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May 2012 - CDC Public Health Law News


Thursday, May 17, 2012

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

Hello CDC Public Health Law News Community! As we head toward the end of the school year and we begin to think about summer plans, the News has been tracking some interesting school-related stories and resources. First, we note that Colorado is one step closer to passing a trans fat ban in Colorado schools. We will continue to monitor developments and post an update in June's edition. Also, note the links to "Model Policies for Smart School Siting" from our friends at Public Health Law & Policy and a Resource Procurement Guide from the CDC Division for Heart Disease and Stroke Prevention.Both of these documents stand as great examples of tools that can be put to good use in your communities. Thank you for reading the News and Happy May!

Matthew S. Penn, Director
Public Health Law Program

In this Edition


Legal Tools

Top Stories

Briefly Noted

This Month's Feature:

Profiles in Public Health Law: Interview with Sara Zimmerman, Senior Staff Attorney and Program Director of the National Policy & Legal Analysis Network to Prevent Childhood Obesity, a ChangeLab Solutions project

Court Opinions

  1. Kentucky: Whistleblower Act
  2. Massachusetts: Breastfeeding during medical boards
  3. Mississippi: Accidental needle stick
  4. Federal: Massage parlor's injunction denied
  5. Federal: Restaurant's building code violations
  6. Federal: "Bad men" provision of Fort Laramie Treaty


  1. Public Health Law & Policy is now ChangeLab Solutions. Beginning on May 17, 2012, the national nonprofit established in 1998, Public Health Law & Policy, will be called ChangeLab Solutions. Find more information about the new name.

  2. Legal Update, the Tobacco Control Legal Consortium Newsletter. The latest Legal Update is now available and features a new section, "FDA Tobacco Regulation," with information about the Consortium's launch of a new FDA tobacco project to organize and encourage the public health community to participate in the federal regulatory process. Find more information about the Tobacco Control Legal Consortium and read the Legal Update [PDF - 934KB].

  3. New Dual Juris Doctor and Master of Public Health Degree. Beginning in fall 2012 the University of Wisconsin-Madison will offer a dual JD and MPH degree. The program will be facilitated through a joint effort between the School of Medicine and Public Health and the Law School. Find more information about the degree announcement and dual degree.

  4. New Degree Specializing in Emergency Management. The Saint Louis University School of Public Health's Department of Health Management and Policy will expand educational opportunities for students and professionals with the Master of Public Health and Certificate program in Emergency Management and Crisis Leadership, one of the only degrees of its kind in the country. The curriculum will be expanded for spring and fall 2012. Find more information about the MPH Degree Program in Emergency Management and Crisis Leadership.

  5. Summer Program on Global Health Law and Governance. The O'Neill Institute for National and Global Health Law at Georgetown University is offering its inaugural summer program on Global Health Law and Governance from June 18-22, 2012 at Georgetown Law. The program is open to all (lawyers and non-lawyers) and will bring together practitioners, policymakers, advocates and leading academics in global health to learn the foundations of global health law and governance. Participants will explore a number of issues including international trade and health, the International Health Regulations, the Framework Convention on Tobacco Control, and others. Find more information and apply to the program.

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Legal Tools

  1. The National Policy & Legal Analysis Network to Prevent Childhood Obesity (NPLAN) has developed a package of school siting policies for school districts that want to ensure their school siting decisions support the educational success, physical health, and overall well-being of students and their community. Download the model policies and accompanying fact sheet Smart School Siting.

  2. The CDC Division for Heart Disease and Stroke Prevention has developed an online resource to help organizations implement food service guidelines and strategies to reduce sodium. The Procurement Resource Guide supports CDC's goal of population-wide sodium reduction. Although not exhaustive, this document provides an overview of many available resources related to food procurement. Find more information about the Procurement Resource Guide [PDF - 682KB] and information on sodium reduction.

  3. The Institute of Medicine of the National Academies (IOM) has released For the Public's Health: Investing in a Healthier Future, a report assessing the sources and adequacy of current governmental public health funding and identifying approaches for building a sustainable and sufficient public health presence for the future, while recognizing the importance of other factors in the health system. The report is the result of a committee, formed by the IOM, to consider three public health topics: data and measurement, law and policy, and funding. Find more information about IOM and the report.

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Top Stories

  1. Missouri: State senator from St. Joe blocks prescription drug database
    Kansas City Star (05/04/2012) David A. Lieb

    After an eight-hour filibuster against legislation supporting a government prescription drug tracking database, Missouri remains one of just two states without such authorization. The databases are intended to stop "doctor shopping," which is when one individual visits several doctors seeking prescriptions for pain medication to feed their addictions or sell the drugs illegally.

