September 2009 - CDC Public Health Law News
Thursday, September 17, 2009
From the Public Health Law Program,
Office for State, Tribal, Local and Territorial Support,
Centers for Disease Control and Prevention
From the Public Health Law Program, Office of Strategy and Innovation, CDC
*** CMS EMTALA Guidance. On August 14 the Centers for Medicare and Medicaid Services released guidance on Emergency Medical Treatment and Labor Act (EMTALA) requirements and options for hospitals in a disaster. The guidance includes a brief summary of EMTALA requirements and options for hospitals experiencing a surge in demand for emergency department services, a description of rules governing EMTALA waivers, and a summary sheet for hospital and emergency response planning officials. For more information, please visit http://www.cms.hhs.gov/EMTALA/02_
*** Oral Health in Kentucky. The Health Policy Monitor has released Steps to Improve Oral Health in Kentucky. The report, authored by Elena Conis, discusses a Kentucky state law requiring children to have their oral health examined by a dentist before starting school. For more information, please visit http://www.hpm.org/en/Surveys/Emory_University_-_USA/13/Steps_to_Improve_Oral_Health_in_Kentucky.html?content
*** Tobacco Control Law. The latest issue of Legal Update released by the Tobacco Control Legal Consortium features two new publications addressing the Family Smoking Prevention and Tobacco control Act. The publications describe key provisions of the new legislation and describe how the new law is likely to impact tobacco control measures by state and local governments. The newsletter also includes articles on a few significant tobacco lawsuits. For more information, please visit http://tclconline.org/documents/legal-update-summer-2009.pdf.
*** Local Government Prevention of Childhood Obesity. A report presenting 58 actions local governments and community groups can consider adopting to encourage health eating and physical activity in children has been released by the Institute of Medicine. Local Government Action to Prevent Childhood Obesity is available at http://www.nap.edu.
*** Job Opening: Public Health Analyst, Public Health Law Program. The Public Health Law Program at the Centers for Disease Control and Prevention seeks an individual with advanced public health law experience to fill a GS-14 Public Health Analyst position. The vacancy announcements are HHS-CDC-T1-2009-0914 (internal) and HHS-CDC-D1-2009-0526 (external). Job details and application instructions will be published shortly at http://www.usajobs.gov.
*** Mass Antibiotic Dispensing Seminar. The Centers for Disease Control and Prevention will present a webcast exploring some of the legal issues facing state and local Strategic National Stockpile planners as they prepare for a mass antibiotic dispensing campaign. "Mass Antibiotic Dispensing: Legal Ease" will be presented on October 22, 2009, from 1:00 to 2:30 PM Eastern. Please visit http://www2a.cdc.gov/phtn/ for more information.
1. California: Legislature passes health reform, but the governor may not
States and Localities
2. Michigan: Casino won't let county inspect eateries
3. Wyoming: Wyoming examines safety of workers
4. Health workers under pressure to get flu shots
5. PCB risk feared at older N.E. schools
6. Tobacco firms sue to block marketing law
California BPA ban · NIOSH cancer claims · Irregular food safety tests · Florida bed bugs · Hawaii Medical care for Micronesians · Louisiana sobriety tests · New York child flu vaccines · Importation of primate parts · Ohio vicious dog ordinance · Oregon dog laws · Virginia HPV vaccine enforcement · National Federal employee sick leave · Flu on social networking sites · France la bise outlawed · Great Britain chip shop E. coli · New Zealand measles vaccination · Fortified bread
Unintentional injury deaths · Collective actions · Speed limit repeal · Menu labeling · Smoking in federal buildings · Urban renewal · Institutional Review Boards · Evidence-based policy · Prisoner health · Pandemic standards of care · Health care reform · Trade agreement impact · Electronic cigarettes · Poultry antibiotic resistance · Health reform · District of Columbia v. Heller
New York lead poisoning · Informed consent · Federal chemical emissions Water contamination · Medicaid payment eliminations Adult homes · Cigarette tort claims · Vaccine injuries
Quotation of the Month
Caitlin Lomen, Whole Foods employee
"Legislature passes health reform, but the governor may not"
LA Times (09/09/2009) Patrick McGreevy and Eric Bailey
The California Legislature passed health reform legislation on September 8 that bars health insurance companies from rescinding coverage for patients with serious illnesses. The law would prevent companies from canceling a policy unless regulators found that a patient had intentionally misled the insurer about a preexisting condition. The measure also will clarify what information patients must provide to insurers when applying for coverage. Bill author Assemblyman Hector De La Torre said that the legislation is necessary because thousands of Californians have had their health insurance canceled when they have needed it most. "The insurance industry has made billions by unfairly canceling health policies, with little to no oversight before rescinding a patient's insurance coverage," he said. However, the legislation is not supported by groups like the California Chamber of Commerce, which claims it will lead to more litigation, and legislators like Sen. Mark Wyland, who believes that regulations proposed by the Department of Insurance adequately address the problem. Rescission received nation-wide attention after a recent investigation by the U.S. House Subcommittee on Oversight and Investigations found that more than 20,000 Americans have had their coverage cancelled, resulting in more than $300 million in savings for health insurers. The bill now goes to Governor Arnold Schwarzenegger for his signature.
