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September 2012 - CDC Public Health Law News

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In this Edition

Announcements

Next Steps in Health Reform Conference
October 16, 2012
9 am–3 pm
American University's Washington College of Law, 4801 Massachusetts Avenue, NW, Room 603
The conference will feature a lunchtime keynote on the broader implications of health reform and three in-depth panel discussions on the challenges and opportunities that implementation of health reform presents to states, health plans, and providers. The event is open to the public and will be particularly relevant to anyone practicing or interested in health law and policy. Registration is free but required.
Find more information
Register for the conference
Registration Deadline: October 10


Call for Nominations: Foundations of Health Law 
The American Society of Law, Medicine & Ethics (ASLME) and the Association of American Law Schools Section on Law, Medicine & Health Care seek nominations of foundational works of scholarship in health law, very broadly defined, to publish an edited volume in an academic press. The nomination must have been published in English before December 31, 2010 and must be accompanied by a brief (fewer than 300 words) description of the importance of the scholarly work.
Send to: Ted Hutchinson, Executive Director, American Society of Law, Medicine & Ethics, 765 Commonwealth Avenue, Boston, MA  02445 (or email thutchinson@aslme.org)
Find more information
Submission Deadline: December 31, 2012


Detailed agenda 2012 Public Health Law Conference: Practical Approaches to Critical Challenges  
The Network for Public Health Law is hosting the conference October 10–12, 2012 at the Loews Hotel in Atlanta, Georgia. The conference will include several concurrent sessions focusing on different public health law topics, such as prevention and promotion at the community level, changes and challenges to public health legal infrastructure, challenges to public health authority, and others.
Read the agenda [PDF - 363KB]
Register for the conference


Good Decision Making in Real Time: Practical Public Health Ethics for Public Health Professionals
October 10, 2012
8:00 am–12:00 pm
Loews Hotel, Atlanta Georgia
The free workshop will give public health professionals tools and practical examples to address common ethical challenges in public health practice. The workshop will introduce the basics of public health ethics and then engage participants in a discussion of case studies. The session will also explore the overlap between ethics and law. It is a precursor to the 2012 Public Health Law Conference
Facilitated by Drue Barrett, PhD, Lead, Public Health Ethics Unit, Office of Scientific Integrity, Office of the Associate Director for Science, Office of the Director, CDC
To register contact bnunn@networkforphl.org (space is limited)
Find more information [PDF - 263KB]


Newborn Screening Webinar 
Thursday, September 27, 2012
1:00–2:00 pm
The Network for Public Health Law, in partnership with several organizations, is hosting a free six-part webinar series on legal issues surrounding newborn screening. During a newborn screening, a few drops of blood are taken from a newborn's heel to test for harmful or potentially fatal disorders. State laws govern what disorders are tested for and how the data is stored, shared, and protected. The next webinar will take place on
Registration not required
Find more information and access the webinar

Legal Tools

The Public Health Law Program’s The Public Health Law Program's Public Health Emergency Preparedness Clearinghouse is a central repository for emergency preparedness-related legal reports, tools, and training. The Clearinghouse aids jurisdictions when considering updates and clarifications to their public health emergency legal preparedness activities.

The Association of State and Territorial Health Officials (ASTHO) and CDC's Public Health Law Program developed toolkits to help public health officials understand and use legal authorities to prepare for and respond to public health emergencies. The toolkits address needs state and local public health agencies identified regarding specific legal questions and uncertainties that were perceived barriers to effective planning and response to infectious disease outbreaks, natural disasters, intentional acts, and other emergency events. The toolkits are resources for education, training, and preparation for emergencies. They can be quick reference guides when responding to an emergency. Find more information and access the toolkits.


The National Association of County and City Health Officials (NACCHO) and CDC's Public Health Law Program have published "Public Health and the Law: An Emergency Preparedness Training Kit." The training kit is designed to prepare public health practitioners, their legal counsel, and other partners to understand and effectively address changes in the legal environment that result from an emergency. The kit includes a locally-customizable PowerPoint curriculum and exercise scenario, instructor's manual, training component summaries, and training videos. Find more information and purchase the training kit.

