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January 2012 - CDC Public Health Law News

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Thursday, January 19, 2011

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

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Director's Note

Happy New Year! With a new year comes a new legislative session for most of you. For our first 2012 edition, we have included an interview with Amy Winterfeld, an attorney who works on public health law issues for the National Conference of State Legislatures (NCSL). NCSL stands as a great resource for all things legislative and I hope you enjoy Ms. Winterfeld's thoughts about the issues she thinks many states will be grappling with over this next session.

Matthew S. Penn, Director
Public Health Law Program

In this Edition


Top Stories

Briefly Noted

This Month's Feature:

Profiles in Public Health Law Interview with Amy Winterfeld of the National Conference of State Legislatures

Court Opinions

  1. California: Toxic Substances Control Account
  2. California: Anti-SLAPP motion denied
  3. Colorado: Uranium and vanadium mill
  4. New York: Lack of informed consent
  5. Virginia: Parental rights of sperm donor
  6. Federal: "Right to Know"
  7. Federal: Underground Storage Cleanup Fund
  8. Federal: Social Security Disability


  1. Legal Tool: Social Distancing Law Project. With the support of Oregon's Public Health Preparedness Program, Shannon O'Fallon, Senior Assistant Attorney General for the Oregon Department of Justice, collaborated with Josephine County, Oregon on a model memorandum of understanding (MOU). The MOU established the roles and responsibilities of public health officials and law enforcement in enforcing public health laws. The Law Enforcement-Public Health MOU was part of the Social Distancing Law Project, which was sponsored by the CDC and directed by the Association of State and Territorial Health Officials. The Social Distancing Law Project provides jurisdictions with tools to assess, improve, and coordinate social distancing. Find more information about the Oregon MOU, The Social Distancing Law Project, read the Oregon MOU, or similar MOU template.
  2. Model Aquatic Health Code. The Regulatory Program Administration module of the Model Aquatic Health Code (MAHC) is now available for public comment. CDC, through an initial grant from the National Swimming Pool Foundation, is working with public health and industry representatives across the United States to stem the rising number of recreational water illness outbreaks, pool associated chemical incidents, drownings, and injuries at public swimming pools and spas. The MAHC will serve as a tool for local and state agencies interested in implementing or updating existing laws governing the design, construction, operation, and maintenance of swimming pools, spas, hot tubs, and other treated or disinfected aquatic facilities. The MAHC is being developed as a set of modules on specific topics with multiple opportunities for review and comment by the public and other stakeholders. The current MAHC module is available for comment until February 5, 2012. Find more information about MAHC module status and content.
  3. Affordable Care Act Arguments Scheduled. The Supreme Court of the United States will hear oral arguments on the Patient Protection and Affordable Care Act (ACA) on March 26-28, 2012. Find more information and to read briefs and orders pertaining to the ACA.
  4. Analytical Brief: Eliminating the Individual Mandate. The Urban Institute, with support from the Robert Wood Johnson Foundation, published "Eliminating the Individual Mandate: Effects on Premiums, Coverage, and Uncompensated Care. Timely Analysis of Immediate Health Policy Issues," by Matthew Buettgens and Caitlin Carroll on January 12, 2011. The researchers found several negative effects associated with eliminating the individual mandate. Find more information on "Eliminating the Individual Mandate" and read the "Eliminating the Individual Mandate" brief.
  5. Meth and Suicide Prevention Initiative E-newsletter. The National Indian Health Board's Methamphetamine and Suicide Prevention Initiative (MSPI) is a national pilot demonstration project dedicated to addressing methamphetamine use and suicide, two of the most pressing public health concerns in American Indian and Alaska Native communities. MSPI's e-newsletter examines evidence-based practice, practice-based evidence, and best and promising practices related to methamphetamine use and suicide prevention. Find more information and subscribe to the e-newsletter.
  6. National Tax on Sugar Sweetened Beverages. The Robert Wood Johnson Foundation has released a new study which predicts health benefits of a national tax on sugar-sweetened beverages, "A Penny-Per-Ounce Tax on Sugar-Sweetened Beverages Would Cut Health and Cost Burdens of Diabetes, Obesity, and Heart Disease," by Y. Claire Wang, et al., published in Health Affairs on January 9, 2012. Find more information and to read the study.
  7. Report: "Ready or Not? 2011." The Trust for America's Health has published "Ready or Not? 2011: Protecting the Public from Diseases, Disasters, and Bioterrorism." The report, which was published December 2011 and was supported by the Robert Wood Johnson Foundation, identifies key programs which are at risk because of continued cuts to federal public health emergency preparedness funds. Find more information and read the report.
  8. Fellowship Opportunity: Association of Schools of Public Health. The Association of Schools of Public Health (ASPH) is offering recent graduates from ASPH-member Schools of Public Health an exciting opportunity to gain hands-on health policy experience with congressional and executive offices in Washington, DC. Applications are currently being accepted for the 2012 ASPH Public Health Policy Fellowship Program. The deadline to apply is February 22, 2012.Find more information about ASPH-member Schools of Public Health. Find more information about the ASPH fellowship.
  9. Fellowship Opportunity: The American Public Health Association. The American Public Health Association (APHA) is now accepting applications for the 2013 APHA Public Health Fellowship in Government. Candidates must have strong public health credentials and be interested in spending one year in Washington, DC working in a congressional office on legislative and policy issues related to health, the environment, or other public health concerns. The application, including a CV and three letters of recommendation, is due to APHA by April 9, 2012. The fellowship will begin in January 2013 and continue through December 2013. Find more information about the APHA fellowship.

