Public Health Law News

September 2017

Letter from the Editor

September is National Preparedness Month. September is also peak Atlantic hurricane season. This month has been marked by the massive destruction caused by Hurricanes Harvey and Irma. With these disasters in mind, we at the Public Health Law News send our thoughts to those whose lives have been affected by the storms. Our thoughts are with them as they repair the damage and continue to grieve the losses in their communities. We send our gratitude to relief workers, including healthcare employees and volunteers, for the hope, professionalism, and assistance they are providing, often at great personal peril and cost. And, we commend those who are making tough decisions under tremendous pressure and hope that the lessons learned during these events will help states and cities be even more prepared when the next disaster strikes.

Natural disasters are inevitable and our preparation is vital. By working together proactively, we can limit the injury and loss of life for the next time we are faced with an emergency or disaster.

F. Abigail Ferrell, JD, MPA
Editor in Chief

Announcements

Pre-Conference Workshop About Public Health Law at American Public Health Association Conference.external icon CDC’s Public Health Law Program (PHLP) will present “Public Health Law: Understanding It and Using It (to Your Advantage),” an interactive course that will provide an introduction to public health law principles and key sources of law, highlighting the relationship between US law and public health practice. Speakers will explain the increasingly transdisciplinary nature of public health practice, provide specific case studies, and describe tools and resources available to help increase competency in public health law. The three-hour course will take place Sunday, November 5, 2017, 8:00–11:30 am. Registration is $175.


Webinar: Increasing Access to Care: Telemedicine and the Law.external icon PHLP is co-sponsoring the second webinar in a three-part series with the American Health Lawyers Association called “Hot Topics at the Intersection of Public Health and Health Care.” This webinar will discuss state and local laws related to telemedicine. This webinar is free and will take place October 17, 2017, 1:00 pm–2:30 pm (EDT).


Journal Article: Public Use of Recreational Marijuana: A Legal Landscape of State Law.external icon This article summarizes legal provisions in Alaska, Colorado, Oregon, Washington, and Washington, DC, that address the use of recreational marijuana in public and how those provisions can be used as examples for other jurisdictions grappling with similar policy issues.


Journal Article: Expanding State Laws and a Growing Role for Pharmacists in Vaccination Services.external icon This article analyzes state statutes and regulations that give pharmacists the authority to administer vaccines. The laws in 50 states and Washington, DC, showed an expansion of pharmacist vaccination authority. (Subscription required.)

Legal Tools

Menu of State Long-Term Care Facility Influenza Vaccination Laws.external iconPHLP has published a series of menus of state healthcare facility vaccination laws. This newest menu should be useful for attorneys, public health practitioners, and policy makers interested in prevention of influenza in long-term care facilities.


Report: Telehealth Private Payer Laws: Impact and Issues.external icon This report, published by the Center for Connected Health Policy, examines how selected commercial payers have responded to telehealth private payer laws.

Top Stories

Texas: The Legal Crises to Follow in Hurricane Harvey’s Wakeexternal icon
The Atlantic (08/30/2017) Vann R. Newkirk II

Story Highlights
Major disasters like Hurricane Harvey cause a host of legal problems. Although post-disaster legal issues can play a huge role in people’s lives, they rarely receive much media attention. The most commonly cited issues relate to property, flood insurance, and Federal Emergency Management Agency programs. Many people face a range of problems when they lose important legal documents because of massive flooding. Some face bankruptcy or unlawfully lose their jobs. Others just want to know where they can go for basic needs, like food and shelter.

Organizations like Lone Star Legal Aid and Texas RioGrande Legal Aid provide free services to those in need. Many people, however, do not realize that they need legal assistance or how much legal assistance is needed. Even fewer realize that free legal aid is available to them. That said, many legal problems last for years; such issues can be beyond the scope of the assistance that pro bono organizations provide.

In addition to legal issues surrounding lost documents and disaster-created damage, such emergencies create opportunities for scams and identity theft.

[Editor’s note: Learn about keeping important documents safe during a disasterexternal icon.]


National: FDA cracks down on stem-cell clinics selling unapproved treatmentsexternal icon
NPR (08/28/2017) Rob Stein

Story Highlights
The Food and Drug Administration (FDA) announced a crackdown on stem-cell clinics to “prevent the use of a potentially dangerous and unproven treatment.”

