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December 2012 - CDC Public Health Law News

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Statue of Lady Justice Public Health Law Program,
Office for State, Tribal, Local and Territorial Support,
Centers for Disease Control and Prevention

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In this Edition


Webinar: Sustaining the Safety Net: Addressing the Uncertain Financial Future of Public Hospitals. The American Health Lawyers Association (AHLA) is hosting a webinar on Friday, January 11, 2013 from 1:00–2:00 pm (EST). The webinar will feature a moderated panel discussion of topics and issues of likely interest to any lawyer who represents public hospitals or advises clients on matters involving public hospitals, including the post-healthcare reform environment facing public hospitals; reduction of disproportionate share hospital funding and the introduction of other payment pressures under the Affordable Care Act (ACA); transformation of healthcare delivery systems to reduce cost and improve quality; impact on public hospitals of the U.S. Supreme Court’s decision on the expansion of Medicaid under ACA; effect of state budgetary cuts on public hospitals; and strategic options, restructuring alternatives, and exit strategies to address excessive public hospital debt. Find more information and register for the webinar.

Model Aquatic Health Code Module open for public comment. The Model Aquatic Health Code (MAHC) module on Monitoring and Testing is available for public comment until Sunday, February 10, 2013. The module identifies activities and procedures that pool and spa operators should follow to proactively evaluate the water and air quality in their facilities. Find more information and review the module.

O'Neill Institute accepting Law Fellow applications. The O'Neill Institute for National and Global Health Law, 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 outstanding 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, 2013. Direct questions about the position to Find more information about the fellowship [PDF - 618KB].

Job Opening at Office of Tribal Justice (OTJ) for the Department of Justice. OTJ seeks an experienced attorney to serve as attorney advisor to provide counsel and assistance to the director and deputy directors. The OTJ is the primary point of contact for the Department of Justice with federally recognized Native American tribes, and advises the Department on legal and policy matters pertaining to Native Americans. OTJ promotes internal uniformity of department policies and litigation positions relating to Indian Country and ensures that the department clearly communicates policies and positions to tribal leaders. Applicants must hold a J.D. and are required to submit a cover letter (highlighting relevant experience) and resume or OF-612 (Optional Application for Federal Employment). The vacancy will be open until January 11, 2013 or until a selection has been made. Find more information about the job opening.

Joint J.D./M.P.H. degree to be offered through the University of Nebraska. Beginning in fall 2012 the University of Nebraska will begin offering a joint Juris Doctor/Master of Public Health degree from the University of Nebraska-Lincoln College of Law and the University of Nebraska Medical Center College of Public Health. Learn more about the University of Nebraska's dual degree program.

Call for Nominations: Foundations of Health Law. The American Society of Law, Medicine & Ethics (ASLME) and the Association of American Law Schools Section on Law, Medicine & Health Care seek nominations of foundational works of scholarship in health law, very broadly defined, published in English before December 31, 2012. ASLME intends to publish an edited volume in an academic press. Nominations must be accompanied by a brief description, not to exceed 300 words, of the importance of the scholarly work, addressed to: Ted Hutchinson, Executive Director, American Society of Law, Medicine & Ethics, 765 Commonwealth Avenue, Boston, MA 02445, first round of nominations will close on December 31, 2012. Find more information about the call for nominations.

Legal Tools

The CDC's Public Health Law Program has completed a compendia topic on Graduated Drivers Licensing. This is a compilation of public domain, web-based information and resources that provides links to the science, policy, and legal strategies state jurisdictions, federal agencies, and interested organizations use to reduce teenage driver deaths and crashes by implementing graduated drivers license laws. Find more information and access the compendia.

The Network for Public Health Law has released Anti-bullying Statutes, A 50-State Compilation [PDF - 538KB], providing information on the status of anti-bullying laws in each state as well as links to the legislation. The document was developed by Nicole Grimm with supervision from Christina Meneses, staff attorney at the Network for Public Health Law- Eastern Region.

