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January 2012 - CDC Public Health Law News

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Director's Note

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

Matthew S. Penn, Director
Public Health Law Program

In this Edition


Legal Tool: Social Distancing Law Project. With the support of Oregon's Public Health Preparedness Program, Shannon O'Fallon, Senior Assistant Attorney General for the Oregon Department of Justice, collaborated with Josephine County, Oregon on a model memorandum of understanding (MOU). The MOU established the roles and responsibilities of public health officials and law enforcement in enforcing public health laws. The Law Enforcement-Public Health MOU was part of the Social Distancing Law Project, which was sponsored by the CDC and directed by the Association of State and Territorial Health Officials. The Social Distancing Law Project provides jurisdictions with tools to assess, improve, and coordinate social distancing. Find more information about the Oregon MOU, The Social Distancing Law Project, read the Oregon MOU, or similar MOU template.

Model Aquatic Health Code. The Regulatory Program Administration module of the Model Aquatic Health Code (MAHC) is now available for public comment. CDC, through an initial grant from the National Swimming Pool Foundation, is working with public health and industry representatives across the United States to stem the rising number of recreational water illness outbreaks, pool associated chemical incidents, drownings, and injuries at public swimming pools and spas. The MAHC will serve as a tool for local and state agencies interested in implementing or updating existing laws governing the design, construction, operation, and maintenance of swimming pools, spas, hot tubs, and other treated or disinfected aquatic facilities. The MAHC is being developed as a set of modules on specific topics with multiple opportunities for review and comment by the public and other stakeholders. The current MAHC module is available for comment until February 5, 2012.  Find more information about MAHC module status and content.

Affordable Care Act Arguments Scheduled. The Supreme Court of the United States will hear oral arguments on the Patient Protection and Affordable Care Act (ACA) on March 26-28, 2012. Find more information and to read briefs and orders pertaining to the ACA.

Analytical Brief: Eliminating the Individual Mandate. The Urban Institute, with support from the Robert Wood Johnson Foundation, published "Eliminating the Individual Mandate: Effects on Premiums, Coverage, and Uncompensated Care. Timely Analysis of Immediate Health Policy Issues," by Matthew Buettgens and Caitlin Carroll on January 12, 2011. The researchers found several negative effects associated with eliminating the individual mandate. Find more information on "Eliminating the Individual Mandate" and read the "Eliminating the Individual Mandate" brief.

Meth and Suicide Prevention Initiative E-newsletter. The National Indian Health Board's Methamphetamine and Suicide Prevention Initiative (MSPI) is a national pilot demonstration project dedicated to addressing methamphetamine use and suicide, two of the most pressing public health concerns in American Indian and Alaska Native communities. MSPI's e-newsletter examines evidence-based practice, practice-based evidence, and best and promising practices related to methamphetamine use and suicide prevention. Find more information and subscribe to the e-newsletter.

National Tax on Sugar Sweetened Beverages. The Robert Wood Johnson Foundation has released a new study which predicts health benefits of a national tax on sugar-sweetened beverages, "A Penny-Per-Ounce Tax on Sugar-Sweetened Beverages Would Cut Health and Cost Burdens of Diabetes, Obesity, and Heart Disease," by Y. Claire Wang, et al., published in Health Affairs on January 9, 2012. Find more information and to read the study.

Report: "Ready or Not? 2011." The Trust for America's Health has published "Ready or Not? 2011: Protecting the Public from Diseases, Disasters, and Bioterrorism." The report, which was published December 2011 and was supported by the Robert Wood Johnson Foundation, identifies key programs which are at risk because of continued cuts to federal public health emergency preparedness funds. Find more information and read the report.

Fellowship Opportunity: Association of Schools of Public Health. The Association of Schools of Public Health (ASPH) is offering recent graduates from ASPH-member Schools of Public Health an exciting opportunity to gain hands-on health policy experience with congressional and executive offices in Washington, DC. Applications are currently being accepted for the 2012 ASPH Public Health Policy Fellowship Program. The deadline to apply is February 22, 2012.  Find more information about ASPH-member Schools of Public Health. Find more information about the ASPH fellowship.

