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February 2012 - CDC Public Health Law News

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Director's Note

Hello! We’re currently redesigning the Public Health Law Program (PHLP) website, and some of our publications will not be available on the website during this time. In an effort to improve the function of the site and accessibility for people with disabilities, we’ll ensure all our publications are in compliance with Section 508 before they are posted again. In the meantime, if you need a specific publication, please contact PHLP. We apologize for any inconvenience this may cause. Thanks again for your interest in our work and the Public Health Law News.

Matthew S. Penn, Director
Public Health Law Program

In this Edition


Workshop on STD Prevention Strategies.  The Division of STD Prevention and the Public Health Law Program are hosting a workshop, “Expedited Partner Therapy - Strategies to Address Common Barriers to Implementation” before the National STD Prevention Conference in Minneapolis, Minnesota. The workshop will be held on March 12, 2012 from 2:00 - 4:00 pm at the Conference location (Hyatt Regency, Minneapolis, MN). Find more information and a description of the workshop.

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

February is Teen Dating Violence Awareness Month. On January 31, 2012 President Obama released a Presidential Proclamation February is National Teen Dating Violence Awareness and Prevention Month, 2012. The President’s Proclamation calls on “all Americans to support efforts in their communities and schools, and in their own families, to empower young people to develop healthy relationships throughout their lives and to engage in activities that prevent and respond to teen dating violence. Find more information about the Presidential Proclamation and statistics about youth and dating violence.

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

J.D./M.P.H. Survey. To help build the field of public health law, the Network for Public Health Law is collecting data to investigate the professional impact of earning both a Juris Doctor (J.D.) and a Masters in Public Health (M.P.H.). If you have both degrees (or a J.D. and another degree similar to an M.P.A.), please help by taking the J.D./M.P.H. survey.

Call for Proposals. Public Health Law Research, a national program of the Robert Wood Johnson Foundation, has released its fourth call for proposals on studies that focus on the effect of laws and policies on public health. The deadline for submitting brief proposals is April 4, 2012 at 3:00 pm EST. Find more proposal information.

Call for grant proposals. The U.S. Department of Justice is soliciting grant proposals for funding to support improvements to public safety, victim services and crime prevention in American Indian and Alaska Native communities. All materials are now accessible for review. Electronic grant applications must be submitted to Community Partnerships Grants Management System by 9:00 p.m. EST on April 18, 2012. Find more information on this grant proposal.

Local wellness policies in six U.S. school districts. The Journal of School Health has published an article, “Results of Evaluability Assessments of Local Wellness Policies in Six U.S. School Districts,” by Seraphim Pitt Barnes and others (originally published August 1, 2011). The Article describes Local Wellness Policies, how the policies have been implemented and evaluated by six U.S. school districts.

Top Stories

Texas: Texas Readies a new weapon against ‘doctor shopping’ for prescription drugs
American-Statesman   (02/02/2012)   Laylan Copelin

After years of collecting Texas citizens’ prescription histories, the Texas Department of Public Safety (DPS) plans to make the data available online so doctors, pharmacists, and law enforcement officials may easily identify patients who are abusing pain medications.

In 2011 the Texas Legislature passed a law making ‘doctor shopping’ a felony. In 2012 the Legislature will consider requiring doctors to check the state prescription database before even writing a prescription.

Many Texas lawmakers feel the laws are necessary to curb the growing problem. “Prescription drug abuse is an epidemic in our state and the nation . . . A lot of folks think, ‘I’m not a drug abuser because I got this [the prescription drugs] from a pharmacy,’” said Texas Senator Tommy Williams.

While there appears to be broad agreement that there is a prescription drug abuse problem, some are yet concerned about what effect the state’s efforts will have on the doctor-patient relationship and confidentiality. “How it is implemented will have a lot to do with the impact on privacy concerns.” Said Lisa Graybill, legal director of the American Civil Liberties Union of Texas.

DPS has indicated that the prescription records are protected by the Federal Health Insurance Portability and Accountability Act (HIPAA). Patient information is currently protected because access to the database is limited to drug investigation officers.

National: High court turns aside recusal request on health care challenge
CNN   (01/23/2012)   Bill Mears

Justice Elena Kagan Served as Solicitor General before beginning her tenure as an Associate Justice of the Supreme Court of the United States (SCOTUS). Political advocacy group Freedom Watch petitioned SCOTUS to recuse Justice Kagan from hearing oral arguments in the Patient Protection and Affordable Care Act (ACA) in March, 2012 because of her former position as Solicitor General.  The Court’s subsequent ruling indicated Justice Kagan will be among those hearing the case and will not be recused.