"Casino won't let county inspect eateries"
Lansing State Journal (08/24/2009) Elizabeth Willis
FireKeepers Casino, which is located on sovereign American Indian land governed by the Nottawaseppi Huron Band of Potawatomi, is not required by Michigan law to undergo restaurant inspections by county health officials. The casino instead has hired a private company to perform inspections at its five restaurants. Tribal casinos are licensed by the U.S. Department of Interior's National Indian Gaming Commission (NIGC) and must abide by federal code. Although the code allows tribes to write their own health and safety standards, the NIGC requires that the casinos are inspected regularly and can close facilities that do not undergo regular inspection or adhere to standards adopted by the tribe. If a patron contracted a foodborne illness at a tribal casino, the individual and state and local governments would be barred from suing the tribe, as only federal agencies have jurisdiction over tribal casinos. So far, no cases of foodborne illness have been reported from tribal casinos, and Eric Bush, director of tribal gaming for the Michigan Gaming Control Board, believes that the threat of bad press encourages tribal restaurants to implement safe food handling practices. "I suppose people would just vote with their feet and walk out if they thought the casino were [sic] serving bad food," he said. FireKeepers Casino officials report that they will exceed state regulations by using a private company to perform inspections. County health departments require twice yearly inspections, but FireKeepers will be inspected four times a year.
"Wyoming examines safety of workers"
Billings Gazette (09/07/2009) Dustin Bleizeffer
Wyoming, which has the highest workplace fatality rate in the nation at 17.1 per 100,000 workers, is taking steps to reform workplace safety laws. Under current law, the Occupational Safety and Health Administration must investigate a workplace accident if three or more workers are sent to the hospital or if a fatality occurs. Advocates of workplace safety were able to successfully lobby the legislature this year to raise some workers' compensation benefits for injured workers and for families of those killed, but say that further reform is needed. They point to a lack of third party liability in the workplace and to existing case law that has made it difficult for injured workers and their families to sue companies. This, in addition to immunity provided by workers' compensation, and "the lack of any effective administrative enforcement mechanism, essentially means that workplace safety is largely up to each individual employer," said Cheyenne attorney George Santini. Governor Dave Fruedenthal has formed a task force to identify what factors are causing the high fatality rate and to identify solutions. The task force will not examine duty of care proposals, but will work to develop a central database to track workplace accidents. The task force will collaborate with the National Institute for Occupational Safety and Health (NIOSH) which successfully reduced fatalities in Alaska's fishing and logging industries.
"Health workers under pressure to get flu shots"
Boston Globe (09/08/2009) Lindsey Tanner and Valerie Bauman
The New York State Health Department adopted an emergency regulation on August 13 requiring all hospital, treatment center, and home care workers to receive seasonal and H1N1 influenza vaccinations by November 30. While several large hospitals around the country require employees to be vaccinated against the flu, New York is the first state to adopt a regulation. Individual clinics and hospitals will be responsible for enforcing the law, and workers can only receive an exemption for certain health reasons, such as an allergy to the flu shot. Not all healthcare workers are supportive of the measure and, in fact, a Centers for Disease Control and Prevention survey reported that fewer than half of healthcare workers received a flu vaccine last year. Some like Sandra Morales, a New York City nurse, believe requiring the shot infringes on personal freedoms. "It's crossing the line, and I'm opposed to that," she said. Additionally, hospitals are unsure about the legality of actions they can take to enforce the regulation, said Bill Van Slyke of the Healthcare Association of New York. Still, some large hospitals have successfully enforced flu vaccine requirements. Virginia Mason Medical Center in Seattle began requiring the flu vaccines for workers in 2005. Employees who refuse to be vaccinated must wear a mask during flu season or risk being fired. So far, only a few employees have been fired and that occurred during the first year of the rule. Flu shot requirements are supported by infectious disease specialists like Gregory Poland, a Mayo Clinic vaccine specialist, who said that health workers are ethically obligated to be vaccinated.