Fellowship Opportunity: The American Public Health Association. The American Public Health Association (APHA) is now accepting applications for the 2013 APHA Public Health Fellowship in Government. Candidates must have strong public health credentials and be interested in spending one year in Washington, DC working in a congressional office on legislative and policy issues related to health, the environment, or other public health concerns. The application, including a CV and three letters of recommendation, is due to APHA by April 9, 2012. The fellowship will begin in January 2013 and continue through December 2013. Find more information about the APHA fellowship.

Top Stories

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Briefly Noted

Alaska: Law banning "screen device operating" while driving may not include texting
Alaska texting law challenged in court
Anchorage Daily News (12/26/2011) Becky Bohrer

California: More than 6,000 patients with preexisting conditions added to insurance rolls
California adds patients to health insurance rolls
Los Angeles Times (01/03/2012) Anna Gorman

California: Tentative approval requiring condoms in adult films shot in Los Angeles
L.A. council moves to require condoms in adult films
Los Angeles Times (01/11/2012) Kate Linthicum

California: State laws related to funeral homes: protecting public or burying small businesses?
A mortician with a badge
Los Angeles Times (12/23/2011) Thomas Curwen

Georgia: Customers pricked by syringes hidden in Wal-Mart, police struggle to find evidence
Evidence scarce in Wal-Mart needle mystery
Atlanta Journal Constitution (12/19/2011) Christian Boone

Kentucky: Judge says proposed redactions make records of fatal child abuse meaningless
Judge to be abuse case censor
Courier-Journal (12/21/2011) Deborah Yetter

New Jersey: Courts may be empowered to sentence offenders to drug court
Chris Christie wants drug courts as sentencing option, not just voluntary program
Express-Times (01/02/2012) Sarah M. Wojcik

National: Feds will evaluate ACA mandates in 2016 
A piecemeal approach to health law in states
New York Times (12/20/2011) Gardiner Harris, Reed Abelson and Robert Pear

National: FDA requires companion tests to identify patients before approving some drugs
A push to tie new drugs to testing
New York Times (12/26/2011) Andrew Pollack

National: EPA's Mercury and Air Toxics Standards take effect in 2015
EPA adopts new mercury rule
River Reporter (1/11/2012) Fritz Mayer

National: FDA issues cease and desist order to sperm donor who may have fathered 14 children
Fertile sperm donor draws criticism from FDA, docs
Atlanta Journal Constitution (12/20/2011)

National: Bill improve cell service in border areas hopes to improve emergency response
Mobile-phone amendment by Giffords, allies passes
Arizona Republic (12/24/2011) Dan Nowicki

National: New laws in effect January 1, 2012
New laws ring in the New Year
NCSL News (12/27/2012)

National: Supreme Court of the United States schedules ACA arguments for March 26-28, 2012
Supreme Court schedules three days of healthcare arguments
Star-Telegram (12/19/2011) Jesse J. Holland

National: 22 states file amicus briefs in support of FDA's graphic cigarette warning labels
22 states endorse graphic cigarette warning labels
Winston-Salem Journal (12/27/2011) Richard Craver

Fiji: Five villagers charged with breaching month-long typhoid emergency regulation
Typhoid arrests
Fiji Times (12/29/2011) Maciu Malo

Feature Profile in Public Health Law

Amy Winterfeld

Title: Program Director, Health Program

Organization: National Conference of State Legislatures (NCSL)

Education: J.D., University of Colorado School of Law; B.A. with honors in History, Brown University

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

Winterfeld: Although I've known since my college years that I wanted to pursue a public service career, I took an indirect route to public health law. In law school, I studied all the standard subjects and a wide variety of others, and worked in the Criminal Defense Legal Aid Clinic. I volunteered for the local public defender in college and worked for the state public defender's office while in law school. Immediately following graduation I worked for the courts, in private practice and in private business before working for a decade for a national nonprofit organization that focused on improving child protection systems and preventing child abuse and neglect.  That prevention focus became my route into public health law when I joined the National Conference of State Legislatures in 2003 to work on chronic disease prevention and other topics in public health policy.

CDC Public Health Law News: Will you please describe NCSL and its work?

Winterfeld: The National Conference of State Legislatures is a bipartisan organization that serves the legislators and staffs of the nation's 50 states, its commonwealths and territories. NCSL provides research, technical assistance and opportunities for policymakers to exchange ideas on the most pressing state issues. NCSL also advocates for the interests of state governments before Congress and federal agencies out of our Washington, DC office. Here at our main office in Denver, NCSL's core mission is to improve the quality and effectiveness of state legislatures and to promote policy innovation and communication among state legislatures.