    Under the proposed Missouri legislation, the prescribing doctor's name, the patient's name, type, date, and quantity of prescriptions would be entered into the database by the pharmacist filling the prescription. The information would be available to doctors and pharmacists, state regulators, and law officers who obtained a subpoena.

    While the proposed bill would have still been subject to popular vote on the November ballot before becoming law, Sen. Rob Schaaf, one of the main participants in the filibuster said he felt "The bill causes every citizen to be forced against their will to give up their privacy- their personal information about the controlled substances they are prescribed by their doctor." Sen. Schaaf also expressed a belief that unlike those who elect not to wear seat belts and are injured, those who abuse prescription pain pills do not infringe upon the liberties of third parties when they are injured and the public is forced to pay for their medical care. "If they overdose and kill themselves, it just removes them from the gene pool." Schaaf said.

    Others are not so glib about the potential injuries and potential repercussions the state could face without a prescription drug database. "With all of our surrounding states having laws in place, you've got a lot of people from out of state coming to Missouri to get OxyContin and lots of dangerous pharmaceuticals that are harmful, if not deadly," said Senate Majority Leader, Tom Dempsey. According to Dempsey, the legislation will not be brought back for a final vote before the end of the session on May 18, 2012.

    New Hampshire, the only other state without a prescription tracking database could pass a measure creating a database this year.

    [Editor's note: Find a map of states with prescription drug monitoring programs [PDF - 57KB] provided by the National Alliance for Model State Drug Laws, and more information about prescription drug monitoring from CDC.]

  2. National: Debate over who should be allowed to administer anesthesia moves
    to courts

    New York Times (05/01/2012) Dan Frosch

    In 2001 Medicare and Medicaid regulations changed, allowing states to opt out of a requirement that nurse anesthetists be supervised. Nurse anesthetists specialize in administering anesthesia, but many feel they should be required to be supervised by an anesthesiologist. Others feel the shortage of anesthesiologists in rural areas demands that nurse anesthetists be permitted to administer anesthesia without such supervision.

    Scott K. Shaffer, president of the nurse anesthetists association in Colorado said, "with the removal of the requirement, it actually increases access to health care for citizens in rural Colorado." In 2010 Colorado became one of 17 states that have elected to opt out of required supervision, allowing nurses to deliver anesthesia without an anesthesiologist's management. "Now patients don't have to turn around and go to Colorado Springs or Denver when they can be taken care of in their home town," Shaffer said.

    While opting out of the requirement has allowed many rural Colorado hospitals to hire nurse anesthetists where they may not have been able to hire or afford an anesthesiologist, a hotly-contested legal battle has ensued. In 2010 medical societies and anesthesiologists filed suit in state court arguing that allowing nurse anesthetists to deliver anesthesia unsupervised violated state law. States cannot take advantage of the new Medicaid and Medicare rule for nurse anesthetists if it would conflict with existing state law. While the case was dismissed, holding that the legislature had intended to allow the practice, the medical groups appealed in May 2011.

    Dr. Randall Clark, a spokesman for the Colorado Society of Anesthesiologists said, "[t]here is a very different background between nurses and physicians in both education and training. Anesthesia is a very complex and technically demanding area of medicine that, at its core, needs to be either performed by a physician or supervised by one."

    As other states, like California, experience similar legal battles, patient safety and quality of care remains the priority among medical providers. "If there aren't enough physicians and a woman in labor comes in, you can't say, ‘We have to wait until next week to get an anesthesiologist," said Jana Du Bois, chief counsel for the California Hospital Association.

  3. National: Facebook is urging members to add organ donor status
    New York Times (05/01/2012) Matt Richtel and Kevin Sack

    On Tuesday, May 1, 2012, Facebook announced a plan to encourage members to include their organ donation status with their other profile information, such as birthdates and school affiliations. The decision to become an organ donor is usually made at the state motor vehicle department. When an individual signs up to be an organ donor at an official state registry, it is a legal declaration that allows the individuals organs to be donated without family consultation. When a deceased individual is not a member of a registry, an organ procurement specialist must persuade the family to grant consent to donate the organs.

    Annually, nearly 7,000 people die in the U.S. while waiting for an organ transplant. The Facebook plan will link to state online donor registries and hopefully help friends and family engage in conversation about their wishes after death.