Several other organizations have requested her recusal as well as Justices Clarence Thomas and Antonin Scalia.

“The Justices work for us, and the Supreme Court is the people’s court, not the justices’ court. I hope they will sober up and do the right thing and disqualify Justice Kagan from sitting on the Obamacare case, as she has a textbook conflict of interest given her involvement in the drafting of, and supporting, the legislation, while she was an official of the Obama administration at the Department of Justice,” said Larry Klayman, head of Freedom Watch.

When the ACA came up during Kagan’s Senate confirmation hearings she said she sat in “at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred.”

The Supreme Court makes autonomous decisions regarding whether its justices should be disqualified because of conflicts of interest and does not usually discuss such discussions publicly. Justice Kagan has recused herself from considering at least 28 other cases accepted by the Supreme Court.

National: School lunch nutrition standards upgrade
AZ Journal   (02/01/2012)   Teri Walker

The United States Department of Agriculture (USDA) released new school lunch standards on January 26, 2012. The new standards, taking effect July 1, 2012, require schools to incorporate more fruits, vegetables, low-fat milk and whole grains in their lunch menus. Schools must also reduce sodium, saturated and trans fat content in meals, keeping the meals within specific caloric guidelines.
A broad variety of interest groups and organizations commented on the proposed guidelines, including food service management companies, the food industries, school food authorities and nutrition, and health and child health advocates. 

Many of those who made comments are dissatisfied with the final guidelines, feeling the limits are either too stringent or not stringent enough.

The USDA officials said the administration “has taken into consideration the different views expressed by commenters and seeks to be responsive to the concerns raised by stakeholders, especially those responsible for the management and day-to-day operation of the school meal programs. At the same time we are mindful that the overweight and obesity epidemic affecting many children in America requires that all sectors of our society, including schools, help children make significant changes in their diet to improve their overall health and become productive adults.”

(Editor’s note: Find more information about the Nutrition Standards for School Meals.)

Briefly Noted

Hawaii: Only state without ‘Move Over’ bill moves law to fast lane
‘Move Over’ bill urges Hawaii drivers to exercise caution when approaching emergency vehicles
Republic   (01/30/2012)  

Indiana: New law plays offense against trafficking in anticipation of Super Bowl
Super Bowl prompts Indiana to rewrite human trafficking law
Stateline   (02/01/2012)   Maggie Clark

Kentucky: Adult abuse registry would help employers screen for abusers
House Panel backs adult abuse registry
Courier-Journal   (01/26/2012)  

Missouri: Mo. AG files suit against contractor obligated to repair tornado damage
Law suit accuses contractor of cheating tornado victims
Joplin Globe   (02/02/2012)   Kelsey Ryan
(Editor’s note: Find more information about severe weather preparedness)

National: U.S. Chamber of Commerce enters cigarette warnings battle
Chamber of Commerce speaks out against the government’s plan for graphic cigarette labels 
Star Tribune   (01/31/2012) 

International: FDA approves circumcision device, HIV prevention
AIDS prevention inspires ways to make circumcisions easier
New York Times   (01/30/2012)   Donald G. McNeil, Jr.

Feature Profile in Public Health Law

Michael E. Bird

Tribes:  Kewa Pueblo (aka Santo Domingo Pueblo) and Ohkay Owingeh Pueblo, New Mexico

Education: MSW, University of Utah; MPH, University of California, Berkeley

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

Bird: As far as coming to the attention of CDC Public Health Law News, I was invited by CDC to be part of a team who was tasked with developing and teaching a course on American Indian Health for CDC Personnel in 2011. 

CDC Public Health Law News: You were the first American Indian and the first social worker elected to serve as president of the American Public Health Association, 2000-2001. How did your background and experiences support you in that position? 

Bird: Being the first American Indian to serve as President of the American Public Health Association was a wonderful blessing and challenge at the same time.  I don't know if it's ever easy being the first in anything.  There's the challenge of doing what needs to be done but there's also the awareness that you are being viewed as something new and may reflect a change in the status quo. Some people are ready for that and some are not.  I believe that I reflected some values and perspectives that resonated with the membership.  Those values and my social work and public health experience on the front line in the community were my foundation.