CDC Public Health Law News: How have your prior experiences prepared you for your work with NCSL?

Winterfeld: A common thread in my prior experiences is working to give voice to the disenfranchised and the little guys including maltreated children, criminal defendants and small business owners. I see representative government as also ideally providing a channel for all to have a voice in our society. My prior work experience also has included or been in the context of working with large systems such as the courts, state child protective services agencies and even a large corporation.

I have also lived, studied and worked in different areas of the country. Because NCSL's membership is comprised of 7382 state legislators and thousands of legislative staff in all the states and U.S. territories, in both political parties, I think my varied work background, the many diverse people that I've lived and worked with in a variety of settings, and experience in working with state agencies and systems prepared me well for working with the diverse public servants who make up NCSL.

CDC Public Health Law News: Please describe a typical workday.

Winterfeld: My work days are pretty varied. Typically they revolve around keeping informed about legislative policy developments, performing legal research, working with partner organizations such as CDC and with other national organizations that serve state and local policymakers and health officials to facilitate communication and health information for policymakers, working as a reporter and legal and factual researcher while writing for NCSL publications and web pages, planning and facilitating meetings or webinars that offer opportunities for policy makers to communicate with each other and learn about innovative state legislative policy developments and the views of those in the private sector, and a variety of administrative and management tasks in NCSL's health program.  Our health policy work is primarily grant-funded so I have duties related to raising funds and grant administration as well.

CDC Public Health Law News: What is the role of state legislatures in public health law?

Winterfeld: State legislators approve state budgets so they allocate funds for state public health agencies and their operating infrastructure.  They also can enact public policies that produce real health benefits for large numbers of people such as:

  • smoke-free policies that lead to an immediate drop in heart attacks,
  • laws that facilitate access to healthier foods and community venues for people to be physically active to reduce their risk of type 2 diabetes, heart disease and certain cancers,
  • policies that encourage immunizations to prevent epidemics and protect individuals from infectious diseases, and
  • many other public health policies that allow us to have safe, healthy places to live, work and play. 

Legislators can also remove policy barriers, an often overlooked role in improving public health.

CDC Public Health Law News: What are some of the current public health law legislative trends?

Winterfeld: Current public health law legislative trends that support wellness, will, I think, continue because they benefit both health and the economy. They include policies such as economic development incentives for food retail infrastructure (such as full service grocery stores, and refrigerated storage) that typically sell nutritious foods such as fruit, vegetables and low-fat dairy products and also provide jobs in communities.  Farm-to-school and farm-to-table policies that bring fresh, local foods to communities and school children, while providing new markets for local farmers; also continue to receive bipartisan support.  Policymakers increasingly recognize that children who eat healthy and are physically active during the school day have higher academic achievement. They continue to adopt low cost policies, such as school recess, that support these activities. These policies are public health policies because they build healthier communities for children and families and allow them to make choices that establish healthy habits and prevent chronic disease.

CDC Public Health Law News: Are there any new or unique types of public health legislation you expect to see introduced in 2012?

Winterfeld: The national conversation sparked by health reform about how to move the U.S. health system from a focus on "sick care" to a system that supports keeping people healthy across the lifespan is one that began in the states. Even though there is disagreement about aspects of the law, many legislators are now focused on the ramifications and implementation of the Affordable Care Act. Part of the health reform effort is moving us in the direction of more collaboration between clinical care and public health systems designed to prevent disease and bolster healthy lifestyles. I think we will see more legislation supporting prevention in the states in the coming year, especially when it is perceived as cost effective. 

CDC Public Health Law News: How can those who are interested in state public health law become more involved and literate on how state legislatures work?

Winterfeld: NCSL has a great website with information about state legislatures and their work and most of the site is open to the public.  We also have an online bookstore with many publications about how state legislatures work in general and on policy topics that are the focus of much of the work of state legislatures such as education, transportation, children and families issues, and, of course, health. All NCSL meetings are open to anyone who would like to register to attend and NCSL periodicals are available for subscription.  Throughout the year, NCSL presents webinars on policy topics, including public health subjects, free of charge or at a nominal cost. And there's no better way to learn about how state legislatures work than by visiting one's own state legislature and getting to know your own legislator and those who serve on legislative health or public health committees.

