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May 2012 - CDC Public Health Law News

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Gavel Public Health Law Program,
Office for State, Tribal, Local and Territorial Support,
Centers for Disease Control and Prevention

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Director's Note

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

Matthew S. Penn, Director
Public Health Law Program

In this Edition


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

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

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

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

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

Legal Tools

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

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

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

Top Stories

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Briefly Noted

Alabama: Pre-existing condition insurance enrollment increased sixfold in past year
Enrollment surges in Alabama health plan for pre-existing illnesses   (04/30/2012)   Mary Orndorff

California: Patient's files illegally shared with journalists and hospital workers
Hospital violated patient confidentiality, state says
Los Angeles Times   (05/05/2012)   Chad Terhune

Colorado: Nation's toughest trans fats in schools ban passes Senate, heads to House
School trans fats ban draws near in Colorado
Daily Camera (04/30/2012)   Kristen Wyatt

Maine: Community based services to nursing home patients by state
Court approves deal giving state's patients alternative to nursing homes
Kennebec Journal   (05/04/2012)   

South Carolina: Pet food plant linked to 14 people sickened with Salmonella
Salmonella in dog food sickens 14 people
Atlanta Journal Constitution   (05/04/2012)   Jeffrey Collins

Texas: State not irreparably harmed waiting to enforce Planned Parenthood law
Judge: Texas can't cut funds to Planned Parenthood
Atlanta Journal Constitution   (05/04/2012)   Chris Tomlinson
[Editor's note: Read the U.S. Court of Appeals for the Fifth Circuit's Order.]

Vermont: After considerable debate, vaccination exemption remains
Legislature votes to preserve vaccination exemption
Burlington Free Press   (05/04/2012)   Terri Hallenbeck

Washington: Governor makes $90,000 available for whooping cough epidemic
State acts to stem spread of whooping cough
The News Tribune   (05/04/2012)   Mike Baker

National: National Institutes of Health to try to "teach old drugs new tricks"
Collaboration seeks to find new uses for failed drugs
Washington Post   (05/03/2012)   David Brown

National: Chemical levels exceed Consumer Product Safety Commission Standards
Study: Toxic chemicals found in gardening tools
CNN   (05/03/2012)   Saundra Young

National: Deadly listeria cantaloupe outbreak could have been prevented
Third-deadliest U.S. food outbreak was preventable, experts say
CNN   (05/03/2012)   Scott Bronstein and Drew Griffin

Feature Profile in Public Health Law

Sara Zimmerman of the National Policy & Legal Analysis Network to Prevent Childhood Obesity

Title: Senior Staff Attorney and Program Director
Organization: National Policy & Legal Analysis Network to Prevent Childhood Obesity (NPLAN), a ChangeLab Solutions Project
Education: University of California, Berkeley

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

Zimmerman: My route to public health law was a bit circuitous.  I've always had a deep commitment to social justice, inherited from my father, who was a civil rights worker in the South during the sixties, and my mother, who has been on the front lines as a social worker for forty years.  After working for several years as a labor organizer and at a legal services agency, I went to law school at UC Berkeley. Following that, I clerked for Judge Richard Paez of the Ninth Circuit Court of Appeals. There, I was exposed to many different kinds of legal issues, and saw how they affected individual lives and functioned as far-reaching precedent. In subsequent years, I worked on a range of fascinating and critical issues: disability rights, immigration issues, criminal justice, community economic development, and more. When I saw a job posting for my current position, I wasn't sure whether public health was the right field for me. But in fact it has been a perfect fit, because public health law brings together the wide range of different issues that I care about under the common umbrella of creating healthier and more vibrant communities.

CDC Public Health Law News: What is your role as a senior staff attorney and program director at NPLAN?

Zimmerman: As a senior staff attorney, I direct much of our active transportation-related legal and policy work, focusing on how policy changes can make it easier for people to get physical activity as part of their daily routines. Part of what is fun and energizing about my work is that I play a number of different roles. I do legal research, work with stakeholders in the field, and develop new tools – model policies, factsheets, and so on – for people to use to improve health in their communities. I also spend a lot of time answering questions and discussing how to overcome obstacles to healthy policies with people from local government or from nonprofits. I give many presentations at different conferences, meetings, and on webinars.  I'm always getting to think creatively about how we can be more effective through new ideas or new approaches to tackling old problems.