"PCB risk feared at older N.E. schools"
Boston Globe (09/06/2009) Beth Daley
The Environmental Protection Agency (EPA) is issuing rules to guide schools and business owners on how to test for polychlorinated biphenyls (PCBs) in building materials and how to react if they are found. PCBs, which were banned in the 1970s for being carcinogens, were used in window, door, and brick caulking in hundreds of schools built in the 1960s and 1970s. The materials deteriorate as they age, and can break down into particles and vapors that are gradually released into the air and can be inhaled. Scientists do not know if this poses a health risk to students and teachers; research is being conducted to determine if the material is inhaled at a high enough level to be harmful. "It's really an emerging issue. We don't want to scare people, but the bottom line is it's a fact and we have to deal with it," said Kim Tisa, PCB coordinator for the EPA's New England office. While no federal law requires schools to test for PCBs, the EPA does require building materials to be removed if it contains PCB levels about 50 parts per million. "It's contradictory . . . because you don't have to test, but if you do and you find it over 50 parts per million, then this is whole cascade of regulatory requirements kicks in," said Robert Herrick, senior lecturer at the Harvard School of Public Health. Many schools have not tested for PCBs and some officials say that they do not want to because removing the materials could costs millions of dollars. "I hear, 'I got MCAS, pandemic flu, and now you are giving me PCBs'," said Mike Sireci, the environmental health and safety committee consultant for the Massachusetts Teachers Association. As an incentive for schools to test, two New York congressmen have filed a bill to provide low interest loans and grants to educational agencies to remove or control PCBs during renovations or repairs of old schools. "It's the right thing to do to look. We have an opportunity here to avoid public alarm and control the risks," said William VanSchalkwyk, managing director of MIT's Environment, Health, and Safety Programs.
"Tobacco firms sue to block marketing law"
The New York Times (09/01/2009) Duff Wilson
Tobacco companies in the United States filed the first lawsuit, in federal district court in Kentucky, against the Food and Drug Administration, challenging a recently enacted federal law containing marketing and speech restrictions. The landmark law, signed by President Barrack Obama in June, requires new warning labels on packaging, limits advertising to black and white for certain audiences comprised of greater than 15% or two million readers under age 18, and bans advertising within 1000 feet of a school or playground, among other restrictions, which critics argue violate First Amendment free speech rights of the tobacco companies. Floyd Abrams, an attorney representing Lorillard Tobacco Company, argues, "The government has great power to protect children from certain products, including cigarettes, but tobacco is a legal product for adults. When you cut back their ability to speak to lawful purchasers, you do start running into legal issues." Clifford E. Douglas, executive director of University of Michigan Tobacco Research Network contends, "If there's any commercial speech that is constitutional to restrict, it's the type of marketing covered in this legislation." Altria Group, Inc., maker of Marlboro products, is not a participant in this lawsuit and supported the bill which is designed to reduce promotion of tobacco use to children and youth smoking.
California: Assembly delays final vote on banning BPA in baby products
"Assembly delays vote on infant health safety measure"
Los Angeles Times (09/10/2009) Margot Roosevelt
California: NIOSH recommends new class of workers for special cancer claims designation
"Decision could make it easier for former field lab workers to pursue cancer claims"
Ventura County Star (08/29/2009) Teresa Rochester
California: Hundreds of food safety certifications invalidated due to irregular testing procedures
"Testing of food handlers invalid"
San Francisco Chronicle (08/26/2009) Heather Knight
Florida: New bedbug regulations empower health departments
"Fla. officials battle over growing bedbug problems"
Miami Herald (08/30/2009) Scott Powers and Sara K. Clarke
Hawaii: Federal court order requires state-funded medical care to Micronesians to continue
"Court blocks Hawaii from cutting health benefits for Micronesians"
Honolulu Advertiser (09/02/2009) Mary Vorsino
Louisiana: Drivers refusing sobriety test can lose license for one year
"Sobriety test refusal brings stiffer penalties in Louisiana"
Times-Picayune (09/01/2009) Brett Duke
New York: Insurers must provide free seasonal and H1N1 vaccines to children
"Insurers must cover swine flu vaccines for children"
Poughkeepsie Journal (09/11/2009) Jon Campbell
New York: Woman imported exotic primate parts to eat, risked infectious disease
"Woman who imported monkey parts pleads guilty"
Staten Island Advance (09/09/2009) Frank Donnelly
Ohio: Vicious dog ordinance imposing criminal liability with first attack upheld
"Top court upholds vicious-dog law"
Plain Dealer (08/27/2009) Reginald Fields
Oregon: Despite law, many take non-service dogs into food stores
"Oregon wants 'dog friendly' to be less so"
New York Times (09/03/2009) William Yardley
Virginia: State lax on enforcing HPV vaccination law
"HPV vaccine a suggestion, not mandate in D.C., Va."
