January 2018

Announcements

Webinar: Executive Decision Making and Liability for Public Health Officials.external icon In this webinar, cosponsored by the Network for Public Health Law and the Partnership for Public Health Law, panelists will discuss the discretionary authority public health officials have in carrying out their duties, situations where use of discretion may be legally challenged, and factors that the law requires to show proof of an abuse of discretion. Panelists also will share a tool for effective executive decision making. The recent prosecutions of health officials for the Legionella outbreak in Flint, Michigan, will serve as an example. The webinar will take place January 25, 2018, 1:00–2:30 pm (EST).


CDC Externships in Public Health Law. PHLP offers externships in public health law, tribal public health, and administration and communications. The externships last 9 to 14 weeks, and consist of professional work experience at PHLP’s office in Atlanta, Georgia. With rolling start and completion dates during the academic year, unpaid externships must qualify for academic credit as authorized by law and public health schools. Applications for summer 2018 positions are due by January 31, 2018.


Community Benefit Insight.external icon The Robert Wood Johnson Foundation, in partnership with RTI International and the Public Health Institute, launched the Community Benefit Insight website. It’s a searchable, user-friendly database for looking up Schedule H reports on community benefit expenditures for all nonprofit hospitals over the period 2010–2014, with 2015 to be added shortly.

Legal Tools

Assessment of Evidence Supporting State Laws to Enhance Public Access Defibrillation. pdf icon[PDF – 838KB] Approximately 70%–90% of individuals with out-of-hospital cardiac arrest die before reaching the hospital. Public access defibrillation (PAD) initiatives that facilitate lay bystander response to cardiac arrest can increase survival rates. The National Center for Chronic Disease Prevention and Health Promotion recently released a policy evidence assessment to learn which evidence-based PAD policy interventions are most effective and can be useful in informing state planning.


NACCHO Policy Statement on Cannabis. pdf icon[PDF – 340KB]external icon The National Association of County and City Health Officials (NACCHO) has published a policy statement, “Medical and Recreational Cannabis and Cannabinoids,” to assist health departments considering approaches to medical and recreational cannabis within their communities. The policy statement was proposed by NACCHO’s Public Health Law Workgroup and approved by the NACCHO Board of Directors.

Top Stories

New York: Here’s what you should know about New York’s paid family leave programexternal icon
Refinery 29   (01/03/2018)   Natalie Gontcharova

Story Highlights

New York’s paid family leave program took effect on January 1, 2018. While the federal medical leave act offers unpaid leave, New York’s law offers partially paid leave to private employees. The law caps leave at 50 percent of the employee’s average weekly wage in 2018, and then increases to a cap of 55, 60, and 67 percent in 2019, 2020, and 2021 respectively. The leave may be taken all at once or in full-day increments over time within a 52-week period.

Under the new law, available to men and women, employees with a regular schedule of at least 20 hours per week are eligible for up to eight weeks of partially paid leave after 26 weeks of employment. Employees who do not work at least 20 hours per week are eligible after 175 days worked.

Only three other states have paid family leave laws: Californiaexternal icon, New Jersey pdf icon[PDF – 300KB]external icon, and Rhode Island pdf icon[PDF – 9KB]external icon.

Molly Williamson, a staff attorney at A Better Balance, an organization that supports the law and similar measures, says the law is crucial for work-life balance. “For low-income women, paid family leave means the end of the impossible choice between being there for your family when they need you the most—when a new child arrives or a health crisis looms—and the job that pays the bills,” says Williamson.

[Editor’s note: Learn more about New York’s paid family leave policyexternal icon.]

Briefly Noted

California: Santa Cruz county, city sue fossil-fuel companies over climate changeexternal icon
Santa Cruz Sentinel   (12/20/2017)   Nicholas Ibarra
[Editor’s note: Read the City and County of Santa Cruz, California, statement, City, County of Santa Cruz Go to Court to Hold Largest Fossil Fuel Corporations Accountable for Contributions to Climate Changeexternal icon.]


California: What’s the matter with drinking raw water?external icon
Healthline   (01/05/2018)   Gillian Mohney
[Editor’s note: Learn more about water contamination.]


Illinois: Cook County files lawsuit against opioid manufacturersexternal icon
Chicago Tribune   (12/27/2017)
[Editor’s note: Read the statement from the Cook County, Illinois, State’s Attorney, Cook County Files Complaints in Illinois Against Manufacturers of Prescription Opioid Painkillersexternal icon.]


