April 2010 - CDC Public Health Law News
Thursday, April 15, 2010
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
***Social Distancing Law Article. Karen Leeb, Denise Chrysler, and Richard Goodman have published the article The Social Distancing Law Project Template: A Method for Jurisdictions to Assess Understanding of Relevant Legal Authorities in the March 2010 issue of the journal Disaster Medicine and Public Health Preparedness. The article summarizes the Social Distancing Law Project (SDLP) and its implementation by 17 selected jurisdictions in 2007, and reports on the experience of one jurisdiction, Michigan, as a case example. For the full text of the article, please visit http://www2a.cdc.gov/phlp/docs/Social%20Distancing%20Law%20Project%20Template%20article%20March%202010.pdf . The CDC Public Health Law Program gratefully acknowledges the American Medical Association's permission to post this article.
***William Mitchell Public Health Law Center. The Robert Wood Johnson Foundation has awarded a grant to the Public Health Law Center at the William Mitchell College of Law to develop a network of experts and to provide legal technical assistance, analysis, coordination, and training to public health professionals, lawyers, and health advocacy organizations across the country. The project will be led by Dan Stier, formerly of CDC's Public Health Law Program, and Doug Blanke, former Minnesota Assistant Attorney General. For more information, visit http://www.publichealthlawcenter.org/.
***APHA Health Law Section. The American Public Health Association Health Law Section can now be found on the web at www.publichealthlaw.org. The site has contributions in public health law scholarship and practice as well as information about APHA and the Health Law Section.
***FDA Tobacco Rules. The Food and Drug Administration (FDA), under its new authority to regulate tobacco products, has issued rules restricting tobacco industry marketing and sales to youth. The new rules take effect June 22, 2010. To read the rules, visit http://www.regulations.gov/search/Regs/contentStreamer?
***Tobacco Webinar. The Tobacco Control Legal Consortium will offer a free webinar on April 29, 2010 from 2:00-3:30 p.m. Central Time, which will address preemption and First Amendment issues that state and local governments may face when regulating the advertising and promotion of tobacco products under the new authority granted to them by the Family Smoking Prevention and Tobacco Control Act. To register, please send an e-mail to email@example.com. The webinar will be recorded and posted on the Tobacco Control Legal Consortium's website after the event (http://www.publichealthlawcenter.org/programs/tobacco-control-legal-consortium).
*** Childhood Obesity Webinar. The National Policy & Legal Analysis Network to Prevent Childhood Obesity (NPLAN) and KaBOOM! will offer a free webinar on April 21, 2010 at 11 a.m. Eastern Time, on how joint use agreements can be used to open up school recreational facilities for after-hours community use. NPLAN staff attorneys will discuss practical strategies for developing joint use agreements and how liability laws affect joint use. To register, visit http://www.nplanonline.org/nplan/news/learn-how-open-school-grounds-recreatio.
1. Mines fight strict laws by filing more appeals
States and Localities
2. California: California case will test N.F.L. teams' liability for dementia
3. Florida: Equestrian charged with HIV-related offense
4. Wisconsin: DA's sex ed warning befuddles Wis. Teachers, kids
5. Deadly blood colors debate
6. A TV show and Congress tackle school lunches
Indiana dating violence · Kansas pharmacist flu shots · Louisiana environmental racism · Maine immunization costs · Mississippi obese lawmakers · New Jersey young driver decals · Rhode Island salmonella suit · Texas prison sex abuse · Wisconsin drunk driving · National unprocessed dairy · Chinese drywall · Smokeless tobacco use · Food safety bill · Pilot antidepressants · Quarantine regulations · China cooking oil · Malawi HIV bill
School soft drinks • Health impact pyramid • Romania fast food tax • Libel laws • Cigarette excise taxes • Cigarette minimum price laws • Health reform privacy provisions
Hospital tax exemptions • Access to mentally disabled residents • Condom claim • Baby turtle regulation • Medical opinions privilege • Gene patents • Smokeless tobacco • Taxing tobacco • Truck emissions • Ambulance authority • Causation for vaccine injuries
This Month's Feature
Law Behind the News. This month, we feature legislation from the U.S. Congress, the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act.