    Charlene R. Zettle, chief executive director of Donate Life California, part of a national organ donation advocacy group, hopes the plan will help families through what is often a difficult process, but is unsure of the plan's legal implications. "I think that it would certainly provide direction and comfort to the family. Whether it would be legally defensible if a family wanted to challenge it, that's a whole new arena. We do not want people to feel that all they have to do is put their decision to donate on Facebook. We really need to encourage people to go to their state registry," said Zettel.

    Even with complications, however, many are hopeful the Facebook plan will drastically alter the chronic lack of transplant organs. "This is a historic day in transplant. The math will radically change, and we may well eliminate the problem," said Dr. Andrew M. Cameron, the surgical director of liver transplantation at Johns Hopkins Hospital.

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Briefly Noted

  1. Alabama: Pre-existing condition insurance enrollment increased sixfold in past year
    Enrollment surges in Alabama health plan for pre-existing illnesses (04/30/2012) Mary Orndorff
  2. California: Patient's files illegally shared with journalists and hospital workers
    Hospital violated patient confidentiality, state says
    Los Angeles Times (05/05/2012) Chad Terhune
  3. Colorado: Nation's toughest trans fats in schools ban passes Senate, heads to House
    School trans fats ban draws near in Colorado
    Daily Camera (04/30/2012) Kristen Wyatt
  4. Maine: Community based services to nursing home patients by state
    Court approves deal giving state's patients alternative to nursing homes
    Kennebec Journal (05/04/2012)
  5. South Carolina: Pet food plant linked to 14 people sickened with Salmonella
    Salmonella in dog food sickens 14 people
    Atlanta Journal Constitution (05/04/2012) Jeffrey Collins
  6. Texas: State not irreparably harmed waiting to enforce Planned Parenthood law
    Judge: Texas can't cut funds to Planned Parenthood
    Atlanta Journal Constitution (05/04/2012) Chris Tomlinson
    [Editor's note: Read the U.S. Court of Appeals for the Fifth Circuit's Order.]
  7. Vermont: After considerable debate, vaccination exemption remains
    Legislature votes to preserve vaccination exemption
    Burlington Free Press (05/04/2012) Terri Hallenbeck
  8. Washington: Governor makes $90,000 available for whooping cough epidemic
    State acts to stem spread of whooping cough
    The News Tribune (05/04/2012) Mike Baker
  9. National: National Institutes of Health to try to "teach old drugs new tricks"
    Collaboration seeks to find new uses for failed drugs
    Washington Post (05/03/2012) David Brown
  10. National: Chemical levels exceed Consumer Product Safety Commission Standards
    Study: Toxic chemicals found in gardening tools
    CNN (05/03/2012) Saundra Young
  11. National: Deadly listeria cantaloupe outbreak could have been prevented
    Third-deadliest U.S. food outbreak was preventable, experts say
    CNN (05/03/2012) Scott Bronstein and Drew Griffin

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Court Opinions

  1. Kentucky: Cities not employers under Kentucky's Whistleblower Act
    Wilson v. City of Central City, Ky. [PDF - 163KB]
    Supreme Court of Kentucky
    Case No. 2010-SC-000394-DG
    Decided April 26, 2012
    Opinion by Justice Will T. Scott
  2. Massachusetts: Breastfeeding Mom's rights not violated by medical board policy
    Currier v. National Board of Medical Examiners
    Supreme Judicial Court of Massachusetts
    Decided April 13, 2012
    Opinion by Chief Justice Roderick L. Ireland
  3. Mississippi: Plaintiff denied recovery for emotional distress after needle stick
    Lee v. K & G Services, Co. [PDF - 125KB]
    Court of Appeals of Mississippi
    Case No. 2010-CA-01103-COA
    Decided April 24, 2012
    Opinion by Judge James D. Maxwell, II
  4. Federal: Massage parlor owner denied preliminary injunction against city ordinance
    Cousino v. City of Tulsa
    United States District Court, Northern District of Oklahoma
    Case No. 12-CV-0223-CVE-TLW
    Decided on April 26, 2012
    Opinion by District Judge Claire V. Eagan
  5. Federal: Health code citations against restaurant had rational basis, not retaliatory
    Papas v. Leonard
    United States District Court, District of Oregon, Portland Division
    Case No. 3:10-CV-00550-BR
    Decided on April 25, 2012
    Opinion by District Judge Anna J. Brown
  6. Federal: "Bad men" provision of Fort Laramie Treaty may apply to drunk driver
    Richard v. U.S. [PDF -186KB]
    United States Court of Appeals, Federal Circuit
    Case no. 2011-5083
    Decided April 13, 2012
    Opinion by Judge Evan J. Wallach [Editor's note: Find more information on the Fort Laramie Treaty]

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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