Top Stories

National: Tobacco companies are told to correct lies about smoking

New York Times (11/27/2012)

On November 27, Judge Gladys Kessler, of the United States District Court for the District of Columbia, ordered tobacco companies to publish corrective advertisements, admitting the companies had lied about the smoking risks and disclosing smoking's negative health impact.

Though Judge Kessler had previously said she wanted the tobacco companies to correct their false statements, the November 27 ruling is the first time she has elucidated exactly what the statements must say. Each corrective advertisement begins with a statement that a federal court has concluded that the tobacco companies "deliberately deceived the American public about the health effects of smoking."

The corrective statements, proposed by the Justice Department, were strongly opposed by tobacco companies, claiming such proposed industry-financed corrective statements were essentially "forced public confessions."

According to the November 27 opinion, all of the corrective statements are based on the court's factual findings. "This court made a number of explicit findings that the tobacco companies perpetuated fraud and deceived the public regarding the addictiveness of cigarettes and nicotine," the opinion said.

The ruling marks the latest judicial holding in a case that was brought by the U.S. Government in 1999.

[Editor's note: Read the United States District Court opinion.]

Connecticut: DMV to require new drivers over age 18 to have learner's permits before taking road test  

Manfield-Storrs Patch (12/10/2012) Ronald DeRosa

Beginning January 1, 2013, state residents over age 18 who seek to obtain a driver's license for the first time must hold a three-month learner's permit before taking the road test.

Connecticut is one of only a few states that require adult learner's permits. The Connecticut Department of Motor Vehicles (DMV) hopes the new requirement will help resolve highway issues. "Cars are more sophisticated today, traveling roads can be more dangerous for inexperienced drivers and some form of a learning period is required now for those over 18, just as we have done for those under 18," said DMV Commissioner Melody A. Currey.

The DMV anticipates more than 30,000 people annually will be subject to the new law, including teens who delayed getting drivers licenses in order to circumvent restrictions upon 16- and 17-year-old drivers.

The new requirement marks a notable change in 106 years of state history in which legal adult was not required to have driver-training period.

[Editor's note: Find more information and read Connecticut's new licensing requirements.]

Briefly Noted

California: Multi-family buildings required to have carbon monoxide detectors
Monoxide detector rules expand Jan. 1
San Francisco Chronicle (11/29/2012) Ellen Huet

California: New law prohibits gag clauses in civil settlements with professionals
New law bans gag clauses in settlements with licensed professionals
California Watch (12/10/2012) Christina Jewett

Hawaii: New law provides two years to file suit outside of sexual abuse SOL
Isle man suing church, order under new law
Maui News (12/09/2012) Lila Fujimoto
[Editor's note: Find more information and read Hawaii's law extending the statute of limitations for civil actions brought by those subjected to sexual offenses as a minor.]

New Jersey: Wine makers may ship product directly to consumers under new law
NJ wineries toast new distribution law
CBS Philly (12/10/2012) Steve Tawa

New York: Court holds PREP Act preempts state law in vaccination suit
Mom loses suit over daughter's H1N1 vaccine
Courthouse News Service (12/03/2012)
[Editor's note: Find more information and read the appellate court opinion [PDF - 91KB].]

Oregon: Seven-year-old medical marijuana patient legally using equivalent of 10 joints
7-year-old girl one of Oregon's youngest medical marijuana patients
Press-Telegram (11/26/2012)

National: Record penalty in Deep Water Horizon Gulf oil spill
BP to pay record penalty for Gulf oil spill
CNN Money (11/15/2012) Chris Isidore

National: In wake of compounding meningitis disaster, FDA seeks greater authority
F.D.A. chief seeks expanded authority to improve safety of drug compounders
New York Times (11/14/2012) Sabrina Tavernise

National: Parental rights of parents with disability challenged
Report: Disabled parents face bias, loss of kids
USA Today (11/26/2012)