CDC offers a wide variety of emergency preparedness resources, covering concerns from West Nile Virus to bioterrorism to natural disasters. In honor of National Preparedness Month, find more information about the emergency preparedness and response resources.

Top Stories

Massachusetts: Easton Board of Health approves regulation for mosquito-borne illness containment

Easton Patch (09/05/2012)   Patrick Maguire

Easton, Massachusetts experienced a large number of mosquito pools infected with of eastern equine encephalitis virus (EEEV), despite a vigorous pesticide campaign. EEEV causes eastern equine encephalitis (EEE) in humans when an infected mosquito bites a person. According to CDC, EEEV is a rare illness in humans. Most humans who are infected show no symptoms. Severe cases of EEE can cause an infected individual's brain to swell. These severe cases begin with the sudden onset of chills, high fever, headaches, and vomiting. EEE then progresses into disorientation, seizures, or coma.

Due to the high number of infected ponds, the Easton Massachusetts Board of Health has passed a regulation empowering the Board of Health to limit outdoor activities during times of elevated risk for mosquito-borne illness. The proposed regulation, which was discussed at a public town hall meeting on September 4, 2012 and passed on September 5, 2012, allows the board to instate a curfew for public and private property. The regulation includes potential fines of up to $1,000 for those who violate the ban, after a first offense.

The regulation was hotly contested and many residents expressed concerns that it is an overreach of the Board's authority.  "I resent that you're taking away my right as an informed citizen to make decisions for myself or my family," said Meredith Keach, an Easton resident.

Easton's Public Health Commissioner, John Auerbach, feels the regulation allowing such bans is needed because of the gravity of the issue. "Easton is actually the town in the state that has the highest risk of any community," said Auerbach.

Jay Talerman, legal counsel for the town, said that passing the regulation was done in deference to the citizens, but may not have been necessary. "Other towns just used Mass General Laws, went forward and enacted a ban—that's it, they did it. Knowing the town and the educated people here, [we thought] they ought to be able to come here to speak their piece," Talerman said of the town hall meeting held before the regulation was passed.

The Board does not have any immediate plans to enact a ban.  


National: More young adults have insurance after health care law, study says

New York Times   (09/10/2012)   Sabrina Tavernise

In 2011, the portion of young adults without health insurance fell by one-sixth from the previous year, according to recent data released by CDC. This number represents the largest annual decline since 1997, when CDC began tracking how many young adults have health insurance.

The report, "The Census Bureau's Upcoming Report on Health Insurance Coverage in 2011: What to Watch for [PDF - 234KB]," (the Report) was written by Matthew Broaddus, a research analyst at the Center on Budget and Policies Priorities, which published the Report. The Report was based on data from CDC's National Health Interview Survey, which queried about 35,000 households. While the survey didn't ask how the newly insured obtained coverage, Broaddus said the increased coverage is probably caused by the provision in the Patient Protection and Affordable Care Act (PPACA) that allows children to remain on parents' insurance until their 26th birthday, which took effect in September 2010.

Experts from a variety of backgrounds and fields agree that the PPACA's dependent provision is the only plausible explanation for the insurance coverage increase. Joseph Antos, a health care policy expert at the American Enterprise Institute, noted that young adults have faced some of the worst conditions created by the economic recession and should be less likely to be insured. Other than the increase in coverage, however "[n]othing else went well for this age group," Antos said.

Before the dependents' provision, most young adults were forced off of their parents' insurance plan after high school or college graduation, usually at age 18 or 21. The Report was published in anticipation of the Census Bureau's Current Population Survey, which will clarify changes in health insurance coverage. The Census Bureau's report will be based on the Current Population Survey and is considered more inclusive because it represents data from such a large sample, about 100,000 households.