Illinois: Man who sheltered homeless people in his basement stops after city orderexternal icon
The New York Times   (01/06/2018)   Maya Salam


Nebraska: Bill seeks to stop drone use to spy on people, harass cowsexternal icon
Lincoln Journal Star   (01/07/2018)   Grant Schulte
[Editor’s note: Read Nebraska’s Legislative Bill 693 pdf icon[PDF – 127KB]external icon.]


New Jersey: NJ teen dies, 41 others sickened by carbon monoxideexternal icon
Metro   (01/05/2018)   Nikki M. Mascali
[Editor’s note: Learn more about carbon monoxide poisoning and prevention.]


North Carolina: NC lawmakers might be changing their minds on spending more money to fight GenX pollutionexternal icon
The News and Observer   (01/10/2018)   Will Doran
[Editor’s note: Read the US Environmental Protection Agency’s release, Protecting Public Health and Addressing PFAS Chemicals pdf icon[PDF – 385KB]external icon.]


Ohio: America’s opioid crisis looks a lot like big tobacco spats of yesteryearexternal icon
The Street   (01/07/2018)   Bill Meagher


Oregon: Some Oregonians panic about new self-service gas law: “NO THANKS!”external icon
Chicago Tribune   (01/04/2018)   Kristine Phillips
[Editor’s note: Read Oregon’s House Bill 2482external icon.]


Wisconsin: Lead-water resolution that would make Milwaukee national leader is in limboexternal icon
On Milwaukee   (01/07/2018)   Jabril Faraj and Elliot Hughes
[Editor’s note: Read: the Substitute Resolution Relating to Health Department Recommendation for Avoiding Lead Exposureexternal icon.]


National: In a shift, Trump administration says houses of worship can apply for FEMA funding for Hurricane Harvey reliefexternal icon
The Washington Post   (01/04/2018)   Michelle Boorstein
[Editor’s note: Read the Federal Emergency Management Agency’s new Public Assistance Program and Policy Guide—FP-104-009-2/January 2018 pdf icon[PDF – 666KB]external icon.]


National: SAMHSA issues final rule updating substance abuse confidentiality regulationsexternal icon
Healthcare Informatics   (01/03/2018)   Heather Landi
[Editor’s note: Read the Substance Abuse and Mental Health Services Administration’s (SAMHSA’s) final rule, Confidentiality of Substance Use Disorder Patient Records pdf icon[PDF – 658KB]external icon.]


National: Spotlight on flu season—where hospitals are slammed hardestexternal icon
Healthcare Finance   (01/05/2018)   Beth Jones Sanborn
[Editor’s note: Learn more about influenza and state healthcare worker vaccination laws.]


National: They took on the food giants—and wonexternal icon
The New York Times   (01/01/2018)   Jane E. Brody
[Editor’s note: Learn more about the Center for Science in the Public Interestexternal icon.]


National: Trump administration ends registry for substance abuse, mental health programsexternal icon
The Hill   (01/10/2018)   Jessie Hellmann
[Editor’s note: Read Statement of Elinore F. McCance-Katz, MD, PhD, Assistant Secretary for Mental Health and Substance Use regarding the National Registry of Evidence-based Programs and Practices and SAMHSA’s new approach to implementation of evidence-based practices (EBPs)external icon.]


National: Trump administration targets recreational pot, placing thousands of marijuana businesses in California at riskexternal icon
The Los Angeles Times   (01/04/2018)   Evan Halper, Joseph Tafani, and Patrick McGreevy
[Editor’s note: Read the US Department of Justice’s Memo on Marijuana Enforcementexternal icon.]

Global Public Health Law

Australia: Australia to allow export of cannabis-based medicinesexternal icon
VOA   (01/07/2018)   Phil Mercer


Canada: Yukon government gives in to liquor industry on warning label experimentexternal icon
The New York Times   (01/06/2018)   Ian Austen


Portugal: Portuguese town encourages children to smoke at Epiphanyexternal icon
The Washington Post   (01/07/2018)   Helena Alves


Global: WHO approves a safe, inexpensive typhoid vaccineexternal icon
The New York Times   (01/03/2018)   Donald G. McNeil
[Editor’s note: Learn more about typhoid fever.]