National: Veterans discharged with PTSD symptoms file suit
Vietnam veterans, discharged under cloud, file suit saying trauma was cause
New York Times (12/02/2012) James Dao

International: Japan licenses Pepsi's ‘fat-blocking' drink
Can Pepsi's new soda really burn fat?
The Week (11/12/2012)

Feature Profile in Public Health Law

Gerrit T. Bakker

Title: Senior Director, Public Health Preparedness

Organization:  ASTHO

Education: BS, University of Iowa

V. Scott Fisher

Title: Director, Preparedness Program

Organization: NACCHO

Education: MPH, The George Washington University School of Public Health

CDC Public Health Law News (PHLN): What sparked your interest in preparedness and what career path led you to your respective organizations and positions? 

Bakker: I have worked in public health for 30 years. I spent 27 years at the Colorado Department of Public Health and Environment in several capacities, culminating in preparedness. Public health preparedness is the best way I know to combine all that I have learned and practiced in my career. When I retired from Colorado, I wanted a chance to work with my colleagues from other states at the national level. ASTHO presented me with that opportunity and I am grateful and humbled by the chance I was given to do this work.

Fisher: Shortly after receiving my MPH, I began my career with the National Association of County and City Health Officials (NACCHO). At that time, preparedness and bioterrorism was a growing field within public health.  It was an area of great interest to me. A little over a year later, 9/11 occurred and the importance of public health preparedness grew exponentially. This resulted in a national emphasis on public health preparedness and NACCHO, as a catalyst for local public health, afforded me an opportunity to grow and develop while working in an area of interest.

CDC PHLN: Please describe your organizations' missions, goals and subject matters or issues typically falling within your organizations' purview.

Bakker: ASTHO represents the 59 health commissioners of the states, territories, and freely-associated states, but on another level we also represent the thousands of men and women who work in state and territorial health departments across the country. We serve as their representatives in Washington, D.C. and their voice to other state and national partners. Our organization works on a wide variety of public health issues including: preparedness, infectious diseases, immunization, and environmental health. Other areas of the organization focus on a wide range of performance, prevention and governmental relations issues.

Fisher: NACCHO is the national non-profit membership association representing the nation's approximately 2,800 local health departments, including city, county, metro, district, and tribal agencies. NACCHO's mission is to be a leader, partner, catalyst, and voice for local health departments in order to ensure the conditions that promote health and equity, combat disease, and improve the quality and length of all lives.

CDC PHLN: Please describe your respective duties and responsibilities.

Bakker: My program works on all aspects of public health and health care system preparedness and parallels the subject matter of the state preparedness programs. We support the state preparedness directors and strategic national stockpile coordinators peer groups and work on other projects with federal agencies that currently includes: the development of the National Health Security Preparedness Index, Administrative Preparedness and a National Nurse Triage Line.

Fisher: My responsibilities include overseeing a number of NACCHO's public health and healthcare preparedness initiatives, including Project Public health Ready, Administrative Preparedness, and Sustaining Local Preparedness Infrastructure, designed to support local health departments and their ability to plan for, respond to, and recover from public health emergencies. Our work also supports our Federal partners, including CDC, by providing opportunities to communicate and exchange information with local health departments to ensure that national programs and guidance effectively, appropriately, and accurately reflect the preparedness activities of local health departments (LHDs).

CDC PHLN: Do you see yourself as working with public health laws in any way?

Bakker: Our work on public health law is to monitor issues that affect our membership and provide information to key decision makers about issues that are important to our membership and the impact of potential legislation on our members.

Fisher: NACCHO's efforts involving public health law and preparedness are designed to improve the understanding and use of the law by LHDs as a tool for effective all-hazards preparedness. NACCHO accomplishes this by disseminating relevant information and guidance, developing tools and resources, and providing training opportunities to local health departments. For example, NACCHO recently released Public Health and the Law: An Emergency preparedness Training Kit.  The kit is designed to prepare local health officials and their respective legal counsel, public health practitioners, emergency mangers, and partners to better understand and effectively address the changes in the legal environment that occur as a result of a public health emergency.

