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February 2013 - CDC Public Health Law News

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Statue of Lady Justice Public Health Law Program,
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In this Edition

Announcements

Lecture highlighting important role of boards of health. The 14th Annual Ned E. Baker Lecture, Leading the Way to Healthier Communities: How Leadership Can Strengthen Public Health, will take place on April 4 from 4:00 to 5:30 pm (ET) in Bowling Green, Ohio. Participants will explore the dynamic characteristics of leadership and learn how board of health members, public health professionals, elected officials, and community members can exhibit leadership that improves the health of communities. Find more information about the Ned E. Baker Lecture and be a part of the live, interactive webcast.


O'Neill Institute accepting Law Fellow applications. The O'Neill Institute for National and Global Health Law, which is housed at Georgetown University Law Center, is seeking exceptionally qualified candidates to serve as O'Neill Institute Law Fellows. Fellowship terms are one year, with possible extension to two years, and will begin autumn 2013. Fellows receive an annual salary of $65,000, with benefits. Candidates must have a J.D. Applications must include CV, cover letter, writing sample, professional references, official law school transcripts, and other graduate school transcripts (if applicable). The application deadline is Friday, February 22, 2014. Any questions about the position should be directed to oneilinstitute@law.georgetown.edu. Find more information about the fellowship [PDF - 68KB].


Food law fellowship opportunity at the UCLA School of Law. The newly-launched Resnick Center for Food Law and Policy at UCLA School of Law is now accepting applications for the inaugural Resnick Program for Food Law and Policy Teaching Fellowship. The fellowship is a full-time, year-round, one academic-year position beginning July 2013 with the possibility of renewal for a second year. The position involves teaching law, legal and policy research and writing, preparing to go on the law-teaching market, and assisting with organizing projects such as conferences and workshops. No degree will be offered as part of the fellowship program. Fellowship candidates must hold a J.D. degree from an ABA-accredited law school and be committed to a career of law teaching and scholarship in the field of food law and policy. The salary is $59,000 per year, plus a competitive benefits package, and limited research and travel support. To apply for the 2013–2014 Resnick Program for Food Law and Policy Teaching Fellowship, submit the following materials by March 18, 2013: cover letter summarizing the applicant's qualification for the fellowship; detailed research proposal, no more than ten pages in length; description of teaching interests (course abstract and plan for class or seminar preferred); a list of published works, if any; resume or CV; official law school transcript; and the names of and contact information for three references (at least two must be academic references. Applications should be sent to Edna Sasis, Office of the Dean, UCLA School of Law, Box 951476, Los Angeles, CA 90095-1476. Email applications may be sent to sasis@law.ucla.edu. Find more information about the fellowship.


Food law job opening at the UCLA School of Law. The UCLA School of Law is seeking a highly energetic, experienced individual to be the Executive Director of a newly-established Program for the study and practice of food law and policy located at the UCLA School of Law. The Program is designed to bring world class policy analysis, research, and educational opportunities in food law and policy to UCLA Law School, the campus, the broader community of Southern California, the nation and the world. Minimum requirements include an excellent academic record; a J.D., M.B.A., or equivalent advanced degree from a U.S. school; at least five years of successful food law and policy practice or experience; demonstrated management, administrative and organizational skills, with successful prior experience in fundraising or coordinating scholarly or professional conferences preferred; prior successful teaching experience and a record of publications concerning food law and policy topics preferred; a strong record of established relationships with other food law and policy professionals and with professional organizations preferred. Confidential review of applications, nominations, and expressions of interest will begin immediately and continue until an appointment is made. Send a resume, cover letter, and the names and addresses for at least two professional references to the attention of Edna Sasis, Office of the Dean, UCLA School of Law, 405 Hilgard Avenue, Los Angeles, CA 90095-1476. Email applications may be sent to sasis@law.ucla.edu. Find more information about the Executive Director position.