"Mines fight strict laws by filing more appeals"
New York Times (04/06/2010) Gardiner Harris and Erik Eckholm
In the wake of the recent mine explosion in Montcoal, West Virginia, that killed 25 miners, attention has once again focused on mine safety. The 2006 passage of tougher federal mining laws gave greater power to federal investigators to cite mines with persistent violations, but mining companies have deflected the tougher regulations by appealing more of the citations. In March shortly before the explosion, federal inspectors found dangerous accumulations of coal dust at the Big Branch mine. Last year the Montcoal Upper Big Branch Mine was cited 50 times for failing to conduct proper inspections that would have identified unsafe conditions. Massey Energy Company, owner and operator of the Big Branch mine, appealed 37 of those citations. The appeal rate is now three times higher than before the federal regulations took effect resulting in a backlog of 18,000 pending appeals and $210 million in contested penalties. Mine operators complain that the government's citation process is "irrational." Don Blankenship, Massey's Chief Executive, said in a radio interview that "violations are unfortunately part of the mining process." During a February hearing, California Congressman George Miller said that the growing number of appeals threatens to "render the federal efforts to hold mine operators accountable meaningless, " and mining safety experts express similar concerns.
[Editor's Note: For more information about the MINER Act of 2006, please visit http://www.cdc.gov/niosh/mining/mineract/mineract.htm.]
"California case will test N.F.L. teams' liability for dementia"
New York Times (04/05/2010) Alan Schwarz
California is a workers' compensation haven for retired professional athletes with delayed injuries due to a statute of limitations that only begins when an employer formally advises an employee of his right to workers' compensation, and a requirement that an athlete have played only one game within California to file for cumulative compensation. Recent studies linking professional football to long-term neurological problems such as depression, cognitive decline, chronic traumatic encephalopathy, and memory-related diseases, formed the basis of a ground-breaking workers' compensation claim by Dr. Eleanor Perfetto, wife of former lineman Ralph Wenzel. Dr. Perfetto claims Mr. Wenzel's dementia at age 67 was related to his career in the National Football League (N.F.L.) from 1966 to 1973. About 700 other such claims have been filed for orthopedic injuries, incurring liabilities to the N.F.L. of $100,000 to $200,000 each, but Mr. Wenzel's claim could fetch more than $1 million for past, current, and future medical costs under California law. While his case could be decided on its merits alone, the potential for a flood of similar claims has had unexpected results: the N.F.L. unsuccessfully lobbied the California legislature to exclude professional athletes from workers' compensation benefits, the Arena Football League has not entered California, some N.F.L. teams contract with athletes to file claims in states where cumulative trauma is not compensable, and the N.F.L. is considering altering its rules to decrease contact in practice and prohibit the three-point stance. The financial burdens on the N.F.L. and its insurers could toll over $100 million.
"Equestrian charged with HIV-related offense"
New York Times (04/11/2010) Katie Thomas
Darren Chiacchia, an Olympic bronze medalist in equestrian, has been charged under a Florida law that makes it a felony for people who are HIV positive to have sexual intercourse without first informing their partners of their condition. Mr. Chiacchia, who was arrested after a former partner accused him of not disclosing his HIV positive status, has pleaded not guilty but faces up to 30 years in prison if convicted. Thirty-two states have HIV criminal statutes, many of which were enacted during the 1980s and 1990s and reflect the apprehension of the time. In Pennsylvania and Louisiana, for example, a person with HIV who bites or spits on another person faces up to 10 years in prison, even though scientists now believe that transmitting the virus through saliva is unlikely. But supporters of the laws say they are necessary to punish people who put others at risk. "Failing to inform somebody can put their life at risk. And I think in a real sense, you're playing Russian roulette with another person's life," said Timothy McCourt, Florida assistant state attorney. James Subjack, a former district attorney in Chautauqua County, New York, believes the laws are necessary to protect the public from people who seek to intentionally infect others with HIV. Mr. Subjack, who prosecuted Nushawn J. Williams for infecting more than a dozen women with HIV, said, "How would you convince a jury, for example, that when some guy is having random sex with somebody else, that it was his intent to kill them as opposed to have sex?" HIV and AIDS advocates argue the criminal statutes cause more harm than they prevent because they discourage people from being tested for HIV. "These laws always were a bad idea, and the fact that they were a bad idea only becomes increasingly obvious the more we know about HIV and how it is transmitted," said Catherine Hanssens, executive director of the Center for HIV Law and Policy. Jeanne Bergman, an advocate with AIDS Truth, added, "Down the line, it stigmatizes everybody with HIV because it makes them potential criminals."