In the past few years, stem-cell clinics offering unapproved therapies have risen by the hundreds. ”Unfortunately, there are unscrupulous practitioners and clinics that are marketing therapies to patients, often at great expense, that haven’t been proven to work and may be unsafe,” says George Daley, dean of Harvard Medical School.

As part of the enforcement action, FDA has taken action against clinics in California and Florida. The US Marshals Service seized five vials of vaccinia virus (smallpox) vaccine from California Stem Cell Treatment Centers that were intended for smallpox, but were used inappropriately in cancer patients. Elliot Lander, medical director of California Stem Cell Treatment, argued that the cancer treatments were part of a designed research study. “Nobody was charged a single penny. We’re just trying to move the field forward,” says Lander.

Other public health advocates praised the FDA for addressing the problem.

(Editor’s note: Read the FDA statementexternal icon.)

Briefly Noted

Arkansas: Cash concerns rising on medical marijuana and Trump administration policyexternal icon
Talk Business and Politics (09/10/2017) Wesley Brown


California: $417 million awarded in suit tying Johnson’s baby powder to cancerexternal icon
The New York Times (08/22/2017) Roni Caryn Rabin


Connecticut: Abused dogs and cats now have a (human) voice in Connecticut courtsexternal icon
The New York Times (08/27/2017) Rick Rojas
[Editor’s note: Read Connecticut’s Public Act 16-30external icon.]


Florida: Florida Bar offers legal resources ahead of Hurricane Irmaexternal icon
Tallahassee Democrat (09/08/2017)
[Editor’s note: Learn more about Hurricane Irma resources provided by the Florida Barexternal icon.]


Minnesota: Minnesota finds a way to slow soaring health premiumsexternal icon
The New York Times (09/02/2017) Robert Pear
[Editor’s note: Read Minnesota’s Reinsurance Program Law, Chapter 2, SF 1external icon.]


North Carolina: North Carolina law requires nurses to comply with policy demand for blood drawexternal icon
The National Law Review (09/06/2017) Jenny McKellar, Thomas S. Stukes & Anthony H. Brett
[Editor’s note: Read North Carolina’s General Statute § 20-139.1external icon.]


Ohio: Court weighs 1st Amendment challenge to Ohio HIV assault lawexternal icon
The Washington Times (09/04/2017) Andrew Welsh-Huggins
[Editor’s note: Learn more about HIV-specific criminal laws.]


Ohio: North Royalton bans e-cigarettes on all city-owned propertiesexternal icon
Cleveland.com (09/05/2017) Bob Sandrick


Rhode Island: Driver’s ed for parents? Some states say they need itexternal icon
Pew Charitable Trusts (08/25/2017) Jenni Bergal
[Editor’s note: Read Rhode Island’s H 5457 pdf icon[PDF – 20KB]external icon.]


South Carolina: Price-gouging law now in effect in South Carolinaexternal icon
WLTX (09/08/2017)
[Editor’s note: Read South Carolina’s price gouging lawexternal icon.]


Texas: The health dangers from Hurricane Harvey’s floods and Houston’s chemical plantsexternal icon
The Washington Post (09/01/2017) Ben Guarino


Utah: Officer involved in Utah nurse arrest fired from paramedic jobexternal icon
CNN (9/6/2017) Nicole Chavez


Washington: Offshore human testing of herpes vaccine stokes debate over U.S. safety rulesexternal icon
Kaiser Health News (08/28/2017) Marisa Taylor
[Editor’s note: Learn more about Institutional Review Boards (IRB)external icon.]


National: FDA designates MDMA as ‘breakthrough therapy’ for post-traumatic stressexternal icon
Forbes (08/28/2017) Janet Burns


National: Is the opioid crisis a national emergency? No. (At least not officially.)external icon
The New York Times (08/24/2017) Josh Katz


National: Pet turtles blamed for multistate salmonella outbreakexternal icon
CNN (08/29/2017) Jen Christensen
[Editor’s note: Learn more about state turtle-associated salmonellosis laws pdf icon[PDF – 1MB].]

Global Public Health Law
Profile in Public Health Law: Valerie Davidson, JD
Photo: Valerie Davidson


Title: Commissioner of the Alaska Department of Health and Social Services

Education: JD, University of New Mexico Law School in Albuquerque; Bachelor of Education, with a specialty in early childhood education and a minor in bilingual education, University of Alaska Southeast


Public Health Law News (PHLN): How did you become interested in public health?