Associated Press (08/31/2009) Dena Potter
National: Regulation would allow federal employees to use sick leave to provide care
"Expanded sick leave would cover swine flu caretakers"
Washington Post (08/27/2009) Ed O'Keefe
National: Social networking websites may be used to monitor disease trends
"Flu trackers encourage patients to blog about it"
Washington Post (09/02/2009) Michael E. Ruane
France: Kiss greeting outlawed by schools and businesses to prevent influenza transmission
"France facing 'la bise' ban over swine flu fears"
Telegraph (09/08/2009) Henry Samuel
Great Britain: Chip shop suspected of E.coli outbreak passes test, must be allowed to re-open
"Wrexham chip shop at centre of E.coli outbreak to re-open"
Daily Post (09/05/2009) Steve Bagnall
New Zealand: Unimmunized kids to be excluded from school if measles outbreak occurs
"Measles kids face school ban"
Dominion Post (08/20/2009) Ruth Hill
New Zealand: Mandatory folic acid fortification of bread postponed due to customer fear
The West Australian (08/28/2009) Kim MacDonald
"Trends in unintentional injury deaths, U.S., 1999-2005: age, gender, and racial/ethnic differences"
American Journal of Preventive Medicine (09/09) Guoqing Hu and Susan P. Baker
"An account of collective actions in public health"
American Journal of Public Health (09/09) Gil Siegal, Neomi Siegal, and Richard J. Bonnie
http://www.ajph.org/cgi/content/abstract/99/9/1583 (subscription required)
"Long-term effects of repealing the national maximum speed limit in the United States"
American Journal of Public Health (09/09) Lee S. Friedman, Donald Hedeker, and Elihu D. Richter
http://www.ajph.org/cgi/content/abstract/99/9/1626 (subscription required)
"Menu labeling as a potential strategy for combating the obesity epidemic: a health impact assessment"
American Journal of Public Health (09/09) Tony Kuo and others
http://www.ajph.org/cgi/content/abstract/99/9/1680 (subscription required)
"The politics of smoking in federal buildings: an executive order case study"
American Journal of Public Health (09/09) Daniel M. Cook and Lisa A. Bero
http://www.ajph.org/cgi/content/abstract/99/9/1588 (subscription required)
"Public health, the APHA, and urban renewal"
American Journal of Public Health (09/09) Russ P. Lopez
http://www.ajph.org/cgi/content/abstract/AJPH.2008.150136v1 (subscription required)
"Understanding bureaucracy in health science ethics: toward a better Institutional Review Board"
American Journal of Public Health (09/09) Barry Bozeman, Catherine Slade, and Paul Hirsch
http://www.ajph.org/cgi/content/abstract/99/9/1549 (subscription required)
"Understanding evidence-based public health policy"
American Journal of Public Health (09/09) Ross C. Brownson, Jamie F. Chriqui, and Katherine A. Stamatakis
http://www.ajph.org/cgi/content/abstract/99/9/1576 (subscription required)
"Using the Constitution to improve prisoner health"
American Journal of Public Health (09/09) Gabriel B. Eber
Gabriel B. Eber
http://www.ajph.org/cgi/content/extract/99/9/1541-a (subscription required)
"Altered standards of care during an influenza pandemic: identifying ethical, legal, and practical principles to guide decision making"
Disaster Medicine and Public Health Preparedness (09/14/09) Donna Levin and others
http://www.dmphp.org/cgi/content/abstract/DMP.0b013e3181ac3dd2v1 (subscription required)
"Health care reform requires law reform"
Health Affairs (09/09) Timothy S. Jost
Health Care Reform Requires Law Reform
http://content.healthaffairs.org/cgi/content/short/hlthaff.28.5.w761v1 (subscription required)
"A trade agreement's impact on access to generic drugs"
Health Affairs (09/09) Ellen R. Shaffer and Joseph E. Brenner
http://content.healthaffairs.org/cgi/content/abstract/hlthaff.28.5.w957 (subscription required)
"FDA: electronic cigarettes may be risky"
Journal of the American Medical Association (09/02/09) Bridget M. Kuehn
"Poultry, politics, and antibiotic resistance"
The Lancet (09/05/09) Paul Webster
"Reform, regulation, and research - an interview with Gail Wilensky"