Top Stories

  1. Delaware: Parents' past worry will save Delaware babies' lives
    Delaware Online (12/30/2011) Kelly April Tyrell

    Severe combined immunodeficiency (SCID) affects 1 in 40,000 to 1 in 100,000 babies annually and is considered the most serious primary immunodeficiency disease, defined by an immune system that is absent or significantly impaired or absent. Babies with SCID are only expected to live one year without treatment and can die if exposed to many common childhood illnesses, like chickenpox. Early detection is vital to treating SCID. In Fall 2011, Delaware launched a pilot program to diagnose children with SCID at birth.

    Delaware joins several other states in implementing the screening; Massachusetts and Wisconsin are among states that already require SCID screening. Often one of the greatest challenges for implementing the screening is locating the necessary laboratory space, equipment and qualified staff to perform the tests. Unlike other types of tests, SCID testing consists of unique molecular assays to look for a hallmark piece of DNA associated with T-cell dysfunction.

    Dr. Stephen McGeady, attending physician in the division of allergy and immunology at Alfred I DuPont Hospital for Children is supportive of the testing. "What we know is, if these children are found early in life, by about 3 months, before bad infections set in, they can be treated very successfully," he said. Dr. McGeady described the results of Duke University's well-established treatment program for children with SCID. "The survival rate in the Duke program is 92 percent for children diagnosed under 3 months of age. Where you lose the children, and where the Duke program even has less successful results, is when these children get older and have an uphill fight," he said.

  2. National: U.S. pledges $1.8 million in response to unethical Guatemalan medical studies
    Washington Post (01/10/2012) Brian Vastag

    From 1946 through 1948, U.S. and Guatemalan doctors infected prisoners and prostitutes, without the victims' knowledge or consent, with syphilis and gonorrhea to test penicillin as a treatment. In 2010, President Obama, Secretary of State Hillary Rodham Clinton and Health and Human Services (HHS) Secretary Kathleen Sebelius issued apologies to the Guatemalan victims. On Tuesday, January 10, 2012, the U.S. announced that it will spend $1 million to study new rules for protecting medical research volunteers and $775,000 will go to battle sexually transmitted diseases in Guatemala.

    In 2009, Susan M. Reverby, a Wellesley College professor, unearthed study documents relating to the experiments. Until that time, the study had remained hidden.

    "Although these events occurred more than six decades ago, we are outraged that such reprehensible research could have occurred under the guise of public health and we deeply regret that it happened," said an HHS spokesperson on Tuesday.