[Editor's Note: To read the Florida HIV criminal statute, Fla. Stat. Ann. § 384.24(2), visit http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=Ch0384/SEC24.HTM.]
"DA's sex ed warning befuddles Wis. Teachers, kids"
Associated Press (04/09/2010) Todd Richmond
Last month Juneau County, Wisconsin, District Attorney Scott Southworth sent a memo to area schools warning that health teachers who teach a new sexual education curriculum could face criminal charges for contributing to the delinquency of a minor, a misdemeanor punishable by up to nine months in jail and a $10,000 fine. At issue is a state law enacted in February that requires schools that teach sex education to implement a comprehensive curriculum, including the benefits of abstinence, proper use of contraceptives, how to make responsible decisions, and the criminal penalties for underage sex. Southworth said he does not want to charge teachers with contributing to the delinquency of a minor, but he feels ethically responsible for warning them about the new law. Because Wisconsin law does not require schools to teach sex education, Southworth has advised schools not to do so until the Wisconsin Legislature repeals the law. Janine Geske, a Marquette University law professor and former state Supreme Court justice, believes if Southworth tried to prosecute a teacher for following the new law, the case would likely be dismissed. "To be frank, I can't follow exactly what he's trying to get at. If a teacher is educating a student pursuant to state law ... I don't see how under any examination (that) would be criminal," she said. The state Legislative Council, a group of attorneys that provides legal advice to the legislature, agreed.
[Editor's Note: To read the Wisconsin law at issue, 2009 Wisconsin Act 134, visit http://www.legis.state.wi.us/
"Deadly blood colors debate"
Los Angeles Times (04/04/2010) Andrew Zajac
The Food and Drug Administration's (FDA) announcement that it would review a quarter-century-old ban on blood donations from men who have sex with men (MSM) has incited debate between the hemophilia community and the gay rights community, the Red Cross, the American Medical Association, and others. Although the FDA plans to consider alternative strategies to maintaining the safety of the blood supply in the United States, HIV is known to have been transmitted via blood products nine times from 1994 to 2002, the year the last recorded transmission occurred, according to CDC. Item number 34 on the standard 48-question history form for male blood donors asks from 1977 to the present, "have you had sexual contact with another male, even once?" Potential donors answering "yes" are prohibited from donating blood for life. Decried as discriminating, stigmatizing, and unfairly excluding those from a community-building activity, the rule against donation is unlike the restrictions on heterosexuals who engage in risky behavior. "It paints the community with a very broad brush," said Kevin Jones, deputy director of Out and Equal Workplace Advocates, a San Francisco-based nonprofit. However, persons with hemophilia at risk for receiving HIV via tainted blood products oppose changing the standard based on data that show MSM are most at risk for HIV and other sexually transmitted infections (STIs) and the continuing concern of detecting emerging threats in the blood supply. "This was an incredible tragedy. With that history in mind, it's very understandable that members of the hemophiliac community are extremely cautious," said Adam Cuker, a hematologist at the University of Pennsylvania Health System.
[Editor's Note: For more information on HIV transmission through transfusion, see http://www.cdc.gov/hiv/default.htm.]