ASLME Health Law Professors Conference. The American Society of Law Medicine and Ethics (ASLME) is happy to announce the 36th Annual Health Law Professors Conference will be held June 6–8, 2013, in Newark, New Jersey. The conference will be co-sponsored by ASLME and Seton Hall University. Find more information about the conference.


NALBOH Annual Conference. The National Association of Local Boards of Health (NALBOH) is hosting NALBOH 21st Annual Conference, Responsible Governance for a Brighter Public Health Future, which will take place August 14–16 in Salt Lake City, Utah. The conference will provide board of health members and other public health professionals with information on public health governance functions, engaging citizens, and the role of effective leadership in healthy communities. Registration will open April 20, 2013. Find more information about NALBOH and the 21st Annual Conference.

Legal Tools

Annual Spring Training with National Public Health Performance Standards Program (NPHPSP). CDC and its partners host a once-yearly national training for current and prospective NPHPSP users. The 11th annual training, Public Health Improvement Training: Advancing Performance in Agencies, Systems, and Communities, is scheduled for April 23–24, 2013, in Atlanta, Georgia. The 2013 training will cover the following performance improvement topics and address how each topic supports an overall public health improvement strategy: accreditation by the Public Health Accreditation Board; quality improvement; state and community health assessment and improvement planning; and performance management. Find more information and register for the training.


National Intimate Partner and Sexual Violence Survey Release. On average, twenty-four people per minute are victims of rape, physical violence, or stalking by an intimate partner in the United States, based on a survey conducted in 2010. Over the course of a year, that equals more than twelve million women and men. Those numbers only tell part of the story—more than one million women are raped in a year and over six million women and men are victims of stalking in a year. These findings emphasize that sexual violence, stalking, and intimate partner violence are important and widespread public health problems in the United States. Find more information and access the full report.

Freedom of Information Act law database. The Reporter's Committee for the Freedom of the Press offers a free online database of freedom of information laws. The information may be sorted by state or judicial circuit. Find more information and access the online database.

Top Stories

National: Americans with Disabilities Act opens pools to disabled swimmers

CNN   (02/01/2013)   Mike M. Ahlers and Tory Dunnan

In 2010 the United States Department of Justice, under the egis of the Americans with Disabilities Act (ADA), published swimming pool accessibility standards for people with disabilities. January 31, 2013, was the deadline for pool operators to comply with the most recent mandates ADA.

The new rule applies to public swimming pools, such as those at hotels, motels, public country clubs, health clubs, recreations centers, and businesses. The rule also applies to private community pools if the pool is made available for public use or rental. Facility operators are required to provide access for people with disabilities if such access is "readily achievable." Facilities that failed to meet the new requirements could face up to $55,000 in civil penalties.

While the ADA was originally enacted in 1990, the need of providers and facilities to prepare to meet the new ADA standards required that many of the provisions take effect over an extended period of time.

Some feel pool access for people with disabilities is overdue. "They've had plenty of time to find a suitable way to accommodate disabled swimmers. It's time to make this happen so that people with disabilities don't have to go through another summer without being able to go swimming with their families," said Patrick Wojahn, a public policy analyst with the National Disability Rights Network.

Briefly Noted

California: Over-crowded maternity hotels draw complaints and violate health code
Complaints against maternity hotels surge
Los Angeles Times   (01/27/2013)   Cindy Chang


Hawaii: Law may require businesses to post information about human trafficking
Hawaii legislative preview: marijuana, human trafficking, sugary drinks, PLDC all agenda
The Republic   (02/10/2013)   Anita Hofschneider


Louisiana: Gun bill would require mentally ill to be reported to state database
Louisiana gun bill would require sharing of mental health information
Times-Picayune   (02/08/2013)   Lauren McGaughy


Michigan: 'Patient-to-patient' marijuana sales business not allowed
Michigan court: Medical-pot dispensaries not allowed
Detroit Free Press   (02/08/2013)   Bill Laitner


Missouri: Bill for service dogs goes passes Senate, headed to House
Bill backs service dogs for mentally disabled
News Tribune   (02/08/2013)
[Editor's note: Find more information and read Missouri's Senate Bill 33.]