Profile in Public Health Law: Scott Burris, JD
Photo: Scott Burris, JD

Title: Director, Temple University’s Center for Public Health Law Research; Professor of Law and Public Health, Temple University’s Beasley School of Law and College of Public Health

Education: JD, Yale Law School, BA, Washington University (St. Louis)


Public Health Law News (PHLN):Please describe your career path and what drew you to law.

Burris:I started my public health law career in January 1985 on a commuter train between New York City and New Haven. I was in my first year of law school, still trying to stay a little connected to a prior playwriting life in New York, when I happened to pick up a Wall Street Journal on the seat next to me and read an article about a lawsuit brought by a child with congenital herpes against his school, which had barred him as a public health threat. This was just a few weeks after the San Francisco Health Department had tried to shut down the bathhouses and bookstores to prevent the spread of HIV. I wondered what the governing law for these sorts of public health actions might be. The next day, I went to the library and found . . . not much since Jacobson v. Massexternal icon in 1905. Wendy Parmet’s piece on quarantine, AIDS and Quarantine: The Revival of an Archaic Doctrineexternal icon, might have been out, but I think it actually appeared later that year. In any case, I had my agenda: investigate the law of AIDS. I immediately wrote an article for the Yale Law and Policy Review about constitutional and disability law related to health measures, Fear Itself: AIDS, Herpes and Public Health Decisions pdf icon[PDF – 239KB]external icon. This being Yale, I was able to get a little money from the school to organize a national AIDS law conference that fall, and when none of the law reviews wanted to publish the proceedings, Professor Harlon Dalton and I had no trouble persuading Yale University Press to publish a book. Working with about a dozen fellow students and some great contributors, we were able to deliver AIDS and the Law: A Guide for the Publicexternal icon a few weeks before I graduated in 1987. After my clerkship, I started an AIDS and Civil Liberties Project at the American Civil Liberties Union (ACLU) of Pennsylvania, and in 1991 took my public health law work into teaching at Temple.

PHLN:What drew you from HIV/AIDS law into public health law, more broadly?

Burris:One of my big projects at the ACLU was lobbying for a state law protecting HIV confidentiality and the right to refuse testing. In the two years I worked to get this law passed, I spent a lot of time talking to legislators, and I realized I was routinely contextualizing HIV (and lowering the temperature) by telling stories from past epidemics. (Charles Rosenberg’s book The Cholera Years and Allan Brandt’s No Magic Bullet about syphilis were full of helpful insights and parallels.) I came to see that HIV was just another “normal” new disease, and that “AIDS law” was just an instance of public health law. Collaborations with other early public health law academics, such as Larry Gostin, Zita Lazzarini, and Wendy Parmet, cemented my identity.

PHLN:What is the Center for Public Health Law Research, and what do you do as its director?

Burris:We started as the National Program Office for the Public Health Law Research Program of the Robert Wood Johnson Foundation (RWJF). Our mission was to “make the case for laws that improve health,” by which we meant supporting more and better empirical research measuring the effect of laws and legal practices on health. We did this by funding research in a grants program, but also by developing methods and tools such as policy surveillance. When that program came to an end, we kept the name and adopted a new mission: using law more effectively in public health. This starts with training. Micah Berman, Matthew Penn, and Tara Ramanathan have worked with me to write a new textbook in public health law, which will be published later this year by Oxford. It is based on the transdisciplinary modelexternal icon of public health law that we developed with colleagues over the past few years, which emphasizes that almost everyone in public health “does” law at one time or another, and needs to know how law fits into their work as a health officer, researcher, sanitarian, community leader, or advocate. With others, we have developed and tested a framework of Five Essential Public Health Law Servicesexternal icon, which we want to use as both a planning and evaluation tool to improve the availability, coordination, and quality of legal services in public health. We continue to develop and teach research methods, particularly in policy surveillance. And we do our own research.

PHLN:What are the greatest challenges facing public health and public health law?

Burris:We face a harsh funding climate for both research and public health practice. We also face a long-term change in public health problems that challenge us to reimagine how we do our work. When public health takes on such behavior as eating and drug use, and even more when it delves into social drivers of population health, it goes way beyond the traditional jurisdiction of a health department. Research and evidence from epidemiology and social science are more important than ever, but even these come from a much wider group than self-identified health researchers. And making change requires political action, wide engagement across many sectors of government and economy, and the diffusion of health knowledge and perspectives throughout the society. RWJF calls it a “Culture of Health,” which captures the idea of fundamental change. What this means is that, as funding for traditional health departments declines, and the scope of the mission grows, we all have to think about how new modes of operation, and information technology, can help us be more effective. In that light, these are actually good times for law, because it is relatively cheap, works broadly in many domains, and helps change norms over time.