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

Winterfeld: I would likely be using my legal education and skills in another public service capacity or working as a teacher or health care provider.

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

Winterfeld: Together with my husband, I'm the proud parent of two wonderful teenage sons. Yes, their immunizations are all up to date.

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

Winterfeld: I recently read The Absolutely True Diary of a Part Time Indian by Sherman Alexie.  Although it's a work of fiction, it describes with great compassion, humor and hope the challenges, including public health issues, facing American Indian young people today.  I also just finished reading The Language of Flowers by Vanessa Diffenbaugh, a novel about the bumpy path of a young woman who is aging out of the foster care system into living on her own.

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

Winterfeld: Thank you for the opportunity to speak with you and your readers and help raise awareness of the role of state policymakers in public health law and public health systems. Hearing your readers' voices is very important to help policymakers make informed decisions.

Court Opinions

California: Health code requires businesses to pay into Toxic Substances Control Account 
Morning Star Company v. Board of Equalization
Court of Appeals of California, Third District, Sacramento
Case No. C063437a
Filed December 7, 2011
Opinion by Justice M. Kathleen Butz
(Editor's note: to read California Health and Safety Code Section 25205.6, please click here)

California: Anti-SLAPP motion denied; dentist used patient images and history in infomercial
Bertsch v. Wellness Hour, Inc.
Court of Appeals of California, Fourth District, Division One
Case No. D057980
Filed December 7, 2011
Opinion by Justice Judith A. Haller

Colorado: Uranium and vanadium mill permitted, not "hazardous waste" disposal
Sheep Mountain Alliance v. Board of County Commissioners, Montrose County, Colorado, et all.
Court of Appeals of Colorado, Division One
Case No. 11CA0588
Decided December 8, 2011
Opinion by Judge Daniel M. Taubman, JJ Román and Booras concurring.

New York: Lack of informed consent claim, an issue of fact, survives motion for summary judgment
Giambrone v. Dr. Tony Farha, et al.
Supreme Court, Kings County
Case No. 24663/08
Decided December 20, 2011
Opinion by Judge David Schmidt

Virginia: Denying parental rights to sperm donor, mother's ex-boyfriend, "manifestly unjust"
Breit v. Mason
Court of Appeals of Virginia
Record No. 0337-11-1
Decided December 28, 2011
Opinion by Chief Judge Walter S. Felton, Jr.

Federal: No attorney fees for prelim. injunction in "Right to Know" radio frequency case
CITA-The Wireless Association v. City and County of San Francisco
United States District Court, Northern District of California
Case No. C 10-03224 WHA
Decided January 3, 2012
Opinion by Judge William Alsup

Federal: Payments to Underground Storage Cleanup Fund fall under collateral source rule
In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation
United States District Court, S.D. New York
Case Nos. 1:00-1898, MLD 1358 (SAS), M21-88
Decided December 6, 2011
Opinion by Judge Shira A. Scheindlin

Federal: Decision of Social Security Commissioner vacated for failure to elicit proper testimony
Jusino v. Commissioner of Social Security
United States District, District of Puerto Rico
Civil No. 10-2235 (CVR)
Decided January 3, 2012
Opinion by Magistrate Judge Camille L. Velez-Rive

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About Public Health Law News

The CDC Public Health Law News is published the third Thursday of each month except holidays, plus special issues when warranted. It is distributed only in electronic form and is free of charge.

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


News content is selected solely on the basis of newsworthiness and potential interest to readers. CDC and the Department of Health and Human Services (DHHS) assume no responsibility for the factual accuracy of the items presented from other sources. The selection, omission, or content of items does not imply any endorsement or other position taken by CDC or DHHS. Opinions expressed by the original authors of items included in the News, or persons quoted therein, are strictly their own and are in no way meant to represent the opinion or views of CDC or DHHS. References to products, trade names, publications, news sources, and non-CDC Websites are provided solely for informational purposes and do not imply endorsement by CDC or DHHS. Legal cases are presented for educational purposes only, and are not meant to represent the current state of the law. The findings and conclusions reported in this document are those of the author(s) and do not necessarily represent the views of CDC or DHHS. The News is in the public domain and may be freely forwarded and reproduced without permission. The original news sources and the CDC Public Health Law News should be cited as sources. Readers should contact the cited news sources for the full text of the articles.


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