Montana: Senate passes bill requiring more training to identify athletes' concussions
Montana Senate approves bill protecting prep athletes with concussions
Independent Record   (02/08/2013)
[Editor's note: Find more information and read Montana's Senate Bill 112 [PDF - 20KB].]

New Jersey: Assisted death bill passes New Jersey Assembly
Physician-assisted suicide measure passes NJ assembly
CBS   (02/07/2013)
[Editor's note: Find more information and read New Jersey's Assembly Bill 3328.]


Tennessee: Meningitis outbreak could lead to stronger emergency data-sharing law
Meningitis outbreak: health crisis superseded privacy laws
Tennessean   (02/09/2013)   Kristin M. Hall


Virginia: Senate votes to give local gov't authority to ban smoking in parks
Va. Senate votes to limit smoking, cell phone use
Washington Post   (02/04/2013)   Laura Vozzella


National: Newly approved drug can shut off specific genes related to cholesterol
F.D.A. approves genetic drug to treat rare disease
New York Times   (01/29/2013) Andrew Pollack


National: Smokers could pay penalties under Patient Protection and Affordable Care Act
Health law to smokers: time to pay
Bend Bulletin   (02/09/2013)   Randy Tucker

Feature Profile in Public Health Law

Todd Talbert

Title: Associate Director for Program Planning and Development

Organization:  Division of State and Local Readiness (DSLR), Office of Public Health Preparedness and Response (OPHPR), Centers for Disease Control and Prevention (CDC)

Education: Paramedic, Stanford University Hospital, B.S. in Emergency Medical Services, M.A. Organizational Management

Sharon Sharpe

Title: Associate Director, Grants Management and Compliance

Organization: OPHPR, CDC

Education: B.S. in Management, M.B.A.


In 2012, the CDC DSLR, OPHPR partnered with the Association of State and Territorial Health Officials (ASTHO), the Hospital Preparedness Program (HPP), and Public Health Emergency Preparedness Cooperative Agreement (PHEP) to identify opportunities to develop actionable administrative preparedness recommendations for state health through Funding Opportunity Announcements (FOA). More specifically, DSLR has worked to encourage HPP and PHEP grant recipients to implement administrative preparedness strategies by using law as a tool to support public health. As part of the grant requirements, grant recipients were required to create personalized administrative preparedness plans for their organizations.

CDC Public Health Law News (PHLN): Why is having an administrative plan important?

Talbert and Sharpe: The aligned HPP/PHEP cooperative agreement provides technical assistance and resources that support state, tribal, local, and territorial public health departments and healthcare systems/organizations in demonstrating measurable and sustainable progress toward achieving public health and healthcare preparedness capabilities that promote prepared and resilient communities. The program is designed around fifteen public health preparedness capability standards and eight healthcare system preparedness capability standards. Significant planning is required to achieve the intent of these capabilities.

Dwight D. Eisenhower famously said, "Plans are nothing; planning is everything." And with this in mind, advance planning to respond to emergencies is a tried and true practice at local, state and federal government levels. Interestingly, we have learned over time that we needed to take a harder look at the administrative planning components that enable the execution of tactical public health and healthcare system emergency response activities. In many respects the day-to-day public health and healthcare system survives off just in time funding, and traditional systems for allocating funds, procuring supplies, and implementing contracts are not inherently designed to meet emergency response needs.

While CDC recognizes that states, localities, and territories will have different governance structures for dealing with disasters and other public health emergencies, it is critical that awardees are able to receive and use federal emergency funds in a timely manner and consistent with the funding opportunity announcement requirements. As awardees apply resources to achieve the fifteen public health preparedness capabilities and eight healthcare system preparedness capabilities, CDC also recognizes the challenges awardees face during a public health response. In times of constrained resources, it is vital that state, tribal, local, and territorial agencies maximize the performance of their programs to meet the challenges associated with public health response. While an administrative preparedness plan can assist the awardees in identifying the areas of their strengths, it may also point out gaps or challenges in their infrastructure that may be exacerbated during an emergency. By taking the time to develop a plan in advance, they can identify those gaps and come up with a guide that includes emergency administrative processes that may differ from the awardees' standard processes. Legal spending authorities, financial, personnel (workforce surge) and procurement/contract management policies and procedures play an essential role in a jurisdiction's ability to respond in a timely manner to emergency situations.

