoming challenges in the face of adversity, not only personally but also in helping in our interactions with others who are experiencing loss or other challenges in their lives.

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

Bullard: My list of places I want to visit is constantly expanding. One place my husband and I haven’t been and want to visit is Greece. We plan to take a Mediterranean cruise and visit the Greek islands once we finally fully retire.

PHLN: Do you have any hobbies?

Bullard: I love spending time with our grandson, playing golf, attending USC sporting events, entertaining friends and family, decorating for the holidays, cooking, traveling, and hanging out with my husband, our dog Boogie, and dear friends. Favorite excursions are our “winery crawls” several times a year.

PHLN: Is there anything you would like to add?

Bullard: I appreciate the opportunity to share some thoughts with colleagues. Thank you, PHLP, for asking me.

Public Health Law News Quiz

The first reader to correctly answer the quiz question will be featured in a mini public health law profile in the June 2017 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!

Public Health Law News Quiz Question May 2017

Which three Public Health Law Program externs contributed to Public Health Law News during PHLP’s spring 2017 program?

Public Health Law News Quiz Question April 2017 Winner!

Lisa Sinclair

Question: For which two diseases did PHLP publish menus of healthcare worker and patient vaccine laws for state ambulatory care facilities in the April 20, 2017, edition of the News?

Answer: Pneumococcus and influenza

Employment organization and job title: Health-science policy analyst with CDC’s National Center on Birth Defects and Developmental Disabilities (NCBDDD), Disability and Health Branch.

A brief explanation of your job: I’ve been working within NCBDDD for about 19 years. My work entails keeping abreast of policy and legislative changes that may affect disability and health programs. I am the lead co-coordinator for the Healthy People disability chapter, and I also serve as a project officer for seven state awards and two national organizations.

Education: Bachelor of science in biology pre-med from the University of Detroit; master of public health degree from George Washington University

Favorite section of the News: My favorite section of the News is actually anything related to civil crimes; I am interested in the many ways that people are or are not prepared to handle various situations.

Why are you interested in public health law? My interest in public health law stems from an awareness that the widest reaching and most sustained good can be accomplished through legislation and practice-based policies.

What is your favorite hobby? My favorite hobbies are reading, fitness training (moderate), and Middle Eastern dance.

Court Opinions

California: Psychotherapist records not protected from subpoena in misprescribing drug case, but subpoenas must be narrowly focused.
Cross v. Superior Court of Los Angeles County, California
Court of Appeals of California, Second District, Division Five
Case No. B277600
Filed 05/01/2017
Opinion by Associate Justice Lamar W. Baker

Federal: Judge grants nationwide preliminary injunction for “sanctuary jurisdictions.”
City of Santa Clara v. Trump [PDF – 469KB]
United States District Court for the Northern District of California
Case Nos. 17-cv-00574-WHO and 17-cv-00485_WHO
Filed 04/25/2017
Opinion by District Judge William H. Orrick

Federal: Cigarette retailers are “pervasively regulated”—retailers have a “reduced expectation of privacy,” and probable cause requirements have a “lessened application” applying to warrantless searches.
US v. Mansour
United States District Court, Western District of New York
Case No. 15-CR-160-A
Filed 04/27/2017
Opinion by District Judge Richard J. Arcara

Quote of the Month

Michael Bien, attorney for California prisoners seeking mental health relief

“Some people died while on the waitlist. We’re talking about a group of people where the doctors in the prison system agree that they need to get inpatient care, and the people running the inpatient program also agree the person qualifies. But instead of going, they’re on a waitlist.”—Michael Bien, attorney representing California prisoners seeking mental healthcare

Editor’s note: This quote is from Judge threatens to fine California Prisons for delayed mental health treatment, KQED News, 04/20/2017, by Julie Small and Lisa Pickoff-White

About Public Health Law News

The Public Health Law News is published the third Thursday of each month except holidays, plus special issues when warranted. It is distributed only in electronic form and is free of charge.
The News is published by the Public Health Law Program in the Office for State, Tribal, Local and Territorial Support.

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Disclaimers

News content is selected solely on the basis of newsworthiness and potential interest to readers. CDC and HHS assume no responsibility for the factual accuracy of the items presented from other sources. The selection, omission, or content of items does not imply any endorsement or other position taken by CDC or HHS. Opinions expressed by the original authors of items included in the News, or persons quoted therein, are strictly their own and are in no way meant to represent the opinion or views of CDC or HHS. References to products, trade names, publications, news sources, and non-CDC Web sites are provided solely for informational purposes and do not imply endorsement by CDC or HHS. Legal cases are presented for educational purposes only, and are not meant to represent the current state of the law. The findings and conclusions reported in this document are those of the author(s) and do not necessarily represent the views of CDC or HHS. The News is in the public domain and may be freely forwarded and reproduced without permission. The original news sources and the Public Health Law News should be cited as sources. Readers should contact the cited news sources for the full text of the articles.

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