    Some feel the announcement fails to address victims' specific harm. "We're missing the piece of what will be provided as a direct remedy" to survivors, said director of the Johns Hopkins Berman Institute of Bioethics, Ruth Faden.

    The U.S. Department of Justice released a statement reaffirming its dedication on Monday, saying "[a]s a result of these unethical studies, a terrible wrong has occurred. The United States is committed to taking appropriate steps to address that wrong."

    The National Institutes of Health will lead the million-dollar project researching revisions to rules protecting medical research volunteers, while the CDC will use the remaining $775,000 to reinforce existing efforts which have been in place since 2009, fight sexually transmitted diseases in Guatemala by underwriting disease testing at community clinics, and training local health officials.

    (Editor's note: Find more information by reading the HHS press release, HHS commits nearly $1.8 million to health initiatives in Guatemala and to improving global human research protections, and White House Concludes Review of 1940s Experiments Found by Susan Reverby)

  3. France: France recommends removal of suspect breast implants
    New York Times (12/23/2011) David Jolly and Maïa de la Baume

    On Friday, December 23, 2011, French Health Minister Xavier Bertrand, and his deputy, Nora Berra, released a statement recommending that 30,000 French women with potentially defective breast implants have an "explant" to remove the implants, even in situations without evidence of implant deterioration. French officials further recommended an ultrasound examination every six months for women who elect not to remove the implants.

    The implants at issue were manufactured by Poly Implants Prothéses (PIP), a French company. Over 1,000 of the 30,000 French women who received PIP implants have experienced ruptures or other problems. According to prosecutors in Marseille, France, the company manufactured the implants with cheap industrial-grade silicone, which was unapproved for human use.

    Prior to being shut done by French officials in March 2010, PIP exported hundreds of thousands of the implants worldwide, primarily to countries in Western Europe and Latin America.

    The British Association of Aesthetic Plastic Surgeons has supported the French Health Ministry's announcement. "The industrial-grade silicone gel used in these implants was not meant for the human body. In some instances women who have no rupture of the devices will be happy to be monitored regularly, but others may wish for the PIPs to be removed regardless of symptoms. The French government's stance is certainly not unreasonable," said Nigel Mercer, a surgeon speaking on the association's behalf.

    The French Health Ministry has offered to pay for explant surgery removing the product and will pay for new implants in cases where the implants were inserted subsequent to reconstructive surgery for breast cancer.

Briefly Noted

  1. Alaska: Law banning "screen device operating" while driving may not include texting
    Alaska texting law challenged in court
    Anchorage Daily News (12/26/2011) Becky Bohrer
  2. California: More than 6,000 patients with preexisting conditions added to insurance rolls
    California adds patients to health insurance rolls
    Los Angeles Times (01/03/2012) Anna Gorman
  3. California: Tentative approval requiring condoms in adult films shot in Los Angeles
    L.A. council moves to require condoms in adult films
    Los Angeles Times (01/11/2012) Kate Linthicum
  4. California: State laws related to funeral homes: protecting public or burying small businesses?
    A mortician with a badge
    Los Angeles Times (12/23/2011) Thomas Curwen