Briefly Noted

California: Suit claims CA Department of Public Health 8 years late in limiting chemical
California drinking water: Department of Public Health sued over ‘Erin Brockovich Chemical'
Huffington Post   (09/06/2012)   Gosia Wozniacka


Illinois: New law requires students to be vaccinated for pertussis
Law requires new vaccine for Illinois students
Rockford Register Star   (08/13/2012)  


Louisiana: Statewide public health emergency in effect until Oct. 3
Public health emergency in Louisiana, yes, but also more cleanup
Los Angeles Times   (09/04/2012)   Michael Muskal
[Editor's note: In additional to Louisiana's public health emergency declaration, Alabama [PDF - 119KB], Florida [PDF - 234KB], and Mississippi [PDF - 566KB] also declared public health emergencies in response to Hurricane Isaac, which struck the Gulf of Mexico in late August, 2012. A Presidential State of Emergency was also declared for both Louisiana and Mississippi.]


New York: Sugary beverages larger than 16 ounces banned in NYC
New York health board approves ban on large sodas
CNN   (09/13/2012)   George Lerner
[Editor's note: Find more information about the New York City's regulation limiting sugary beverages.]


New York: Students no longer burned by school sunscreen rules
State Ed Department agrees to change sunscreen rule in schools
WGRZ   (08/18/2012)  


Oregon: Largest US holdout approves adding fluoride to water by March 2014
Portland approves adding fluoride to water
Huffington Post   (09/12/2012)   Steven Dubois


National: Court rules breast cancer genes may be patented
Ruling could alter gene pool of US patent law
New Legal Review   (09/05/2012)  


National: Drug Enforcement Agency concerned about new drug, ‘molly'
There's something (potentially dangerous) about molly
CNN   (08/16/2012)   Marina Csomor


National: Yosemite National Park and World Health Organization issue warnings
Wider warning after 3rd Yosemite hantavirus death New York Times   (09/08/2012)   Marc Santora

Feature Profile in Public Health Law

Todd Talbert

Title: Associate Director for Program Planning and Development OrganizationDivision of State and Local Readiness, Office of Public Health Preparedness and Response (OPHPR), Centers for Disease Control and Prevention Education: Paramedic, Stanford University Hospital; BS in Emergency Medical Services, MA Organizational Management

Sharon Sharpe

Title: Associate Director, Grants Management and Compliance

Organization: Division of State and Local Readiness, Office of Public Health Preparedness and Response, Centers for Disease Control and Prevention

Education:  BS in Management; MBA


CDC Public Health Law News (PHLN): What was your route to OPHPR, in terms of education and career path? 

Talbert: I began my career in 1988 as an Emergency Medical Technician for a small ambulance company in coastal California. I eventually became a paramedic supervisor, and later, a quality assurance/clinical coordinator for a large for a large national ambulance service. In August of 2001, I accepted a position within the Santa Barbara County Emergency Medical Services (EMS) Agency to help develop numerous projects, including emergency medical dispatch, trauma system, and other EMS performance improvement assignments. After September 11, 2001, I was appointed to locally implement the Hospital Preparedness Program (HPP) and Public Health Emergency Preparedness (PHEP) cooperative agreement. I came to CDC in 2005 to work as a Program Services Consultant within the DSNS and was offered a position with the Division of State and Local Readiness in August, 2008.

Sharpe: My 28+ year CDC career has been focused primarily on budget, personnel, contract and grants management, and other administrative aspects of programmatic issues. Began CDC career in the Financial Management Office, then held administrative positions in the National Center for Infectious Diseases (NCID), before spending 18 years in Division of Cancer Prevention and Control, National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Office of Noncommunicable Diseases, Injury and Environmental Health (ONDIEH) as a Program Consultant for various cancer cooperative agreement programs as well as Assistant Branch Chief, Comprehensive Cancer Branch. 

PHLN: Please describe your division's mission, goals and subject matters or issues typically falling within your organization's purview.

Sharpe/Talbert: The Division of State and Local Readiness (DSLR) administers CDC's Public Health Emergency Preparedness (PHEP) cooperative agreement, which supports preparedness activities nationwide and provides technical assistance to 62 state, local, and territorial PHEP awardees. The PHEP cooperative agreement is a critical source of funding for state and local public health departments to build and strengthen their abilities to respond effectively to the public health consequences of not only terrorist threats, but also infectious disease outbreaks, natural disasters, and biological, chemical, nuclear, and radiological emergencies.

