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April 2012 - CDC Public Health Law News

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Gavel 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

Announcements

Webinar Providing Newborn Screening Specimens for Research: Legal Issues Faced by State Health Departments Webinar Series, hosted by the Network for Public Health Law. States that store and provide residual dried blood spots (DBS) for secondary uses, or are considering storage and secondary uses, may face an array of legal issues. This webinar series is intended to cover these legal issues – and related ethical and policy issues – concerning secondary uses of DBS and associated data. This webinar series is intended for public health attorneys, newborn screening program and laboratory staff, institutional review board staff, HIPAA privacy boards, privacy officers, researchers, and others who have interest in legal, ethical, and policy issues related to secondary uses of residual DBS. Register and access a list of upcoming webinars.


Weight of the Nation™ Conference. On May 7–9, 2012, the CDC Division of Nutrition, Physical Activity, and Obesity will host the Weight of the Nation™ Conference at the Omni Shoreham Hotel in Washington, D.C. The conference is designed to provide a forum to highlight progress in obesity prevention and control through policy and environmental strategies, framed around five intervention settings: early care and education; states, tribes and communities; medical care; schools; and workplaces. The conference will feature a number of public health law-related sessions, as well as a practitioner training on public health law and policy. Find more information about the Weight of the Nation™ Conference and registration.


Oral argument posted. The Supreme Court of the United States (SCOTUS) heard oral arguments regarding the Patient Protection and Affordable Care Act (PPACA) cases, Department of Health and Human Services v. Florida, on March 26 through 28, 2012. Find more information about case filings and hear oral arguments.


Notice of Amendment: Amendment to the March 1, 2010 Republished Declaration under the Public Readiness and Emergency Preparedness Act (PREP Act). The PREP Act authorizes the Secretary of the Department of Health and Human Services (Secretary) to issue a declaration providing immunity from tort liability for claims of loss arising out of, caused by, relating to, or resulting from administration or use of countermeasures to conditions determined by the Secretary to constitute a credible present or future risk of public health emergency. Find more information about the PREP Act and the PREP Act Amendment.


Public Health Law Conference. Save the date for the 2012 Public Health Law Conference: Practical Approaches to Critical Challenges. The conference is sponsored by the American Society of Law, Medicine & Ethics (ASLME) and the Network for Public Health Law and will take place October 10–12 in Atlanta, Georgia. Find more Public Health Law Conference information and register.

Legal Tools

Identifying Vulnerable Older Adults and Legal Options for Increasing Their Protection During All-Hazards Emergencies: A Cross-Sector Guide for States and Communities [PDF - 3.79MB]. The CDC Healthy Aging Program has published this Guide; the Guide's release coincides with the launch of a Web portal "designed to increase protection of older adults during all-hazards emergencies." The Guide covers a variety of topics, including developing plans, using data for action, partnering and collaboration, building registries, using law-based solutions, sheltering, and caregiver preparedness. For more information regarding the Guide and its creation, please read this month's Profile in Public Health Law interview with Rebecca Polinsky, who worked extensively with the CDC Healthy Aging Program and partners across the country to create the Guide.

Top Stories

New Mexico: Twofold dilemma of DWI: State wrangles with repeat offenders; some focus on first-timers
Santa Fe New Mexican   (04/07/2012)   Anne Constable

Recent deaths related to driving while intoxicated (DWI) have invited sharp criticism of New Mexico's laws governing DWI. In many cases, the DWI offender has been convicted of DWI on multiple occasions before ultimately causing a fatal crash. 

Michael Sandoval, director of New Mexico's Traffic Safety Division, describes the current fine and mandatory treatment programs. "You can fine them [those convicted of DWI], but they don't have any money. You can take away their car, but they usually find another. If you haven't made up your mind that you want to deal with the problem, I'm not sure any treatment program would work. I don't care how good it is. What really can you do, more than keeping them in jail longer?"

In early 2012, several New Mexico legislators and the state's governor supported a bill that would have increased penalties for those convicted of DWI four or more times. Under the legislation, the fourth conviction would lead to a 30-month prison sentence, up from 18, and the sentence for an eighth DWI conviction would increase to 12 years.