PHLN:What is legal epidemiology, and how is it being applied to public health issues?

Burris:Legal epidemiology is a term coined at CDC’s PHLP, and it names that big set of legal activities typically carried out by people who are not lawyers. It is the counterpart of what we call public health law practice, the public health law work of lawyers. Legal epi work includes evaluating the impact of laws on health, both intentional and incidental. It includes the application of law in health systems, and the evaluation of these infrastructural laws, and policy surveillance.

PHLN:How do you think legal epidemiology will be used in public health going forward?

Burris:The essence of the transdisciplinary model and legal epidemiology is to disrupt a century-old model of public health law as chiefly the domain of lawyers. In that model, lawyers are the actors and authorities and everyone else in public health law is a client or observer. That is an empirically false model, and it has had the effect of marginalizing law in our field. Most people in public health, and virtually all leaders and managers, are not lawyers. If they don’t own public health law, it will not be engaged to its best effect. We hope that the new model, integrated into training from the start of careers, will bring law into the core of public health practice.

PHLN:What are the five essential public health law services, and how might they be applied to improve public health?

Burris:This framework aims to make clear how the transdisciplinary model works in practice. It simply names the key services required to develop, test, and diffuse law reforms for health. It does three key things. First, it specifies the different kinds of legal work required and the roles of nonlawyers: 1) policy development, which typically draws on research, community knowledge, political acumen, and practice experience as well as legal expertise; 2) technical legal work to put policy ideas into legal form, the classic work of lawyers; 3) work to get the law enacted, which again takes us well beyond lawyers; 4) enforcement and implementation, where sanitarians and other nonlawyers typically do the hard work; and 5) evaluation and policy surveillance. Second, the framework highlights the importance of making sure all these services are available and coordinated in any given legal reform effort; when any element is missing, the chances that the measure will actually make a difference go way down (imagine a law that is not enforced). Finally, we hope the framework can be used like the Ten Essential Public Health Services to support evaluation research on the quality and availability of legal services.

PHLN:What projects are you excited about working on in 2018?

Burris:I am working with Gene Matthews, director of the southeastern region office of the Network for Public Health Law and former CDC General Counsel, and other colleagues on a project to strengthen advocacy capacity in public health. We have published a couple of articles about crafting richer messages, but recently we have dug deeper and tried to define what we are calling “the public health advantage,” which is developing as a mash-up of an asset-based appraisal (what makes public health so great as a discipline?) and The Seven Habits of Highly Effective People (how do we have to behave to earn the trust of the public?). Stay tuned on that.

PHLN:How can public health lawyers and practitioners learn more about using law and policy surveillance to improve public health outcomes?

Burris:The place to start is Lawatlas.orgexternal icon, where we have a full suite of on-demand training videos and slide sets. There you can also register for our monthly training webinar or access past ones. Thanks to the support of the Robert Wood Johnson Foundation, we are here to help anyone who wants to do policy surveillance.

Interested individuals can also apply to our 2018 Policy Surveillance Summer Instituteexternal icon, a two-day intensive program offering a comprehensive introduction and step-by-step, hands on training in policy research and surveillance. The 2018 Institute will take place June 7–8, 2018, in Philadelphia, Pennsylvania.

PHLN:Have you read any good books lately?

Burris:Leaving aside the mysteries, which are my vice . . . the two “public health law” books that have been big for me in the past year are Matthew Desmond’s Evicted and Richard Rothstein’s The Color of Law, both of which show how law has worked to pervasively CREATE and PERPETUATE unhealthy and inequitable housing conditions in this country. As for fiction, I’m reading Roddy Doyle’s The Guts, which picks up the story of the main character in The Commitments, now middle-aged and dealing with cancer.

PHLN:Do you have any hobbies?

Burris:I wish. But I do get time for yoga, swimming, biking, and hiking. And my work does let me travel, which I love.

PHLN:Do you have anything to add?

Burris:The best of times always look like the worst of times.