Mission: Provide leadership, management oversight, financial and technical resources, and scientific consultation to public and private partners, ensuring that state, local, territorial, and tribal health departments achieve all-hazards preparedness.

Vision: To be a proactive, credible, and trusted public health partner within the national response system, committed to strengthening all-hazards preparedness among our collaborators, awardees, and the public.

PHLN: Please describe your respective duties and responsibilities.

Talbert: I am an advisor to senior management, and my responsibilities are varied. As well as being the lead emergency coordinator for DSLR, other key responsibilities include overseeing the coordination of division public health partner agreements, overseeing a pilot project designed to promote the accelerated development of risk reduction strategies that mitigate the public health risks associated with higher population areas, coordinating specific budget formulation activities and managing input into various congressional documents. I am also one of our division's primary contacts with other CDC Centers when collaboration with intramural projects is needed.

Sharpe: Serve as advisor to senior management, project officers and awardees regarding HHS, CDC and other federal laws and policies related to administration of program grants and cooperative agreements. Also serve as the Grants Administration Co-lead in partnership with the Office of the Assistant Secretary for Preparedness and Response Chief Grants Management Official (ASPR CGMO) for the HPP-PHEP cooperative agreement as well as the DSLR liaison with the CDC Procurement and Grants Office.

PHLN: Do you see yourself as working in the area of public health law?

Talbert: Public health law impacts my work every day. Most recently, Sharon and I have been working together with the Public Health Law program to help us better understand topics like public health volunteer liability, emergency use authorizations (EUA's), the Public Readiness and Emergency Preparedness Act (PREP Act), and legal guidelines for developing memorandums of understanding between public health agencies and the FBI for joint investigations. Although there's a bit more to it, we refer to this project as "administrative preparedness," which I'm sure we'll get to later.

Sharpe: Yes. This position requires research and interpretation of appropriations law, statutes, legal authorities, and fiscal and procurement regulations such as Office of Management and Budget Circulars, etc. 

PHLN: In the past year, through the Hospital Preparedness Program (HPP) and PHEP Funding Opportunity Announcements (FOA), the Division of State and Local Readiness has worked to encourage grant recipients to implement administrative preparedness strategies by using law as a tool to support public health. What is administrative preparedness?

Sharpe/Talbert: ASPR and CDC aligned the HPP and PHEP cooperative agreements earlier this year to increase program impact and advance preparedness and response at the state, local, tribal, and territorial levels. For the current HPP-PHEP funding opportunity announcement administrative preparedness  was defined as  "the process of ensuring that fiscal and administrative authorities and practices that govern funding, procurement, contracting, hiring, and legal capabilities necessary to mitigate, respond to, and recover from public health emergencies can be accelerated, modified, streamlined, and accountably managed at all levels of government."

PHLN: Why is legal preparedness such an important aspect of overall preparedness?

Sharpe/Talbert: Waivers or similar legal processes can be used to minimize the potential conflicts between emergency use authorizations (EUA) and state-based pharmaceutical, prescribing, labeling, and other drug-related laws.

Formal memoranda of understanding or agreement (MOU/MOA) executed between the appropriate Federal Bureau of Investigation field office and state public health departments, and including local public health departments where relevant (such as in home rule states) are critical for joint investigations of intentional public health threats or incidents

Another important aspect is the protection of volunteers against tort liability and workers' compensation claims (excluding federal mechanisms, e.g., the PREP Act).

It is also critical that as awardees apply resources to achieve the public health and healthcare preparedness capabilities, they also plan how they will address the additional fiscal and administrative challenges they may face during a public health emergency.

PHLN: Why are administrative preparedness and law particularly vital to PHEP and HPP, specifically?

Sharpe/Talbert: Administrative preparedness challenges may result from state, tribal, or territorial laws and regulations that inhibit spending of federal funds in emergency circumstances, and/or within budget/project periods of grants (which results in high visibility of unobligated funds or expiration of unexpended funds).