CDC Public Health Law News: What projects are you currently most excited about?

Zimmerman: I am currently excited about a lot of projects!  One project that is at an early stage involves setting out the policy approaches that communities can take to make it easier and safer for people to bicycle around. The issues faced on bicycles are really different than the issues faced by people walking. While approaches like complete streets policies can simultaneously make it easier for bikes and pedestrians, there is also a real need for more policy focus around bicycles specifically, in order to really take advantage of bikes' potential to replace cars for a big portion of those one to five mile trips.

Another really great project I've been working on involves smart school siting. After a couple years of work in this area, we have just published a set of resources for local school districts on this issue, and I've been very pleased by the enthusiastic reception these materials have received in the field.

CDC Public Health Law News: What is smart school siting?

Zimmerman: Smart school siting involves making sure that schools are located strategically within communities to balance and maximize all the different benefits that can come from school locations. There has been a trend over the last 30 years to increasingly place schools on the outskirts of communities, far from where most students and residents live, and this trend has contributed to a variety of problems. Smart school siting is a movement to reverse that trend and encourage local decision makers to be thoughtful about the big picture pros and cons of school locations, instead of defaulting to the biggest and cheapest site.

CDC Public Health Law News: Why is smart school siting an important public health issue?

Zimmerman: Smart school siting is important for public health because children aren't getting enough physical activity these days. This has a number of really bad health effects, and is one of the factors that has resulted in almost 1/3 of kids and teens in this country being overweight or obese. When kids can walk or bike to school, they get regular physical activity as part of their daily routines without taking any time from the school day. But kids can only build this physical activity into their lives if schools are located near to where they live. We also do a lot of work to encourage schools to open up their playgrounds and facilities to children and other community members for use in the evenings, weekends, and summers. But again, if schools are located far from where people in the community live, then people aren't able to go play or exercise on school grounds even if they are open. Smart school siting also provides benefits for school districts – not just because kids who are healthy and getting physical activity show higher academic achievement, but also because financially strapped school districts and states can see real savings by reducing the amount of money spent on busing.

CDC Public Health Law News: How did you become involved with identifying best practices and policies for smart school siting?

Zimmerman: For several years I've worked very closely with a number of organizations that focus on safe routes to school, ensuring that children can safely walk and bicycle to school. But these groups have seen that far-flung schools pose one of the biggest barriers to successfully increasing the number of children walking and biking.  The Safe Routes to School National Partnership came to us a few years ago to ask if we would look at the policy barriers and opportunities in this area. Working with them and many other partners around the nation, we explored some of the key background issues. We have focused particularly on the challenge of creating schools that are both diverse and walkable, which can be difficult in light of the high levels of neighborhood segregation in the United States. While there are no simple answers to how to balance walkability and diversity, we have carefully designed the model policies to support both of these crucial goals.

CDC Public Health Law News: While it is clear that smart school siting is a public health issue, how is it related to law?

Zimmerman: There are several different ways that legal skills are called upon to promote smart school siting policy. First, as I mentioned above, one of the key challenges of smart school siting is locating schools and designing school attendance boundaries and assignment plans to promote walkability and diversity. But in order to make sound recommendations about how schools can consider and prioritize diversity, we need to understand the complex and evolving Supreme Court jurisprudence around how student assignment plans can and cannot consider race. In addition, school siting decisions involve interplay of state law and school district policy. Depending on the state, municipal or county jurisdictions may also have a role. Legal work is necessary to untangle these complicated regulatory knots, and assist districts and advocates in understanding whether a problematic is required by state law or whether it is simply a common practice that doesn't need to be followed.

CDC Public Health Law News: NPLAN has recently published Smart School Siting: How School Locations Can Make Students Healthier and Communities Stronger and model policies for school districts interested in implementing smart school siting. Have any jurisdictions implemented the model policies? If so, with what results?

Zimmerman: Our model standards just came out last month, so it's too early for anyone to have adopted the policies yet. However, we worked with the Montana School Boards Association to develop a version of the policies tailored for Montana, and they have adopted them as recommended policies for districts in Montana, a very exciting endorsement. We'll keep you posted on results as the policies have time to be adopted and begin to affect siting decisions!

CDC Public Health Law News: What are some basic changes individuals can make to support healthy school siting or to improve school siting?