PHLN:When you were interviewed for the Public Health Law News in September 2012, you were awaiting the grantees' administrative preparedness plans and since September, DSLR has worked diligently to review and evaluate the plans. How were the grantees' administrative preparedness plans evaluated?

Talbert and Sharpe: Project evaluators within DSLR's Applied Science and Evaluation Branch (ASEB) assessed information submitted by PHEP and HPP awardees on their plans to address administrative preparedness during the first budget period of the HPP-PHEP award. They identified four broad identified four broad categories of administrative preparedness, each containing specific requirements

  • Funds management and alignment of HPP-PHEP administrative processes  (HPP-PHEP Alignment)
  • Expedited fiscal and other administrative processes for emergency response activities (Expedited Processes)
  • Legal authorities for expedited process for receiving and allocating emergency funds (Legal Authorities for Expedition)
  • Pharmaceutical laws and laws protecting volunteers against tort liability and workers compensation (Pharmaceutical and Liability Laws)

In addition, they developed a coding scheme to score each requirement based on the extent to which the awardee submission addressed the requirement and the degree to which the requirement was in place. Although this evaluation process has been extremely helpful, it is no substitute for reading through the details of each plan because simply categorizing data does not effectively capture the nuances contained within each plan.

PHLN:What were the evaluation results?

Talbert and Sharpe:   Of the thirty-one requirements identified, the average number of requirements fully in place by awardees was sixteen. Geographically, parts of the Great Lakes Region with individual awardees in the West and Northeast regions exhibited fully in place requirements far greater than the average, having twenty-three to twenty-eight requirements fully in place. Yet overall, no awardee had all thirty-one requirements fully in place.

Snapshot of preliminary self-reported administrative preparedness data (n=55) revealed that

  • 65% of awardees reported having expedited procedures for spending emergency funds
  • 78% of awardees reported having streamlined and contracting procedures
  • 63% of awardees reported having expedited procedures for allocating emergency funds
  • 45% of awardees reported having the ability to quickly move emergency funds from state to local governments
  • 30% of awardees reported having emergency procedures for allocating funds to sub-awardees

Going forward, we anticipate placing emphasis on sub-awardee monitoring in upcoming continuation guidance; sub-awardees are essentially the local health jurisdictions, healthcare coalitions, tribal entities, and others that receive preparedness funds from HPP-PHEP cooperative agreement awardees.  Although sub-awardees are not directly funded through our program, it is important to note that a substantial amount of HPP-PHEP funds do make their way down to the local-level.

PHLN: Did some administrative preparedness plans stand out?

Talbert and Sharpe: Yes. Not to mention any particular jurisdiction, but there were some that were quite lengthy and covered all possible contingencies. Others covered the same ground, but in less detail. One jurisdiction included some process mapping which should prove helpful to them in the future in identifying lag time in their processes and may provide a way-forward idea for other jurisdictions. 

PHLN: What are the characteristics of a strong administrative preparedness plan?  

Talbert and Sharpe: When eliminating technical planning jargon, some of the most important characteristics of a strong plan boil down to the inclusion of appropriate subject matter experts, overall completeness/understanding (e.g., inclusion of viable assumptions and objectives) and functional operability.

PHLN: Why was it important for the grantees to write their own administrative preparedness plans?