Additionally, it is our opinion that concepts surrounding administrative preparedness serve as "enablers" for public health emergency preparedness capability achievement. For example, a state or local health jurisdiction may not be effectively able to rapidly distribute medical countermeasures if they don't understand the conditions of an EUA. Similarly, they may not be able to hire temporary surge personnel in an emergency if they don't have systems in place to rapidly accept emergency contingency funds or efficient emergency recruitment processes.

PHLN: How were the PHEP and HPP grantees chosen and from what areas?  

Sharpe/Talbert: The Pandemic and All Hazards Preparedness Act (PAHPA) proscribes the jurisdictions that receive the HPP and PHEP funding. Currently, there are 62 PHEP cooperative agreement awardees, including all 50 states, four major metropolitan areas (Chicago, Los Angeles County, New York City, and Washington, D.C.) and eight US territories and freely-associated states (American Samoa, Guam, US Virgin Islands, Northern Mariana Islands, Puerto Rico, Federated States of Micronesia, Republic of the Marshall Islands, and Republic of Palau).

PHLN: Both the HPP-PHEP cooperative agreements are co-sponsored by the Office of the Assistant Secretary for Preparedness and Response (ASPR); how have your department and CDC more broadly worked with ASPR to support and direct the PHEP and HPP grants?

Sharpe/Talbert: In late 2011, the ASPR and CDC established a collaborative workgroup to align administrative preparedness projects. So far, this collaboration has worked to gather administrative preparedness perspectives from local public health jurisdictions in partnership with NACCHO and to identify opportunities to develop actionable administrative preparedness recommendations for state health departments in partnership with ASTHO.

DSLR program project officers also have regular interaction with HPP project officers, and it is not uncommon that both programs collaborate to conduct awardee site visits. DSLR leadership also regularly coordinates with ASPR leadership in Washington DC to ensure alignment of policy positions and tactical execution of programmatic components.

PHLN: What inspired the Division of State and Local Readiness to tie the HPP and PHEP cooperative agreements to administrative preparedness?

Sharpe/Talbert: Actually, we have to give credit to Admiral Steve Redd, Toby Crafton, and others from the CDC Influenza Coordination Unit for initially driving this initiative. Following the H1N1 influenza pandemic response, it was believed important to begin addressing lessons learned regarding the administrative preparedness necessary at the state and local levels for effective response. The initiative initially began as "budget preparedness," as during the H1N1 response we found that sometimes states were challenged to rapidly spend funding that had become available through H1N1 grants because they had to rely upon customary administrative procedures and regulations to accept and spend federal dollars. These typical processes are very effective for ensuring that laws are followed for using federal funds, but they're inherently not designed for receiving emergency response funds that may become available in the form of a CDC grant or cooperative agreement. Budget preparedness was broadened to include additional "administrative preparedness" components in the PHEP cooperative agreement in 2011. That cooperative agreement focused on identifying state and local administrative response barriers, while also providing an improved mechanism for the CDC to award future response funding should emergency congressional appropriations ever become available in the future.

PHLN: What work has been done with the grantees and when will you receive grantee's plans for their funding?

Sharpe/Talbert: In addition to ongoing training and guidance, technical assistance has been provided to the awardees in developing an Administrative Preparedness plans. Going forward in the current project period of the HPP-PHEP cooperative agreement, we are asking that their response plans include emergency authorities and expedited administrative processes that would likely differ from the awardees' standard operating procedures.

PHLN: Do you have any particular expectations for the grantee's responses?  

Sharpe/Talbert: Thus far, reaction to this new "requirement" has been very encouraging. Awardees realize the challenges that they face in these areas and are actively addressing the issues in their plan development. The formal programmatic HPP-PHEP Technical Assistance Plans are being developed between the awardees and their respective project officers. Early signs indicate a great deal of interest in the planning for these areas.

PHLN: If you were not working in public health law, specifically in the area of state and local readiness, what would you likely be doing?

Sharpe: Pursuing a similar career path in public health administration, or perhaps teaching.