New England Journal of Medicine (09/10/09) JK Iglehart
http://healthcarereform.nejm.org/?p=1530 (subscription required)
Law and the public's health: District of Columbia v. Heller: implications for public health policy and practice
Public Health Reports (09/09) Joel Teitelbaum and Erica Spector
http://www.publichealthreports.org/archives/issuecontents.cfm?Volume=124&Issue=5 (subscription required)
New York: Complaint of lead poisoning and disability in city housing reinstated
Bygrave v. New York City Housing Authority
Supreme Court of New York, Appellate Division, First Department
Opinion filed September 1, 2009
Opinion by Judge Gonzales
New York: Damages for lack of informed consent affirmed
D'Esposito v. Kung
Supreme Court of New York, Appellate Division, Second Department
Decided September 8, 2009
Opinion by Judge Mastro
Alabama: Class action lawsuit over chemical emissions from manufacturer sustained
Brantley et. al v. International Paper Co.
U.S. District Court for the Middle District of Alabama, Northern Division
No. 2:09cv230-WHA (WO)
Opinion filed August 21, 2009
Opinion by Judge Albritton
California: Strict liability of city for soil and groundwater contamination upheld
Adobe Lumber, Inc. v. Hellman, et al.
U.S. District Court for the Eastern District of California
No. Civ. 05-1510 WBS EFB
Opinion filed September 8, 2009
Opinion by Judge Shubb
https://ecf.caed.uscourts.gov/cgi-bin/ShowIndex.pl (subscription required)
California: Bill eliminating Medicaid payments for optional services upheld
The Gray Panthers of San Francisco v. Schwarzenegger
U.S. District Court for the Northern District of California
No. C 09-2307 PJH
Opinion filed September 1, 2009
Opinion by Judge Hamilton
https://ecf.cand.uscourts.gov/cand/index.html (subscription required)
New York: Adult homes for mentally ill banned under federal law
Disability Advocates, Inc. v. Pataki, et al.
U.S. District Court for the Eastern District of New York
Opinion filed September 8, 2009
Opinion by Judge Garaufis
New York: Tort claims against cigarette manufacturer upheld
Grill v. Philip Morris USA, Inc.
U.S. District Court for the Southern District of New York
Opinion filed September 8, 2009
Opinion by Judge Seibel
http://www1.nysd.uscourts.gov/pacer.php (subscription required)
Washington, D.C.: Compensation for autoimmune hepatitis from vaccine upheld
Rotoli, et al. v. Secretary of Health and Human Services
U.S. Court of Federal Claims
No. 99-644V, No. 99-631V, No. 99-660V, No. 99-639V, and No. 01-307V
Opinion filed September 2, 2009
Opinion by Judge Firestone
__________PHL NEWS QUOTATION OF THE MONTH___________
"Like when you see little Foo Foo in someone's purse, you know that's not a service animal."
-- Caitlin Lomen, Whole Foods employee, on customers bringing non-service dogs into the store.
The CDC 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. News content is selected solely on the basis of newsworthiness and potential interest to readers. CDC and DHHS assume no responsibility for the factual accuracy of the items presented. The selection, omission, or content of items does not imply any endorsement or other position taken by CDC or DHHS. 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 DHHS. References to products, trade names, publications, news sources, and non-CDC Websites are provided solely for informational purposes and do not imply endorsement by CDC or DHHS. 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. The News is in the public domain and may be freely forwarded and reproduced without permission. The original news sources and the CDC 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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The News is published by the Public Health Law Program, Office of Strategy and Innovation, Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services (DHHS). Lindsay Culp, M.P.H., Acting Editor. Special thanks to Tara Ramanathan and Stacie Kershner for their work on this issue.