Talbert and Sharpe: Plans must be developed in accordance with their environment. There are several reasons why we (CDC) could not proscribe a plan for our awardees. From a practical standpoint, many of the administrative and legal authorities necessary to function in an emergency depend largely on the jurisdiction's organizational structure (centralized or decentralized), and what authorities reside where. Also, the jurisdiction's governmental structure may determine responsibilities. Although the CDC and Office of the Assistant Secretary for Preparedness and Response (ASPR)  have informed laws to help HPP-PHEP awardees execute operational plans (Prep-Act), the capability to implement administrative preparedness plans ultimately resides at state, tribal, local, and territorial levels.

We believe that one of the most important aspects of planning is going through an effective planning process. In the same way that the jurisdictions work through Threat and Hazard Identification and Risk Assessments (THIRAs) to identify vulnerabilities and their relation to risk, it's also important for awardees to participate in a planning process to identify and assess risks and associated impacts of administrative activities that may delay procurement or hiring activities, or legal authorities that may be necessary to respond appropriately to an incident. By walking through all the processes and procedures necessary to activate administrative activities and legal authorities in an emergency in advance, they can address impacts of missing planning elements.

PHLN: How will the plans be implemented and what follow-up actions will be taken by DSLR, OPHPR and the grantees, individually and collaboratively?

Talbert and Sharpe: The development of plans and subsequent exercising of plans is a significant component of the HPP-PHEP cooperative agreement. Once our final in-depth evaluation of current administrative preparedness planning is completed, we intend to examine the feasibility of working with partner organizations and awardees to exercise administrative preparedness plans. We believe working together to develop a joint exercise will help participants further identify potential corrective actions and opportunities for improvement. 

It's important to understand that the PHEP portion of the current cooperative agreement contains a separate funding authority that can be used to award future contingent emergency response funding that may be issued in the event of a pandemic or all-hazards public health emergency in one or more jurisdictions. Such funding is subject to restrictions imposed by the CDC at the time of the emergency when a delay in award would result in serious injury or other adverse impact to the public. It is important to note that funding provided under this authority is contingent upon Congressional Appropriations and facts and circumstances that exist at the time of the emergency. In many ways, the existence of this innovative mechanism to distribute public health emergency response funding to state, local and territorial PHEP awardees, is the centerpiece of administrative preparedness implementation during emergency situations.

A secondary factor leading to our emerging focus with sub-awardee monitoring is rooted in achieving day-to-day administrative efficiency and compliance. For example, if a given state has challenges distributing HPP-PHEP funds to sub-awardees under non-emergency conditions, it is conceivable that practices to rapidly distribute funds are underdeveloped. DSLR is expending substantial effort to help awardees better improve their ability to routinely spend and allocate HPP-PHEP funds, and we believe this assistance ultimately contributes to improved emergency administrative preparedness capability. 

PHLN:While administering and guiding the HPP and PHEP grants OPHPR has worked closely with the National Association of County and City Health Officials (NACCHO) and ASTHO. How has this alliance taken shape and to what end?

Talbert and Sharpe: This remains a continuing topic, and we would like to acknowledge that our public health partner organizations have really helped to drive advancements in this area.  ASTHO and NACCHO are especially of great assistance with helping us identify the "ground-truth" of their members. Through surveys, key informant interviews, and forums, our partners, ASTHO and NACCHO, help us identify perspectives and gaps that help CDC target administrative preparedness priorities.  

Additionally, our colleagues at ASPR have been key stakeholders and have helped to identify opportunities for improvement at the Federal interagency level. As previously referenced, we intend to continue leveraging our partnerships to develop future exercises, to include a table-top or discussion-based exercise in the future. 

PHLN: Does CDC have resources or tools that jurisdictions can use to evaluate their own administrative preparedness?

Talbert and Sharpe: Many tools exist or are in development, many in the area of legal preparedness, some of which will be included in future continuation guidance. Other tools provided in the guidance have been developed to assist awardees in sub-awardee monitoring and audit compliance. Listed below are some examples:

Although these tools are available, the most important activity is to foster and effective state, tribal, local, and territorial planning process, which is the overarching theme of this discussion.

PHLN: How can local governments and jurisdictions find resources to create their own administrative preparedness plans and what advice or encouragement would you give them?