While such legislation is at least drawing attention to the problem, many feel the penalties should be invoked at the first offence. Cynthia Delgado of New Mexico Underage Drinking Prevention Alliance says DWI is a problem that begins before the fourth offence. "The perception is that the problem is repeat offenders with four or more offenses. That isn't where the problem is, despite the fact that the governor backed legislation to increase penalties among those people . . . legislation was focused on the public outrage and not the actual problem," said Delgado.

As the state looks to technology, such as ignition interlock, secure continuous remote alcohol monitoring, and Transdermal alcohol testing devices to hold offenders accountable, more agree that stricter penalties alone may not be enough to stop the problem.

"We have to get smarter than these offenders. . . This is a beautiful state and we can do better, people," said Linda Atkinson, co-founder and director of the DWI Resource Center in Albuquerque, New Mexico, a supporter of strict laws in conjunction with other intervention plans.


New York: Court upends 9-year fight on housing mentally ill
New York   (04/06/2012)   Mosi Secret

On Friday, April 6, 2012, the United States Court of Appeals for the Second Circuit struck down an order that New York State transfer thousands of mentally ill adults in New York City from institutional group homes into their own apartments and homes.  

The decision was made on procedural grounds, holding that the nonprofit group that brought the suit against the state, Disability Advocates, did not have standing to sue. The opinion essentially returns the litigation to its starting point without resolving or addressing the underlying issues of how the state is obligated to care for such patients.

The three judge panel said in its opinion, "[w]e are not unsympathetic to the concern that our disposition will delay the resolution of this controversy and impose substantial burdens and transition costs on the parties, their counsel, and the courts."

Cliff Zucker, executive director for Disability Advocates, indicated his organization will not try to seek a settlement with state officials. "We are hopeful that this administration has recognized that this is a problem that needs to be solved and we'll be able to solve it without recommencing litigation," he said.

Josh Vlasto, a spokesperson for Gov. Andrew Cuomo, said on behalf of the administration,
"[t]he governor's commitment to improving the quality of care for vulnerable populations and supporting opportunities for community living for people with disabling conditions is clear."

[Editor's note: Read the Second Circuit Opinion [PDF - 149KB].]


National: Steps set for livestock antibiotic ban
New York Times   (03/23/2012)   Gardiner Harris

On March 23, 2012 federal magistrate Judge Theodore H. Katz of the Southern District of New York ruled that U.S. government must warn drug makers of a pending ban on agricultural uses of some popular antibiotics.

In January 2012, the Food and Drug Administration (FDA) announced restrictions on agricultural uses of cephalosporins, a class of antibiotics commonly used to treat pneumonia, strep throat, and skin and urinary tract infections. This class of antibiotics is often used as a bulk additive to animal feed for pigs, cattle, and chickens to improve growth. Farmers and ranchers, however, maintain that the antibiotics are not used to promote animal growth, but are in fact used to prevent diseases.

Many scientists say use of the antibiotics in agricultural products encourages the spread of dangerous infection, immunity to the drugs and, subsequently, a potential public health crisis. Thus far, the FDA has not proposed restrictions on antibiotic uses to prevent diseases and Judge Katz's ruling does not extend to disease prevention uses.

An FDA spokeswoman, Siobhan DeLanecey, would not comment on whether the FDA plans to appeal Judge Katz's ruling, saying "[w]e are studying the opinion and considering appropriate next steps."

[Editor's note: Read Magistrate Judge Katz's Opinion.]


National: U.S. Loses Indonesia clove cigarette appeal at WTO
Yahoo! Health   (04/04/2012)   Tom Miles and Doug Palmer

On Wednesday, April 4, 2012, a World Trade Organization (WTO) appellate court ruled that the U.S. had unfairly discriminated against imports of Indonesian clove cigarettes by continuing to allow the sale of similar products such as menthol cigarettes. U.S. law prohibits sale and production of flavored cigarettes, including but not limited to cinnamon, strawberry, vanilla, and clove. Currently, menthol cigarettes are the only flavored cigarette product allowed in the U.S.