Public Health Law NewsQuiz

The first reader to correctly answer the quiz question will be featured in a mini public health law profile in the February 2018 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 January 2018

Which administration within the US Department of Health and Human Services released its final rule, Confidentiality of Substance Use Disorder Patient Records, in January 2018?

Public Health Law NewsQuiz Question December 2017 Winner!
Photo: Gregory Holder

Gregory Holder

Employment organization and job title: 

I am a public health advisor at CDC’s National Center for Chronic Disease Prevention and Health Promotion in the Division of Oral Health.

A brief explanation of your job:

Our division provides national leadership in dental public health, promoting interventions that prevent and control oral diseases and conditions, and providing technical assistance in infection control, community water fluoridation, and oral health surveillance.

I serve on the policy and communications team, which promotes strategies and interventions to improve oral health, conducts national partner outreach and engagement, assists in budget development, and responds to public inquiries. I oversee issues management for the division and analyze state and local legislation and other health policy to determine its impact on oral health. I also coordinate with other center subject matter experts to develop briefing documents for leadership and communicate findings and recommendations to the public. 

Education: 

Master of public health in analysis and management from East Carolina University in Greenville, North Carolina, and a bachelor’s degree in political science focusing in constitutional law from Piedmont College in Demorest, Georgia.

Favorite section of the News: 

Court opinions! I love getting weedsy with policy and law, and it’s very enlightening to dig into the actual written opinions to see how the arguments were received and evaluated by the court.

Why are you interested in public health law? 

I’ve always said that people go into public health to save the world, and many would (if they could) mandate sweeping societal changes to make it happen; public health law, however, provides the lines within which we have to color. How someone balances the rights of the individual vs. the public good is a personal decision, but public health law makes sure that the thumb doesn’t press too heavily on either side of the scale when we put it into practice. A firm understanding of public health law is important because it provides both the outer bounds and inner workings of every public health action, whether it is a local health department requiring treatment for an individual with tuberculosis, or the implementation of a nationwide intervention to promote smoke-free workplaces.

Most people don’t realize that the very beginnings of public health did not spring from the efforts of physicians; rather, it was purposeful agitation by engineers and lawyers to address societal and structural harms and inequities arising from classism, wealth, and social mores. The idea of bringing law to bear to solve social problems has firm roots—if not its actual origins—in protecting the public health.

What is your favorite hobby? 

I’m a history lover and enjoy a good book about it. I also play the mandolin and play with my dogs, but not necessarily at the same time.

Court Opinions

Montana: The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not expressly or impliedly preempt the property owners’ claim for restoration damages in this matter; denial of motion for summary judgement in lower court affirmed, but defendant may contest the merits of property owners’ restoration plans.
Atlantic Richfield Company v. Montanaexternal icon
Supreme Court of Montana
Case No. OP 16-0555
Decided 12/29/2017
Opinion by Justice James Jeremiah Shea


New York: Detox facility not subject to same standard of care as nursing home facility under state’s public health laws, and not held to same standard of negligence for patient who left facility and died.
Hairston v. Liberty Behavioral Mgmt Corp.external icon
Appellate Division of the Supreme Court of New York, First Department
Case No. 4843, 21039/11E
Filed 01/02/2018
Opinion of the Court


Federal: Plaintiff in contraceptive mandate case fails to overcome the presumption that the government will adequately represent the plaintiffs’ interests.
California v. Health and Human Servicesexternal icon
United States District Court for the Northern District of California
Case No. 17-cv-05783-HSG
Filed 12/29/2017
Opinion by District Judge Haywood S. Gilliam, Jr.


Federal: Petition for certiorari to the Supreme Court of the United States denied on January 8, 2018; federal law does not preempt findings of negligence and strict liability against tobacco companies in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006) (Engle III)external icon. Graham v. RJ Reynolds Tobacco, Co.external icon
United States Court of Appeals, Eleventh Circuit
Case No. 13-1490
Filed 05/18/2017
Opinion by Judge William Pryor

Quote of the Month

“There are a lot of different uses. We want to be able to utilize the technology, but do it without infringing on anyone’s civil rights.” — La Vista, Nebraska, Police Chief Bob Lausten on Nebraska’s proposed drone legislation.

Editor’s note: This quote is from Bill seeks to stop drone use to spy on people, harass cowsexternal icon, Lincoln Journal Star, 01/07/2018, by Grant Schulte

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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Disclaimers

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: January 18, 2018