  5. Georgia: Customers pricked by syringes hidden in Wal-Mart, police struggle to find evidence
    Evidence scarce in Wal-Mart needle mystery
    Atlanta Journal Constitution (12/19/2011) Christian Boone
  6. Kentucky: Judge says proposed redactions make records of fatal child abuse meaningless
    Judge to be abuse case censor
    Courier-Journal (12/21/2011) Deborah Yetter
  7. New Jersey: Courts may be empowered to sentence offenders to drug court
    Chris Christie wants drug courts as sentencing option, not just voluntary program
    Express-Times (01/02/2012) Sarah M. Wojcik
  8. National: Feds will evaluate ACA mandates in 2016
    A piecemeal approach to health law in states
    New York Times (12/20/2011) Gardiner Harris, Reed Abelson and Robert Pear
  9. National: FDA requires companion tests to identify patients before approving some drugs
    A push to tie new drugs to testing
    New York Times (12/26/2011) Andrew Pollack
  10. National: EPA's Mercury and Air Toxics Standards take effect in 2015
    EPA adopts new mercury rule
    River Reporter (1/11/2012) Fritz Mayer
  11. National: FDA issues cease and desist order to sperm donor who may have fathered 14 children
    Fertile sperm donor draws criticism from FDA, docs
    Atlanta Journal Constitution (12/20/2011)
  12. National: Bill improve cell service in border areas hopes to improve emergency response
    Mobile-phone amendment by Giffords, allies passes
    Arizona Republic (12/24/2011) Dan Nowicki
  13. National: New laws in effect January 1, 2012
    New laws ring in the New Year
    NCSL News (12/27/2012)
  14. National: Supreme Court of the United States schedules ACA arguments for March 26-28, 2012
    Supreme Court schedules three days of healthcare arguments
    Star-Telegram (12/19/2011) Jesse J. Holland
  15. National: 22 states file amicus briefs in support of FDA's graphic cigarette warning labels
    22 states endorse graphic cigarette warning labels
    Winston-Salem Journal (12/27/2011) Richard Craver
  16. Fiji: Five villagers charged with breaching month-long typhoid emergency regulation
    Typhoid arrests
    Fiji Times (12/29/2011) Maciu Malo

Court Opinions

  1. California: Health code requires businesses to pay into Toxic Substances Control Account
    Morning Star Company v. Board of Equalization
    Court of Appeals of California, Third District, Sacramento
    Case No. C063437a
    Filed December 7, 2011
    Opinion by Justice M. Kathleen Butz
    (Editor's note: to read California Health and Safety Code Section 25205.6, please click here)
  2. California: Anti-SLAPP motion denied; dentist used patient images and history in infomercial
    Bertsch v. Wellness Hour, Inc.
    Court of Appeals of California, Fourth District, Division One
    Case No. D057980
    Filed December 7, 2011
    Opinion by Justice Judith A. Haller
  3. Colorado: Uranium and vanadium mill permitted, not "hazardous waste" disposal
    Sheep Mountain Alliance v. Board of County Commissioners, Montrose County, Colorado, et all.
    Court of Appeals of Colorado, Division One
    Case No. 11CA0588
    Decided December 8, 2011
    Opinion by Judge Daniel M. Taubman, JJ Román and Booras concurring.
  4. New York: Lack of informed consent claim, an issue of fact, survives motion for summary judgment
    Giambrone v. Dr. Tony Farha, et al.
    Supreme Court, Kings County
    Case No. 24663/08
    Decided December 20, 2011
    Opinion by Judge David Schmidt
  5. Virginia: Denying parental rights to sperm donor, mother's ex-boyfriend, "manifestly unjust"
    Breit v. Mason
    Court of Appeals of Virginia
    Record No. 0337-11-1
    Decided December 28, 2011
    Opinion by Chief Judge Walter S. Felton, Jr.
  6. Federal: No attorney fees for prelim. injunction in "Right to Know" radio frequency case
    CITA-The Wireless Association v. City and County of San Francisco
    United States District Court, Northern District of California
    Case No. C 10-03224 WHA
    Decided January 3, 2012
    Opinion by Judge William Alsup
  7. Federal: Payments to Underground Storage Cleanup Fund fall under collateral source rule
    In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation
    United States District Court, S.D. New York
    Case Nos. 1:00-1898, MLD 1358 (SAS), M21-88
    Decided December 6, 2011
    Opinion by Judge Shira A. Scheindlin
  8. Federal: Decision of Social Security Commissioner vacated for failure to elicit proper testimony
    Jusino v. Commissioner of Social Security
    United States District, District of Puerto Rico
    Civil No. 10-2235 (CVR)
    Decided January 3, 2012
    Opinion by Magistrate Judge Camille L. Velez-Rive

About Public Health Law News

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.

The News is published by the Public Health Law Program, Office for State, Tribal, Local, and Territorial Support, Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services (DHHS). Lindsay Culp, J.D., M.P.H., Editor; Abigail Ferrell, J.D., M.P.A., Writer.


News content is selected solely on the basis of newsworthiness and potential interest to readers. CDC and the Department of Health and Human Services (DHHS) 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 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 or DHHS. 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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