Indonesia, the global market leader in clove cigarette production and formerly a major supplier to the U.S., brought the WTO suit against the U.S. in 2010 arguing the ban was discriminatory to international trade and unnecessary.

In September 2011, a WTO panel agreed the ban was discriminatory but disagreed that it was unnecessary. In January 2012, the U.S. appealed the September 2011 ruling, which resulted in the current ruling.

The WTO ruling alone does not have the authority to modify or repeal U.S. law.

[Editor's note: Read the U.S. law banning flavored cigarettes, 21 U.S.C. § 321(rr), and find more information regarding the WTO ruling.]

Briefly Noted

Arizona: Law bans shackling of pregnant inmates during delivery, transportation
Brewer OKs limits on shackling pregnant inmates
Arizona Capitol Times   (03/21/2012)  


California: Group says law created to protect mental health patients ineffective
California's mental health commitment law is target of taskforce
Los Angeles Times   (04/08/2012)   Lee Romney


Florida: Caylee's law, third-degree felony to give false information re: missing child
Casey Anthony case: Florida governor signs ‘Caylee's Law'
Orlando Sentinel   (04/06/2012)   Michael Peltier


Idaho: Medical personnel to provide life-prolonging care when requested by patient
Gov. Otter signs end-of-life treatment bill
Idaho Statesman   (04/07/2012)  


Kansas: Decrease in alcohol-related traffic deaths may be tied to new law
Alcohol-related traffic deaths drop in Kansas, Transportation Department reports
Kansas City Star   (04/08/2012)  


Michigan: State proposal seeks federal ok for elderly in-home care programs
Michigan health officials seek to create long-term care system for elderly
Detroit News   (4/07/2012)   Chad Livengood


Pennsylvania: Wine shipping bill passed by Senate may dry up in House
Amendments slow Pennsylvania wine-shipping bill
PennLive.com   (04/09/2012)   Sue Gleiter


Pennsylvania: Authorities grapple with bath salts and other illegal drugs despite ban
Pennsylvania law, Drug Enforcement Administration ban put a squeeze on bath salts usage
PennLive.com   (04/08/2012)   Monica Von Dobeneck


Rhode Island: Pooch relegated to passenger seat under bill
RI bill would shoo dogs from driver's laps
Providence Journal   (04/09/2012)   Mike McKinney


National: FDA panel assesses tobacco industry's latest product, dissolvable tobacco
FDA panel: Dissolvable tobacco could reduce risks
Boston.com   (03/22/2012)   Michael Felberbaum


National: SCOTUS visits issue of benefits for children conceived after parent's death
Supreme Court wrestles with survivors benefits
Los Angeles Times   (03/19/2012)   David G. Savage

Feature Profile in Public Health Law

Rebecca Polinsky

Title: Research and Practice Fellow

Organization: CDC Public Health Law Program

Education: J.D. Georgia State University College of Law; B.A. Broadcast/Cable Communications, Pennsylvania State University


CDC Public Health Law News: What was your route to public health law?

Polinsky: Prior to working at CDC I was a staff attorney at the Health Law Partnership (HeLP), a medical-legal partnership for children at Hughes Spalding Hospital in downtown Atlanta, GA. My position was funded through a grant from the Georgia Department of Community Health in an effort to address health disparities in low-income and minority children through legal interventions. I represented children and their parents in civil legal matters relating to the health and well-being of the child, such as housing conditions cases, food instability, guardianships and custody, and maintenance of public benefits such as Supplemental Security Income, Temporary Assistance for Needy Families, and Medicaid. 

CDC Public Health Law News: What is your role as a Public Health Law Fellow at CDC?

Polinsky: I am the principal researcher and writer on a project addressing emergency preparedness and response issues for vulnerable older adults.

CDC Public Health Law News: How has your background as an attorney representing vulnerable populations been an asset at CDC?

Polinsky: I have first-hand experience working with vulnerable people which gives me insight into the many ways that vulnerabilities can affect people's health and well-being. For example, I understand the challenges that low-income or no-income families face in attempting to plan for life's expected events and, of course, the unexpected events like a natural disaster.  My attorney work with clients who are subject to any number of vulnerabilities (such as impaired cognitive ability, mental health issues, or physical disability) has given me a practice-based sensibility with regard to vulnerable populations work here at CDC.