CDC PHLN:  How would you characterize administrative preparedness?

Bakker: Administrative Preparedness is the work that (in our case) state health agencies need to do to be prepared to quickly and efficiently respond to an emergency event. These include administrative procedures related to hiring, contracting, and procurement. States need to be able to receive, track, and disburse resources quickly and efficiently in an accelerated process to provide the highest quality services to their constituents and exhibit responsible stewardship in the process.

Fisher: Administrative preparedness has been defined as "the process of ensuring that fiscal and administrative authorities and practices that govern funding, procurement, contracting, hiring, and legal capabilities necessary to mitigate, respond, and recover from public health threats and emergencies can be accelerated, modified, streamlined, and accountably managed at all levels of government." This really speaks to those core internal processes and procedures that local health departments need to have in place to effectively respond and recover from a public health emergency.

CDC PHLN:  What projects and partners are involved in your work to encourage and support administrative preparedness?

Bakker: We have worked with our ASTHO peer networks of preparedness directors, human resource directors and fiscal officers. In addition to our close partnership with NACCHO we have also worked with the National Governor's Association, the National Association of Procurement Officials and the National Association of Budget Officers.

Fisher: As mentioned by Gerrit, NACCHO maintains a close partnership with ASTHO to ensure that a state and local public health perspective is incorporated into our work to address administrative preparedness. NACCHO also collaborates with its federal partners, including CDC and the Office of the Assistant Secretary for Preparedness and Response to address this important topic.

CDC PHLN: In the past year, your organizations have partnered with the CDC Division of State and Local Readiness, Office of Public Health Preparedness and Response (OPHPR) to identify opportunities to develop actionable administrative preparedness recommendations for state health departments in through the Hospital Preparedness Program (HPP) and the Office of Public Health Preparedness and Response  to support the Public Health Emergency Preparedness Cooperative Agreement (PHEP) Funding Opportunity Announcements (FOA). Why is supporting administrative preparedness important to your organizations?

Bakker: In this time of limited funds and fiscal challenges across all of public health it is essential for our members to maximize all resources. It is equally important for us to be able to have the skills and tools to support their efforts.

Fisher: NACCHO's role as an organization is to support local health departments in their efforts to plan for, respond to, and recover from public health emergencies. The ability to address administrative preparedness and the challenges associated with fiscal and administrative authorities and practices that govern funding, procurement, contracting, hiring, and legal capabilities can either serve to enable or hinder a local health department's ability to effectively respond and recover from a public health emergency.

CDC PHLN:  With respect to administrative preparedness, what type of ongoing support are you providing to your members?

Bakker: Currently we are helping to identify and catalog best practices, tools and resources.  We are also looking to identify gaps in what states need for us to help develop in the future.

Fisher: With funding from CDC and in collaboration with the Harvard School of Public Health and ASTHO, we spent the last year investigating the barriers and practices from state and local health departments regarding administrative preparedness. NACCHO has hosted a webinar for state and local health departments to raise awareness about administrative preparedness and to disseminate some of the preliminary findings from the research. Over the course of the next year, we plan to identify practices and recommendations that state and local health departments can use to address some of the challenges identified.

CDC PHLN:  What criteria have you identified as being vital to administrative preparedness?

Bakker: As with all issues related to public health and preparedness, inclusion is key. Having the right partners in place early in process will always go a long way in developing any solution.

Fisher: Through its work with the Harvard School of Public Health, NACCHO has identified five core domains that are crucial to administrative preparedness.  These domains encompass a health department's ability to accept, allocate, spend, monitor, and report funds for a response to a public health emergency. 

CDC PHLN:  How did you discern and define such criteria? How will you help you members and partners meet the criteria for administrative preparedness?