Davidson:I was born in a public health hospital in Bethel, Alaska. I grew up surrounded by, and because of, public health. Five of my mom’s siblings died as children from the flu and common illnesses associated with early Western contact. My mom had tuberculosis when I was one or two years old. Good public health practices made it possible for our surviving family members to make it to adulthood. As you can imagine, our family is very diligent about hand-washing, immunizations, flu shots, prevention screenings, and wearing personal floatation devices.

After graduate school I worked for eight years at the Yukon Kuskokwim Health Corporationexternal icon (YKHC), a tribal health organization. YKHC, on behalf of 58 federally recognized tribes, provides health services that the federal government previously provided. The emphasis on population health and meeting individuals and communities where they are appeals to my heart. Early, effective, and culturally appropriate interventions make such a difference.

PHLN:What did you do before you were commissioner of the Alaska Department of Health and Social Servicesexternal icon?

Davidson:Most recently, I served for eight years as the senior director of legal and intergovernmental affairs for the Alaska Native Tribal Health Consortiumexternal icon (ANTHC). There, I was a co-lead negotiator of the Alaska Tribal Health Compact and chair of the Tribal Technical Advisory Group to the Centers for Medicare and Medicaid Services. I was fortunate to spend 15 years at YKHC and ANTHC, working on state and national policy matters affecting Indian health. Before graduate school, I was a teacher (Head Start, first grade, and middle school).

PHLN:You were born in Bethel, Alaska, a small city of about 6,000 people. Has your firsthand knowledge of rural Alaska shaped your perspective at work? If so, how?

Davidson:Although I was born in Bethel, I spent most of my childhood upriver in Aniak, a much smaller community of about 500 people. There I attended Head Start, taught by Nancy Morgan. I received almost all of my health care from Clara Morgan, a community health aide practitioner. Clara and Nancy were first cousins, and they practiced good population health surveillance before that was even a thing. They shaped healthy life habits in my early childhood that are still with me today. Growing up in a village provides incredibly valuable lessons. You have to work hard to make it.

Whether it’s 40 degrees above zero or 40 degrees below zero, you still have to get up, chop wood, pack water, feed the dog team, and get your chores done. You learn a good work ethic at a young age. You learn to get along with people because you simply cannot make it on your own. We rely on each other to make it through the winter. We also learn how to do things differently out of necessity. For example, the Dental Health Aide Therapy program, the United States’ first mid-level dental provider program, began in the Alaska Tribal Health System. We are now seeing cavity-free kids in communities with those programs for the first time since Western contact.

PHLN:You are also a member of the Yup’ik tribe. Do you think your experiences as a Yup’ik have helped you improve public health for Alaska Natives?

Davidson:I’m an enrolled member of the Orutsararmiut Tribal Council, based in Bethel. Yup’ik people believe that a person’s world view and perspective depend on the experiences he or she has had. As our experiences change, so do our perspectives. Yup’ik people are very accommodating and polite people. The most dangerous question you can ask a Yup’ik person is a version of “Am I right?” The answer will almost always be, “Of course you are right.” What we really mean is that you are correct from your perspective. For example, a provider who says, “You look like you’re feeling much better. Right?” A traditional Yup’ik will agree, because they are honoring your perspective and your experience. The appropriate question is, “How are you feeling today? Are you still experiencing ____?” Honoring people’s perspectives and underlying experiences helps us both truly understand each other and achieve common goals.

We are so family- and community-focused that effective care means reaching beyond the individual who happens to be in front of you. Their family experiences affect their perspectives. When we provide care as close to home as possible, in a culturally appropriate manner with family- and community-based strategies, we have much better outcomes.

PHLN:How does the Alaska Department of Health engage with Alaska Natives?

Davidson:The State of Alaska has made great strides in recent years in strengthening its relationships with Alaska Tribes, including establishing the Governor’s Tribal Advisory Council to gather input on critical policies in our state. Within Alaska’s Department of Health and Social Services, officials work closely with Alaska Tribes on issues such as adoption, foster care, public health, and substance misuse treatment.