CDC Public Health Law News: What projects are you currently most excited about?

Polinsky: The Public Health Law Program and Healthy Aging Program are jointly releasing a new preparedness guide, Identifying Vulnerable Older Adults and Legal Options for Increasing Their Protection During All-Hazards Emergencies: A Cross-Sector Guide for States and Communities (the Guide), and launching an accompanying web portal that will serve as a one-stop shop for resources, tools, and information related to all-hazard preparedness for vulnerable older adults. I am excited about this Guide and portal because both resources address a very real need for improved planning and coordination for the vulnerable older adult population. Sadly, Hurricane Katrina illustrated the vulnerabilities of older adults in their ability to prepare for and respond to an emergency, and demonstrated that greater planning is required across all sectors. This Guide seeks to provide options and strategies to improve planning for older adults at all jurisdictional levels.

CDC Public Health Law News: How did you become involved with identifying vulnerable older adults and legal systems for their support during emergencies?

Polinsky: The vulnerable older adult preparedness project was an extension of my interest and experience working with low-income, no-income, and minority families, and I know from this experience that identification is one of the biggest challenges in providing improved services for the very vulnerable. This project was a chance to academically research the issue of identification of vulnerable people, but also it was a chance to investigate the current practices in the field. 

CDC Public Health Law News: Why is identifying and creating emergency plans for vulnerable adults an important area of public health law?

Polinsky: This is an important area of public health law because some characteristics such as diminished cognitive or sensory awareness, limited mobility, or chronic conditions can put older adults at greater risk of illness and death because with these conditions they are not as well-equipped to respond to an emergency event. Also, an emergency can disrupt the support systems that older adults rely on, such as help from friends and family, in-home services that provide meals, or home-based health care, and without legal mandates requiring the identification and planning for this population, their supports systems can erode during a disaster, causing health to decline and potentially greater mortality.

CDC Public Health Law News: This Guide is the result of a workgroup convened by CDC, but involved several organizations internally and externally to CDC. How was the workgroup constructed and how did it operate?

Polinsky: The Healthy Aging Program and Public Health Law Program, both within CDC, jointly convened a workgroup that included stakeholders and partners with professional knowledge in the areas of public health, emergency preparedness, aging services, transportation, and law. This workgroup provided guidance on the development of the Guide and Web portal, providing feedback and suggestions on the organizational direction of the project as well as comments on the Guide itself.

Workgroup members represented the following organizations:

  • AARP
  • Administration on Aging
  • American Red Cross
  • Association of State and Territorial Health Officials
  • National Academy of Elder Law Attorneys
  • National Association of Chronic Disease Directors
  • National Association of County and City Health Officials

Workgroup members also represented the following sectors:

  • State and local aging services networks
  • Local law enforcement
  • State and local public health departments (including legal counsel)
  • State adult protective services
  • Urban and transportation planning

CDC Public Health Law News: What was your role within the workgroup?

Polinsky: I served as CDC program staff. I conducted the legal research and the public health literature review. I attended several site visits to local and state jurisdictions to meet with key players in the communities who currently work in the realm of emergency preparedness and response. I also worked with the workgroup to gather and implement their comments and feedback on numerous versions of the Guide.

CDC Public Health Law News: Were you surprised by some of the information and trends the workgroup found or the conversations you had while working on this project? If so, how?

Polinsky: I was amazed at the wealth of knowledge and experience our workgroup members had in planning for older adults and also in responding to real life events. There were stories from Katrina of older adults being separated from family and caregivers and evacuated to totally different geographic locations in other states. Older adults would arrive in these locations without their medication, exhausted and disoriented, and without any way for response workers and volunteers to know about their health and medical conditions.

CDC Public Health Law News: On a personal level, what experience or understanding will you be most likely to take with you to the next project?

Polinsky: I have learned so much about older adults and the ways in which we can assist them in planning for their protection not only in an emergency, but also in everyday life. I am also inspired by their amazing ability for resourcefulness in the face of hardship. It is true that older adults may need additional planning and protection, but they still have a lot to teach younger generations about surviving hardships and helping their communities.