"A TV show and Congress tackle school lunches"
New York Times (03/31/2010) Kim Severson
Despite recent attention to childhood obesity and its correlation to good health, on March 24 a Senate committee cut by more than half president Obama's proposal for the Child Nutrition Act to authorize $10 billion more on child nutrition and school lunch programs over the next ten years. Although many are disappointed in the cut, people working within the Agriculture Department and Congress to improve school food programs say the bill's $4.5 million increase is an historic improvement. Arkansas Senator Blanche Lincoln, architect of the bill, said, "We'd like to do more and we're going to try, but we've got to get started." Margo Wooten, director of nutrition policy for the Center for Science in the Public Interest and longtime advocate for improved nutrition in schools, said that the bill is still worth supporting because it is the "strongest child nutrition reauthorization bill" she has ever seen. Separately from the Child Nutrition Act the Agriculture Department is also addressing all school nutritional guidelines to work in concert with the Act. Meal standards are being updated for the first time in 15 years, and will require more fruits, vegetables, and whole grains, while also for the first time limiting the amount of calories in each meal. Others still want more funding for school nutrition. Rochelle Davis, founder and executive director of the Healthy Schools campaign has said that new nutritional requirements mean nothing if school districts cannot pay for them, and that accepting small increases in school food financing lets Congress off the hook.
[Editor's Note: For more information on the Child Nutrition Act, visit http://ag.senate.gov/Legislation/FULLCNB10.pdf.]
Indiana : New state law encourages schools to address dating violence
"Ind. Governor signs dating violence bill"
AP Indiana (04/12/2010) Rick Callahan
Kansas : Pharmacists will be allowed to administer flu shots to children above six years of age
"State pharmacies to give flu shots to kids"
Louisiana : African-Americans allege environmental racism
"Human rights panel takes pollution case"
New Orleans Times-Picayune (03/31/2020) Mark Schleifstein
Maine : Legislation lowering cost of immunizations for children signed by Governor
"Maine enacts childhood vaccination bill"
AP Maine (04/05/2010)
Mississippi : Lawmakers in nation's most obese state lose weight with exercise and diet
"Fattest state's lawmakers shed pounds, fried stuff"
Associated Press (03/04/2010) Emily Wagster Pettus
New Jersey : Red decals mandated for drivers under 21 to enforce graduated license program
"Young N.J. motorists to sport decals on vehicles"
AP New Jersey (03/24/2010) Aaron Morrison
Rhode Island : Meat company files lawsuit against spice company linked to salmonella outbreak
"Meat producer sues spice companies over salmonella outbreak"
Providence Journal (04/02/2010) Katie Mulvaey
Texas : Federal government implements new rules to prevent prison sex abuse
"Texas has worst record of prison sex abuse"
Houston Chronicle (04/05/2010) Meredith Simmons and Robert Gavin
Wisconsin: Wisconsin lags on drunk driving legislation
"Progressive Wisconsin slow to curb drunk driving"
Associated Press (04/03/2010) Scott Bauer
National: FDA cites risks of drinking unprocessed dairy products amid reports of illness
"A clash over unpasteurized milk gets raw"
Wall Street Journal (03/30/2010) Laura Landro
National: Federal authorities issue instructions on tainted drywall repair
"Federal authorities tell homeowners to rip out Chinese drywall"
Scripps Howard News Service (04/02/2010) Isaac Wolf
National: FDA requests Reynolds' research on dissolvable smokeless-tobacco use by kids
"In tobacco giant's makeover, no smoke, but plenty of fire"
Wall Street Journal (03/26/2010) David Kesmodel
National: Congress debates food-safety bill
"Small farms balk at food-safety bill"
Wall Street Journal (04/09/2010) Jean Spencer
National: FAA lifts ban on antidepressants for pilots with mild to moderate depression