Talbert and Sharpe: Admittedly, the subject of administrative preparedness doesn't captivate planners the same way developing a pandemic influenza plan does. Nonetheless, we want to communicate that we recognize that pouring over legal authorities to identify technical gaps is important, achievable and necessary. We seek to encourage that when programs conduct an internal review of their administrative preparedness capability, they do not simply adopt existing processes without understanding their meaning. As a part of this effort, we are strongly encouraging HPP-PHEP awardees to incorporate their legal, procurement and fiscal officers into the planning process, similar to the way that these programs regularly include epidemiologists when developing emergency disease surveillance systems. In essence, fiscal, procurement and legal experts should be included into state, local and territorial administrative preparedness planning, because, as we alluded to earlier, the strongest part of the plan is the planning process. 

PHLN: Are there any projects and events that you're looking forward to?

Talbert and Sharpe: We're looking forward to the upcoming Public Health Preparedness Summit 2013 in Atlanta (March 12–15), where presentations about administrative preparedness will occur. Of note, separate breakout sessions will occur about working with law enforcement, volunteer liability, emergency use authorizations and findings from a CDC/NACCHO report that examined local public health understanding of administrative preparedness. As previously mentioned, we are having initial discussions about developing an administrative preparedness exercise agenda.

PHLN: Have you read any good books lately?

Sharpe: For this project, "State and Local Procurement: A Practical Guide" by the National Association of State Procurement Officials (NASPO, 2008), which was quite a page-turner. However, for entertainment, I turned to "Take Your Eye off the Ball: How to Watch Football by Knowing Where to Look" by Pat Kirwan.

Talbert: "The Wettest County in the World." A recent movie called "Lawless" was inspired from this book, and it tells the story about a family of bootleggers (the Bondurants) in Franklin County, Virginia during prohibition. The book was written by the great-grandson of one of the primary characters that was a legendary bootlegger.

Court Opinions

Illinois: Village water contamination excluded from insurance coverage
The Village of Crestwood v. Ironshore Specialty Insurance Co., Westport Insurance Corp., and United Nat’l Insurance Co. [PDF - 102KB]
Appellate Court of Illinois, First District, Fifth Division
Case Nos. 1-12-0112 & 1-12-0227, consolidated
Filed 02/22/2013
Opinion by Judge Margaret Stanton McBride


Maine: Case remanded for application of law limiting wind farm sound levels
Friends of Maine’s Mountains v. Board of Environmental Protection [PDF - 165KB]
Supreme Judicial Court of Maine
Case No. BEP-12-137
Decided 03/05/2013
Opinion by Justice Warren M. Silver


Pennsylvania: Counselor’s discharge did not violate Pa. Code or ACA Ethics
Mikhail v. Pennsylvania Organization for Woman in Early Recovery D/B/A POWER [PDF - 13KB]
Superior Court of Pennsylvania
Case No. 387 WDA 2011
Filed 02/27/2013
Opinion by Senior Judge Eugene B. Strassburger, III


Federal: Festival’s permit revocation may have denied procedural due process
Ihnken v. Gardner [PDF - 73KB]
United States District Court, District of Maryland
Case No. CCB-11-3508
Filed 02/27/2013
Opinion by Judge Catherine C. Blake


Federal: County cannot recover airplane crash clean-up expenses
County of Erie, New York v. Colgan Air, Inc. [PDF - 35KB]
United States Court of Appeals, Second Circuit
Case No. 12-1600-cv
Decided March 4, 2013
Opinion by Judge Richard C. Wesley

Quotation of the Month

Dr. Tim Jones, an epidemiologist with the Tennessee Department of Health.

"Once we were deep into the outbreak, that was a lifesaver in terms of dealing with the complexity of the information that we were trying to handle," Dr. Tim Jones, an epidemiologist with the Tennessee Department of Health, said of the electronic sharing of health information between hospitals and the Tennessee Department of Health during the meningitis outbreak.

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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