CDC Public Health Law News: What community actions or changes would you hope to see in response to the Guide?

Polinsky: I hope to see more collaboration among all of the stakeholders and partners in preparedness and response, especially in terms of older adults. It is only when all partners are at the planning table that a truly coordinated, inclusive, and comprehensive plan and response can be achieved.

CDC Public Health Law News: If you were not working in public health law, what would you likely be doing?

Polinsky: Although I am a licensed attorney, I am a mediator at heart. I enjoy bringing people to the table and helping them to discover that they have the power to generate solutions that might serve the interests of all parties involved. 

CDC Public Health Law News: Describe any personal information, hobbies, or interests you care to share.

Polinsky: I currently serve on the Board of Directors of the Institute for the Study of Disadvantage and Disability, which is a non-profit organization with the mission of breaking the cycle of disadvantage and disability. I am passionate about the fact that communities can come together to improve the lives of all their citizens.

CDC Public Health Law News: What are your favorite books and what have you read lately?

Polinsky: I have recently finished The Seven Daughters of Eve by Bryan Sykes, which is about genetics and human evolution from the standpoint of mitochondrial DNA analysis. I have just started reading Pathfinder by Orson Scott Card, which is most probably labeled science fiction, though some may disagree.

CDC Public Health Law News: Is there anything else you'd like to add?

Polinsky: Working on this Guide has been a terrific experience, and I am so proud of the work done by everyone who contributed to its development and publication. The Guide deals with an incredibly important subject, and I hope it serves as a call to action for improved planning and preparedness for vulnerable older adults.

[Editor's Note: Find more information and download the Guide.]

Court Opinions

Alabama: Fire Marshal authority to adopt building regs. limited to fire safety
Ridnour v. Brownlow Homebuilders, Inc.
Court of Civil Appeals of Alabama
Case No. 2100851
Decided March 16, 2012
Opinion by Judge Terry A. Moore


Illinois: Negligence under Nursing Home Care Act affirmed
Graves v. Rosewood Care Center, Inc.
Appellate Court of Illinois, Fifth Circuit
Case No. 5-10-0033
Decided February 24, 2012; Motion to Publish granted April 2, 2012
Opinion by Justice Richard P. Goldenhersh


Federal: Death row MSJ for misbranded/unapproved lethal injection drugs
Beaty v. Food and Drug Administration
United States District Court, District of Columbia
Civil Case No. 11-289(RJL)
Decided on March 27, 2012
Opinion by District Judge Richard J. Leon


Federal: Additional styrene records used in carcinogen review to be made available
Styrene Information and Research Center, Inc. v. Sebelius
United States District Court, District of Columbia
Civil Action No. 11-1079(RBW)
Decided March 30, 2012
Opinion by District Judge Reggie B. Walton


Federal: City may not prohibit tobacco advertisements to prevent lawful purchase
National Association of Tobacco Outlets, Inc. v. City of Worcester, Massachusetts
United States District Court, Massachusetts Division
Case No. 11-40110-DPW
Decided March 31, 2012
Opinion by District Judge Douglas P. Woodlock


Federal: Town's actions regarding potentially dangerous homes legally justified
Roc F. Sansotta v. Town of Nags Head
United States District Court, Eastern District of North Carolina, Northern Division
Case No. 2:10-CV-29-D
Decided March 28, 2012
Opinion by District Judge James C. Denver, III


Federal: Psoriasis drug manufacturer's MSJ denied
Massa v. Genetech, Inc.
United States District court, Southern District of Texas, Houston Division
Civil Action No. H-11-70
Filed March 19, 2012
Opinion by District Judge Melinda Harmon


Federal: Tobacco health warnings held constitutional
Discount Tobacco City & Lottery v. U.S.
United States Court of Appeals, Sixth Circuit
Case Nos. 10-5234 and 10-5235
Filed March 19, 2012
Opinion by Judge Eric E. Clay

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 CDC Public Health Law Program in the Office for State, Tribal, Local and Territorial Support.

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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 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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