Zimmerman: At the local level, people can let their school districts know that it's important schools not only meet student educational needs, but also support student health and community well-being. I know that schools are constantly asked to do more, even while their budgets are slashed. At the same time, we need to remind schools that they aren't little education islands – their success depends on a healthy and coordinated interaction between schools, town, students, and families. One of the biggest challenges to smart school siting, as well as to efficient and effective local government, is the fact that all too often municipalities and school districts act totally independently of each other. Individuals can encourage districts and municipalities to begin coordinating together, sharing information, engaging in joint land use and site planning, and coordinating the location of parks and schools.

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

Zimmerman: Well, most likely I'd be working in legal services or for a non-profit community group. But, one of my recent fantasies is that I'd have a job developing video games and websites that promote educational and healthy community learning in a fun, engaging, non-didactic way with broad appeal. However, my lack of any computer-related skills makes this a fairly unlikely career transition for me.

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

Zimmerman: One of my favorite ways to spend time is to garden. I like the dirt and I like how everything slowly creeps along and then bursts out. I grow fruit, flowers, and vegetables, all in a slightly disorganized but colorful jumble. My basic approach to gardening is to have some overall goals and plans, based on what worked well in the past and what I want to try differently, but to have fun and see what happens.  I generally encourage little volunteer plants that come up where they will, and I rarely pull up something new without letting it grow and show what it is. Gardening can be a good metaphor for almost anything, but I think that you can take a similar approach to local policy change. You may have a big national view and goals for local policies – but if a safe routes to school policy is growing and thriving where you thought a complete streets policy was in order, maybe you should just water it and see what it produces. Plant seeds, fertilize well, but don't be too controlling, and learn from what happens.

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

Zimmerman: A few of my favorites include The Known World by Edward Jones, Atonement by Ian McEwan, To Kill a Mockingbird by Harper Lee, Stoner by John Williams, and Her First American by Lore Segal. I just read To the End of the World by David Grossman, which was a complicated and heartbreaking book about the unique and universal troubles of modern Israel. But, I also really love children's fantasy literature, in all honesty. One of the great parts of having kids is that I have a good excuse to read all the children's fantasy I can get my hands on.

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

Zimmerman: I have really appreciated the wealth of knowledge and time that people shared with me in the course of working on the school siting project. From local advocates, to national experts, to my colleagues, to people in the many different fields that touch on this work, dozens of people contributed to these products. We'll be continuing to develop more tools related to school siting, as well as refining the current school siting products as we learn more about what works to support healthy kids and schools.

Court Opinions

Kentucky: Cities not employers under Kentucky's Whistleblower Act
Wilson v. City of Central City, Ky. [PDF - 163KB]
Supreme Court of Kentucky
Case No. 2010-SC-000394-DG
Decided April 26, 2012
Opinion by Justice Will T. Scott

Massachusetts: Breastfeeding Mom's rights not violated by medical board policy
Currier v. National Board of Medical Examiners
Supreme Judicial Court of Massachusetts
Decided April 13, 2012
Opinion by Chief Justice Roderick L. Ireland

Mississippi: Plaintiff denied recovery for emotional distress after needle stick
Lee v. K & G Services, Co. [PDF - 125KB]
Court of Appeals of Mississippi
Case No. 2010-CA-01103-COA
Decided April 24, 2012
Opinion by Judge James D. Maxwell, II

Federal: Massage parlor owner denied preliminary injunction against city ordinance
Cousino v. City of Tulsa
United States District Court, Northern District of Oklahoma
Case No. 12-CV-0223-CVE-TLW
Decided on April 26, 2012
Opinion by District Judge Claire V. Eagan

Federal: Health code citations against restaurant had rational basis, not retaliatory
Papas v. Leonard
United States District Court, District of Oregon, Portland Division
Case No. 3:10-CV-00550-BR
Decided on April 25, 2012
Opinion by District Judge Anna J. Brown

Federal: "Bad men" provision of Fort Laramie Treaty may apply to drunk driver
Richard v. U.S. [PDF -186KB]
United States Court of Appeals, Federal Circuit
Case no. 2011-5083
Decided April 13, 2012
Opinion by Judge Evan J. Wallach [Editor's note: Find more information on the Fort Laramie Treaty]

About Public Health Law News

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

The News is published by the CDC Public Health Law Program in the Office for State, Tribal, Local and Territorial Support.


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

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