Alaska Tribes are valuable partners in our shared mission to promote and protect the health and well-being of Alaskans. Partnering with Tribes to deliver critical services strengthens our culture and traditions across generations and makes good economic sense.

Volunteers building naloxone kits in Anchorage, Alaska

At a recent naloxone kit buildout event hosted by the Alaska Department of Health and Social Services in Anchorage, Alaska, volunteers built over 1,600 kits in about an hour.

PHLN:This month is Emergency Preparedness Month. In February, Alaska Governor Bill Walker declared the state’s opioid epidemic a public health disaster. How was this method of fighting the epidemic unique, compared to other states?

Davidson:Alaska is one of six states that have declared the opioid crisis a public health disaster or emergency, and each of these declarations is unique. Governor Walker’s declaration and accompanying administrative order achieved several objectives, including—

  • Immediately establishing the authority for a statewide standing medical order of naloxone, a drug that can be lifesaving in the case of an overdose
  • Setting up an incident command structure across state government to foster coordination, communication, and a unified response to our drug epidemic
  • Providing a clear statement that the opioid crisis is a priority issue in Alaska

PHLN: Alaska organized the public health disaster response effort using the incident command approach. What is the incident command approach and how did its application change the way the response was carried out?

Davidson:The incident command structure works as it does in any other public emergency or natural disaster. Governor Walker has directed all state agencies involved in the opioid crisis to meet regularly and review efforts to address the rising number of overdoses in Alaska. In this case, almost every state department has a seat at the table, illustrating the far-reaching impacts this crisis is having in our state. Commercial fishing, public transportation, law enforcement, and public health are just a few of the areas dealing with opioids in Alaska.

This structure has allowed for greater collaboration between departments and is leaving no stone unturned in our effort to raise public awareness. The incident command team recently organized a contest for elementary school students to name our state troopers’ newest drug dogs, and it provided age-appropriate lesson plans on the dangers of drug addiction. The group will continue to address important policy issues, funding opportunities, and outreach efforts to reduce opioid misuse in Alaska.

PHLN:Tell us about the three-tiered approach to addressing the epidemic.

Davidson:The three levels of prevention address the immediate, mid-term, and long-term goals to reduce substance misuse and addiction. This approach helps us develop policies and encourage practices that create a healthy environment where people are less likely to become addicted to begin with. These levels are—

  • Tertiary prevention: This is the most immediate level of response and prevents life-threatening adverse outcomes, such as drug overdose or the spread of disease. Examples of tertiary prevention include safe syringe and needle exchange programs and the distribution of naloxone.
  • Secondary prevention: This mid-term level of prevention addresses the screening and management of addiction before life-threatening events occur. This includes increasing the availability of skilled providers and removing the stigma around addiction and substance misuse.
  • Primary prevention: These are long-term goals that will have the most lasting impact to reduce substance misuse and addiction. Examples include reducing adverse childhood experiences, taxing legal substances such as alcohol, and using a robust prescription drug monitoring program.

PHLN:What do the rescue kits used in the tertiary tier contain?

Davidson:The rescue kits consist of two doses of naloxone, a drug that temporarily blocks or reverses the effects of opioids; instructions on how to administer naloxone; sanitary gloves; and a carrying case.

Our department also distributes drug disposal bags, which allow people to get rid of their unused prescription drugs in a safe and environmentally friendly way.

PHLN:Have the rescue kits been effective?

Davidson:To date, more than 6,000 kits and more than 22,000 drug disposal bags have been distributed to medical providers, public safety officers, partner organizations, and pharmacies across Alaska. The Project HOPE team, which distributes the kits and drug disposal bags, also provides training on naloxone administration. While the data is by no means a complete picture of the team’s reach, we know of more than three dozen instances where it appears a life has been saved through the use of Project HOPE kits.

In short, we believe the rescue kits and drug disposal bags have been effective in saving lives and raising awareness about the dangers of opioid use. Every life saved from a drug overdose brings hope for change and new opportunities in the future.

PHLN:How have the actions taken as part of the public health disaster declaration brought care to people who otherwise would not have it?

Davidson:Governor Walker’s disaster declaration allowed naloxone to be distributed to community partners outside of the state’s jurisdiction, connecting more Alaskans with this life-saving anti-overdose drug. We believe that the more people who have access to naloxone, the more successful our efforts to combat opioid addiction will be. This declaration has allowed local police and fire departments, nonprofit organizations, hospital employees, educators, tribal partners, and others to help us cast a wider net to connect with Alaskans struggling with addiction.