CDC Public Health Law News: As a public health consultant, you must work on a wide variety of projects. Will you please describe some of your current projects?

Bird: I have been involved as a consultant to the Pueblo of Kewa in their successful takeover of the Kewa Pueblo Health Center from the Indian Health Service. This was accomplished under the authority of P.L 93-638, the Indian Self-Determination and Education Assistance Act. This is federal legislation which allows tribes to contract programs that have been administered by the United States Public Health Services (U.S.P.H.S.), Indian Health Service. 

I also have been assisting Health Action New Mexico in advocating for the Dental Health Aide Therapist (DHAT) Model. The goal of this effort is to create access to dental services in rural areas of New Mexico, services which are sadly lacking. New Mexico ranks 49th in the U.S. in dentists per 1,000 people.  This has a negative impact on the American Indian Community but also all the citizens of New Mexico.  This is part of a five state effort that is being supported by the W.K. Kellogg Foundation and based on the very successful Alaska Native DHAT Model. As for other work, last year I was also invited to speak on American Indian Health Disparities at Syracuse University, the University of Colorado, Johns Hopkins University, and the Seva Foundation.  I also serve on the following boards: Health Action New Mexico, Kewa Pueblo Health Corporation, the Seva Foundation, the American Indian Graduate Center, National Policy Council of AARP, and the National Collaborating Centre for Aboriginal Health (Canada).

(Editor’s note: The United States Public Health Service (P.H.S) was created in 1944 by the Public Health Service Act and is currently in the United States Department of Health and Human Services (H.H.S.) The Indian Health Service (I.H.S.) began in 1955 to assist the Bureau of Indian Affairs with health care of American Indians and Alaska Natives and now resides as an agency in H.H.S. Find more information about H.H.S. and I.H.S.)

CDC Public Health Law News: What is Health Action New Mexico and how are you working to support that organization and its mission?

Bird: Health Action New Mexico is a non-profit organization dedicated to working for accessible, affordable, and accountable health care for all people living in New Mexico and focused on engaging all citizens in health care reform. I currently serve on the Board of Directors of Health Action New Mexico.

CDC Public Health Law News:  Why is access to dental therapists in rural areas such an important public health issue?

Bird: In New Mexico, 34% of all 3rd graders have untreated dental decay, 33 counties have limited access to dentists, and six counties are without dentists — not to mention that fewer dentists are taking Medicaid patients.  On a national level, the U.S. Surgeon General's 2000 report on Oral Health in America acknowledged the need to improve oral health. Unfortunately, the need has not been addressed and millions of Americans continue to lack access to care and suffer needlessly.

CDC Public Health Law News: How is the provision of and access to this type of care related to Tribes’ sovereign nation status? 

Bird: Prior to the passage of the Affordable Care Act (ACA) Tribes/Alaska Natives had the authority to exercise the use of dental health aide therapists in the provision of oral health care to their members.  There is a provision in ACA that now requires Tribes, Pueblos, and Nations to seek state approval.  First and foremost this is an infringement on the sovereign rights of tribes to determine what is best for their own tribal communities; this is an inherent right. Alaska Natives are the only exception since they fought to exercise this option prior to ACA going into effect. They had limited access to dental care and were able to implement the DHAT to address the needs of their community and their needs are better being met.  

CDC Public Health Law News: What legislative barriers do you perceive as barriers to access to dental therapist care?

Bird: The American Dental Association (ADA) has been in opposition to the DHAT Model in Alaska and lobbied for the provision in the Act. The ADA continues to lobby against DHAT at the State level. Tribal communities with limited or no access to dental care are suffering needlessly.

CDC Public Health Law News: How might regulation of dental therapists conflict with the Indian Self-Determination and Education Assistance Act (ISDEAA)?

Bird: The stated intent of the Indian Self-Determination and Education Assistance Act under P.L. 93-938 is to allow Tribes, Pueblos, and Nations to determine what is best for their people. A provision in the Affordable Care Act is contrary to the intent of P.L. 93-638 and is clearly in response to the fact that Alaska Natives were able to exercise this authority in the best interest of the oral health needs of their people. 

CDC Public Health Law News: You recently worked as a liaison and facilitator between your Tribes and Indian Health Services (IHS), transitioning health services from IHS to an autonomous, tribe-directed health service model under the ISDEAA. Can you tell us a little bit about the driving forces behind that transition and the resulting program? 