"U.S. will allow pilots to take antidepressants"
Reuters (04/02/2010) Lisa Richwine and Steve Orlofsky
National: Federal government ends plans to enact new federal quarantine regulations
"White House kills proposal for quarantines"
USA Today (04/02/2010) Alison Young
China: China investigates whether restaurants use recycled cooking oil tainted with food waste
"Chinese scrutinize new food danger: cooking oil"
New York Times (03/31/2010) David Barboza
Malawi: Malawi plans to make it a crime to knowingly infect someone with HIV
"Malawi official defends HIV bill"
BBC News (04/07/2010)
"The worldwide battle against soft drinks in schools"
American Journal of Preventive Medicine (04/2010) Corinna Hawkes
http://www.ajpm-online.net/article/S0749-3797(10)00059-0/fulltext (subscription required)
"A framework for public health action: the health impact pyramid"
American Journal of Public Health (04/2010) Thomas R. Frieden
http://ajph.aphapublications.org/cgi/content/abstract/100/4/590 (subscription required)
"Romania mulls over fast food tax"
The Lancet (03/27/2010) Ed Holt
"England's libel laws: silencing scientific debate"
The Lancet (04/10/2010)
"State cigarette excise taxes - United States, 2009"
MMWR (04/09/2010) K. Debrot and others
"State cigarette minimum price laws - United States, 2009"
MMWR (04/09/2010) K.M. Ribisl and others
"The Health Privacy Provisions in the American Recovery and Reinvestment Act of 2009"
Public Health Reports (04/2010) Melissa M. Goldstein
http://www.publichealthreports.org/archives/issuecontents.cfm?Volume=125&Issue=2 (subscription required)
Illinois: Hospital not entitled to property tax exemption for charitable and religious purposes
Provena Covenant Medical Center v. The Department of Revenue
Supreme Court of Illinois
Filed March 18, 2010.
New York: Mental Hygiene Legal Services no right to access mentally disabled in specific nursing homes
Hirschfeld v. Teller
Court of Appeals of New York
Decided March 30, 2010.
Federal: Dismissal of claim that N-9 spermicidal lubricant increases risk of HIV transmission granted
Gordon v. Church & Dwight Co.
U.S. District Court, Northern District of California
No. C 09-5585 PJH.
Decided April 2, 2010.
https://ecf.cand.uscourts.gov/cgi-bin/ShowIndex.pl (subscription required)
Federal: Regulation banning the sale of baby turtles upheld
Independent Turtle Farmers of Louisiana, Inc. v. U.S.
U. S. District Court, Western District of Louisiana, Alexandria Division.
Civil Action No. 1:07-cv-00856.
Decided March 30, 2010.
https://ecf.lawd.uscourts.gov/cgi-bin/ShowIndex.pl (subscription required)
Federal: State Dept. of Health records of medical opinions during incarceration withheld
Callahan v. County of Schenectady
U.S. District Court, Northern District of New York
No. 08-CV-760 (GLS/DRH).
Decided March 15, 2010.
Magistrate Judge Homer
http://www.nynd.uscourts.gov/cmecf/ (subscription required)
Federal: Human BRCA1 and BRCA1 genes and sequences unpatentable
Association for Molecular Pathology v. U.S. Patent and Trademark Office
U.S. District Court, Southern District of New York
No. 09 Civ. 4515.
Decided March 29, 2010.
http://www.nysd.uscourts.gov/ecf.php (subscription required)
Federal: Preliminary injunction of city ordinance restricting sale of smokeless tobacco denied
U.S. Smokeless Tobacco Manufacturing Company v. City of New York
U.S. District Court, Southern District of New York
No. 09 Civ. 10511(CM).
Decided March 23, 2010.
Opinion by Judge McMahon
http://www.nysd.uscourts.gov/ecf.php (subscription required)
Federal: Preliminary injunction restraining taxing of sale of tobacco products denied
Muscogee (Creek) Nation v. Henry
U.S. District Court, Eastern District of Oklahoma
No. CIV 10-019-JHP.
Decided March 18, 2010.
https://ecf.okeb.uscourts.gov/cgi-bin/WrtOpRpt.pl (subscription required)
Federal: EPA support of California rule limiting emissions from non-road engines upheld
American Trucking Associations, Inc. v. E.P.A.
U.S. Court of Appeals, District of Columbia Circuit
Decided April 2, 2010.