Talbert: I'd like to think that I would be running an EMS system. When I first became a paramedic I thought I'd become a nurse . . . go figure.

PHLN: Do you know any good lawyer jokes?

Talbert: My uncle is a retired judge, and my cousin is an attorney. I could tell you jokes about them, but we try to keep it in the family.

Sharpe: I know a good lawyer, does that count?

PHLN: Is there anything else you'd like to add?

Sharpe: I think that many of the basic concepts behind "Administrative Preparedness" as it relates to emergency preparedness and response could be easily adapted to other public health programs at CDC. Effective and efficient processes for receiving, allocating, and spending award funds while reducing the potential for unobligated and/or unliquidated dollars are essential components to any public health program.

Talbert: Being a responder by nature, I find this topic particularly interesting. It's really been a great learning experience; it's a response angle I never considered would be so important.

[Editor’s note: This interview is part one of a two part series about the Hospital Preparedness Program and Public Health Emergency Preparedness Cooperative Agreement Funding Opportunity Announcements. Please look for a follow-up story regarding the data and reports derived from these agreements in the October 2012 edition of the CDC Public Health Law News.]

Court Opinions

Connecticut: Failure to exhaust procedural remedies in suit to bury husband in yard
Piquet v. Town of Chester et al [PDF - 119KB]
Case No. SC 18723
Supreme Court of Connecticut
Filed Aug. 28, 2012
Opinion by Justice Peter T. Zarella


Missouri: Village's complaint superseded by federal law in railway flooding case
Village of Big Lake, Missouri v. BNSF Railway Co.
Case No. WD74613
Missouri Court of Appeals, Western District
Filed Aug. 28, 2012
Opinion by Judge Roger M. Prokes


New York: Duty to warn of third party components in asbestos case
In the Matter of New York City Asbestos Litigation Ronald Dummitt v. A.W. Chesterton et al.
Case No. 1090196/10
Supreme Court, New York County
Decided Aug. 20, 2012
Opinion by Judge Joan A. Madden


New York: Family Healthcare Decisions Act not a substitute for guardian appointment
In the Matter of Restaino v. AG, an Alleged Incapacitated Person
Case No. 30500-I-12
Supreme Court, Nassau County
Decided Aug. 29, 2012
Opinion by Judge Arthur M. Diamond


New York: Chiropractors to perform ‘manipulation under anesthesia' under state law
Willets Point Chiropractic P.C. as Assignee of Marina Flores v. Allstate Insurance; Richard Grosso, D.C. PC as Assignee of Marina Flores v. Allstate Insurance
Civil Court of the City of New York, Richmond County
Case No. 017113/11
Decided Aug. 16, 2012
Opinion by Judge Philip S. Straniere


Federal: Towing case remanded for provision-by-provision safety review of law
California Tow Truck Ass'n v. City and County of San Francisco [PDF - 156KB]
Case Nos. 11-15040, 11-15041
United States Court of Appeals for the Ninth Circuit
Filed Aug. 27, 2012 Opinion by Judge John Michael Seabright

Quotation of the Month

Judge Philip S. Straniere of the Civil Court of the City of New York, Richmond County. Willets Point Chiropractic P.C. as Assignee of Marina Flores v. Allstate Insurance; Richard Grosso, D.C. PC as Assignee of Marina Flores v. Allstate Insurance

"Your toe bone connected to your foot bone,
Your foot bone connected to your ankle bone,
Your ankle bone connected to your leg bone,
Your leg bone connected to your knee bone,
Your knee bone connected to your thigh bone,
Your thigh bone connected to your hip bone,
Your hip bone connected to your back bone,
Your back bone connected to your shoulder bone,
Your shoulder bone connected to your neck bone,
Your neck bone connected to your head bone,
I hear the word of the Lord!"  

Judge Philip S. Straniere quoting "One of the versions of ‘Dem Bones' also known as ‘Dry Bones' or ‘Dem Dry Bones' an often recorded folk song attributed to James Weldon Johnson." Willets Point Chiropractic P.C. v. Allstate , 2012 NY Slip Op 51614(U).

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