Bird: In my opinion, the rationale behind the move to assume responsibility for the administration of the Kewa Pueblo Health Center was the desire to improve access to care and promote quality and culturally-appropriate care, as well as equity in resource distribution.  There was also a lack of respectful communication with Tribal and Health Board Leadership.  We can and are doing better!

CDC Public Health Law News: How was the transition from IHS-directed health service to autonomous service challenging or rewarding? 

Bird: It was challenging in that some forces we were dealing with wanted us to fail and did as much as possible to undermine our efforts. Some chose to delay, stall, and not conduct themselves in a professional manner and were not in accord with the spirit and intent of P.L. 93-638 or the articulated values of the Indian Health Service.

The reward is in seeing a community dream and visualizing what can be and working together despite the obstacles both internally and externally. The sky is the limit and we are seeing immediate impact as it relates to greater number of providers, new services and programs, and most importantly, a functioning community based health center which is at the heart of this effort.

CDC Public Health Law News: As a Tribal member, social worker, and former IHS employee, you must have brought a unique and multifaceted understanding to the transition. How was your perspective an asset? 

Bird: After working for 20 years at IHS in New Mexico I had a working knowledge of the system and the people involved, so I was the IHS Scout in this effort.  One aspect that certainly benefited our efforts was the relationships we were able to develop with outside agencies such as the American Public Health Association (APHA).  We were the first Tribal Delegation to visit with Dr. Georges Benjamin, APHA Executive Director, and had the opportunity to host both Dr. Benjamin and Dr. Carmen Nevarez, President of APHA, at Kewa Pueblo.  We made a point of raising the issues of the Kewa Pueblo Health Board/Corporation to a national level.

CDC Public Health Law News: Do you have any advice for others who are working to create similar programs?

Bird: Get a good Scout, good board of directors, and a good attorney.  You also have to be committed to a long process.

CDC Public Health Law News: As a public health consultant, how do you interact with law on tribal public health issues?

Bird: First and foremost American Indian Tribes have the longest standing legal relationship with the United States Government. It is based on the concept of a government to government relationship, recognizing the unique legal status of American Indian Tribes. Inherent in the relationship is the fact that federal policy has had a profound impact on tribes and American Indian populations throughout the history of this country. Federal Indian Law and Policy have been the blue print for how the United States has dealt with American Indians including healthcare. It clearly would benefit all non-Indians to better understand this legal relationship. There are lessons that could benefit all of us.

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

Bird: Teaching and mentoring now that I know a few things.

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

Bird: I love traveling, good art, all types of music, and Pueblo food.  I enjoy running and have run four marathons – most recently, the Marine Corp Marathon on October 30, 2011.

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

Bird: I have many favorite books. Two books that come to mind are the Autobiography of Malcolm X by Alex Haley and Facing West: the Metaphysics of Indian Hating and Empire Building by Richard Drinnon.  I recently read Born to Run by Christopher McDougal and The Checklist Manifesto by Atul Gawande.

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

Bird: I'd like to share a quote by Will Rogers (Cherokee Indian) which states, "We're all ignorant, just about different things." I share this because we all have the opportunity to learn something from others if we are open. I am always learning.

More information about Pueblos Indians is available at the Indian Pueblo Cultural Center website.

Court Opinions

California: Litigation privilege applies to doctor’s conduct completing form
Cang Wang v. Heck
Court of Appeals of California, Second District, Division Four
Case No. B228191
Decided January 25, 2012
Opinion by Justice Thomas L. Willhite, Jr.

Federal: ADA claim denied because service dog not trained or vaccinated
Davis v. Dale MA
United States District Court, Central District of California
Case No. EDCV 10-1483, VAP(DTBx)
Decided January 24, 2012
Opinion by Judge Virginia A. Philips

Federal: Ordinance on minimum limo laws unrelated to public health/safety
Bokhari v. Metropolitan Government of Nashville and Davidson County
United States District Court of Tennessee, Middle District Tennessee, Nashville Division
Case No. 3:11-00088
Decided on January 19, 2012
Memorandum by Judge Kevin H. Sharp

Federal: Defective AED suit’s claims not parallel to Federal law but preempted
Walker v. Medtronic, Incorporated
United States Court of Appeals, Fourth Circuit
Case No. 10-2219
Decided January 25, 2012
Opinion by Judge Allyson K. Duncan

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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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