Bakker: We worked with various focus groups of multiple aspects of our membership to determine what was important to them and what they had learned in previous responses. We hope to develop systems and processes that will support membership well into the future.

Fisher:  Information on each of these domains was gathered through qualitative key informant interviews with state and local health department representatives. The results from this initiative will be published in the March 2013 issue of the Journal of Public health Management and Practice.

CDC PHLN:  As your organizations' understanding and focus on administrative preparedness has grown, have you identified any new stakeholders or partners? If so, who and what are their roles?

Bakker: I think the next level of partners begins with the public health law community who we hope to engage in the coming year. Their understanding of legal barriers and challenges with these issues will be crucial.

Fisher: Although it's not a new partner, we need to continue to engage state and local health departments on this important topic. We need to encourage local health departments to examine their plans, policies, and procedures regarding administrative preparedness and, when appropriate, adopt practices that have shown to be effective.

CDC PHLN:  Are there any specific administrative preparedness projects or tools that you are particularly promising or exciting?

Bakker: Although there are many promising practices, the challenge with anything that we have identified as promising to a state is determining its applicability across the country. The next year will be used to help clarify some of these issues.

Fisher: While we have identified several practices from the field that state and local health departments have used  to address administrative preparedness we have not identified any as promising as it relates to its cross jurisdictional applicability.  NACCHO's role in the coming year will be to identify these practices, assess them against the established criteria, determine their applicability for other local health departments, and disseminate those deemed effective or relevant based on the criteria and applicability.  

CDC PHLN:  What new projects and tasks do you anticipate in the coming year?

Bakker: We hope to look at formulas that states use to fund local health departments, help to determine potential costs for a future pandemic response, and begin to catalog emergency authorities for states.

Fisher: Over the course of the next year we hope to identify practices and make recommendations that state and local health departments can use to address some of the challenges associated with administrative preparedness. Some of the topics NACCHO intends to cover include the authorities that govern administrative preparedness and procurement of goods and services during an emergency. NACCHO has also incorporated the concept of administrative preparedness into Project Public Health Ready through the adoption of specific administrative preparedness criteria. Project Public Health Ready is NACCHO's criteria-based public health preparedness program that assesses LHD capacity and capability to plan for, respond to, and recover from public health emergencies.

Court Opinions

Michigan: Owner entitled to opportunity to repair before unsafe structure's demolition
Bonner v. City of Brighton [PDF - 39KB]
Court of Appeals of Michigan
Case No. 302677
Filed 12/04/2012
Opinion by Judge P.J. Markey

New Hampshire: DHHS has broad authority to investigate disease outbreaks
Exeter Hospital, Inc. v. Dr. Sharon Alroy-Preis, et al. [PDF - 718KB]
Superior Court of
Case No. 217-2012-CV-00617
Filed 10/31/2012
Opinion by Judge Richard B. McNamara

Federal: Damages for failure to pick up and dispose of radioactive waste
Portland General Electric Company v. U.S. [PDF - 293KB]
United States Court of Federal Claims
Case No. 04-09C
Filed 11/30/2012
Opinion by Judge Eric G. Bruggink

Federal: Injunction against sexual orientation therapy law denied
Pickup v. Brown [PDF - 466KB]
United States District Court for the Eastern District of California
Case No. 2:12-CV-02497-KJM-EFB
Filed 12/04/2012
Opinion by District Judge Kimberly Mueller

Federal: Convection overturned-free speech in promoting drug's off-label use
U.S. v. Caronia [PDF - 215KB]
United States Court of Appeals for the 2nd Circuit
Case No. 09-5006-cr
Filed 12/03/2012
Opinion by Judge Denny Chin

Quotation of the Month

Ari Ne'eman, activist for autism rights and member of the National Council on Disability.

"Parents with disabilities continue to be the only distinct community that has to fight to retain—and sometimes gain—custody of their own children," said Ari Ne'eman, an activist for autism rights and member of the National Council on Disability.

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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