Circuit Judge Kavanaugh
Federal: Dept. of Health's blocking of sale of debtor's expired ambulance operating authority upheld
In re Cabrini Medical Center
U.S. Bankruptcy Court, Southern District of New York
No. 09-14398 (AJG).
Decided April 7, 2010.
Chief Bankruptcy Judge Gonzalez
Federal: No compensation under National Childhood Vaccine Injury Act without showing causation
Shaw v. Secretary of the Department of Health and Human Services
United States Court of Federal Claims.
Filed March 17, 2010.
__________________LAW BEHIND THE NEWS___________________
In March 2010 President Obama signed into law The Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act. With an eye toward ultimately controlling health care costs, this legislative reform of American health care put into effect various public health provisions aimed at promoting healthier living for all Americans. Title IV of the Patient Protection and Affordable Care Act authorizes several initiatives to modernize disease prevention and public health systems through large scale programs as well as individual empowerment.
The Act establishes a National Prevention, Health Promotion and Public Health Council which will advance healthy policies through creation of a national prevention and health promotion strategy. The Act establishes a public health fund to be administered through the Department of Health and Human Services (HHS) and will provide for "expanded and sustained national investment in prevention and public health" programs. The Act also allows states to purchase adult vaccines under Centers for Disease Control and Prevention (CDC) contracts and authorizes a state demonstration program to improve immunization coverage, and creates an oral health care prevention education program at CDC which shall target key populations.
To encourage healthier individual choices, the Act requires restaurant chains with 20 or more establishments to display "in a clear and conspicuous manner" calorie content for most standard menu items, and to make available upon request information about fat, cholesterol, sodium, carbohydrate, and protein. The Act also requires creation of a web-based tool to assist people in designing their own personalized prevention plan, and provides funding for a pilot program to test the impact of providing wellness planning to at-risk populations who utilize community health centers. The Act also authorizes creation of a "public-private partnership for prevention and health promotion outreach", including an education campaign and a science-based media campaign to raise awareness of health improvement and disease prevention.
The Act also strives to create healthier communities and workplaces. On the community level, the Act authorizes competitive grants to states and localities to fund programs aimed at reducing chronic disease, addressing health disparities, and developing a stronger evidence-base of effective prevention. A new federal trust fund will support bicycle paths, playgrounds, sidewalks, and hiking trails. The Act supports CDC research on community preventive intervention, and establishment of a demonstration project to reduce child obesity.
In the workplace the Act promotes wellness by encouraging employers to offer premium discounts and awards for up to 30% of an individual's premium if they satisfy defined health standards, and requires the CDC to study, evaluate, and educate employers about the benefits of worksite health and wellness promotion. Additionally, the Act requires employers with 50 or more employees to provide a "reasonable break time" for new mothers to express breast milk for one year after the child's birth, and provide "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk." The act will also make it easier for coal miners disabled by black lung disease to collect benefits. If a miner has worked for at least 15 years and is totally disabled from black lung disease, the Act creates a legal presumption he and his widow are entitled to benefits.
The Act promotes prevention and wellness programs for older adults and the aging population by authorizing free annual wellness visits and personalized prevention planning services under Medicare. It also authorizes grants to state and local health departments to create programs for older adults that evaluate for chronic disease risk factors, conduct evidence-based public health interventions, and assist at-risk individuals to receive clinical treatment. To access the full text of the law, visit http://www2a.cdc.gov/phlp/docs/patient-protection-affordable-care-act.pdf .
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.
For past issues or to subscribe to the CDC Public Health Law News, visit http://www.cdc.gov/phlp/news/archives.html. For help with subscriptions or to make comments or suggestions, send an email to Lindsay Culp at firstname.lastname@example.org.
The News is published by the Public Health Law Program, Office of State, Tribal, Local, and Territorial Support, Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services (DHHS). Lindsay Culp, M.P.H., Editor. Special thanks to Rebecca Propst, J.D., and Tara Ramanathan, M.P.H., for their help on this issue.