PHLN:What has Alaska done in the months since the declaration to continue combatting the epidemic?

Davidson:Significant public outreach and conversations about opioid misuse have been happening in communities throughout our state.

Additionally, two important laws were created to address our growing opioid epidemic. Senate Bill 91external icon extended the length of Governor Walker’s original disaster declaration to distribute naloxone statewide.

House Bill 159external icon established a voluntary non-opioid directive, which allows patients to turn down opioids while in medical care, and limits first-time opioid prescriptions to no more than a seven-day supply with limited exceptions. The law also strengthens reporting and education requirements for pharmacists and healthcare providers and requires that the state’s prescription drug database be updated daily instead of weekly.

There is no easy fix to any state’s opioid epidemic. Alaska will continue work and outreach by the state, local governments, health care providers, community organizations, and families to reduce the number of opioid deaths in our state once and for all. Fortunately, Alaskans are known for their strength and perseverance and for overcoming great challenges. With time and the right strategies, we will overcome this challenge, too.

PHLN:We read that you enjoy cooking and fishing and that you even own a smokehouse. Do you have a recipe you would recommend to our readers?

Davidson:I would recommend any recipe with wild Alaska salmon. We work hard in the summer putting up fish so we can enjoy it all winter long. It’s delicious, and it’s good for you!

Public Health Law News Quiz

The first reader to correctly answer the quiz question will be featured in a mini public health law profile in the October 2017 edition of the News. Email your entry to PHLawProgram@cdc.gov with “PHL Quiz” as the subject heading; entries without the heading will not be considered. Good luck!

Public Health Law News Quiz Question September 2017

Which state or country adopted Medicare-funded mental health assessments for pregnant women?

Winning Response to the August 2017 Public Health Law News Quiz

Question: Who are the speakers for PHLP’s upcoming webinar, Hot Topics at the Intersection of Public Health and Health Care, Part Iexternal icon, on September 12, 2017?

Answer: Greg Sunshine, Alison Parmar, Mary Massey, and Brianne Bostian

Court Opinions

Maryland: Defendants had duty to plaintiff because she was a child living in a lead-contaminated home because of defendant’s study, though she was not one of the children included in the study
Partlow v. Kennedy Krieger Instituteexternal icon
Court of Special Appeals of Maryland
Case Nos. 44 and 530, September Term, 2015
Filed 09/06/2017
Opinion by Judge Douglas R. M. Nazarian


Florida: Sufficient evidence existed that appellant had more than 100 cubic yards of “litter” on his own property to uphold felony littering, though appellate court questions “the State’s pursuit of a felony case through a jury trial against and elderly gentleman who horded junk on his overgrown yard”
Cosio v. Stateexternal icon
District Court of Appeal of Florida, Second District
Case No. 2D16-2439
Filed 09/06/2017
Opinion by Judge Matthew C. Lucas


Federal: Motion for summary judgement granted for misrepresentation case of alleged pharmacy overcharging, class certification granted
Corcoran v. CVS Healthexternal icon
United States District Court, Northern District of California
Case No. 15-cv-03504-YGR
Filed 09/05/2017
Opinion by District Judge Yvonne Gonzales Rogers

Quote of the Month

Saundra Brown, manager of the disaster-response unit at Lone Star Legal Aid

“We’re just scattered and working out of different offices. Some of us are working out of our homes. But we’ve got a disaster unfolding. The hotline is already up and running, and it’s being answered by various legal aids across the state.” – Saundra Brown, about organizations providing free legal assistance after Hurricane Harvey

[Editor’s note: This quote is from The Legal Crises to Follow in Hurricane Harvey’s Wakeexternal icon, published in The Atlantic,August 30, 2017, written by Vann R. Newkirk II.]

The Public Health Law Newsis 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 Newsis published by the Public Health Law Program in the Center for State, Tribal, Local, and Territorial Support.

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Public Health Law News (the 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, persons quoted therein, or persons interviewed for the News 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 websites 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 Public Health Law News should be cited as sources. Readers should contact the cited news sources for the full text of the articles.

Page last reviewed: September 21, 2017