August 2018

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Letter from the Editor

We in the Public Health Law Program (PHLP) extend our sincere thanks to Meredith Bennett for her assistance researching and writing the June, July, and August 2018 editions of the Public Health Law News.Ms. Bennett was the summer 2018 public administration intern with PHLP. She is earning her master of public administration from the University of Georgia’s School of Public and International Affairs and is expected to graduate in spring 2019. She holds bachelor’s degrees in linguistics and psychology. She was an excellent addition to the Newsteam.

The Newsalso thanks the following law interns for researching cases for the June, July, and August editions of the News, respectively:

  • James Gregory Callahan IV, JD candidate, ‘19, St. Louis University School of Law
  • Elizabeth Burnett, JD candidate, ’19, Case Western Reserve University School of Law
  • Madison Hartman, JD candidate, ’19, Robert H. McKinney School of Law

We hold these interns in deepest regard and wish each of our interns every success in their future endeavors.

F. Abigail Ferrell, JD, MPA
Editor in Chief


APHA 2018—Creating the Healthiest Nation: Health Equity Nowexternal icon Registration is open for the American Public Health Association’s (APHA’s) annual meeting and expo. The meeting will take place November 10–14, 2018, in San Diego, California.

ASTHO’s 2018 Annual Meeting.external icon The Association of State and Territorial Health Officials (ASTHO) will host its annual meeting September 26–27, 2018, at the Westin Hotel in Alexandria, Virginia. Registrationexternal icon is open until September 2, 2018. There will be no on-site registration or late registration options.

Partnering to Improve Tribal Public Health. The CDC/ATSDR Tribal Advisory Committee (TAC) held its summer 2018 meeting July 23 and 25, 2018, at the Department of Health and Human Services (HHS) headquarters in Washington, DC. It included a collaborative discussion with the US Surgeon General, Vice Admiral Jerome Adams, about public health issues in Indian Country. Vice Admiral Adams said he was honored and excited to meet with tribal leaders and discuss his office’s priorities. On July 24, the CDC/ATSDR TAC joined tribal advisory groups from other HHS agencies for a National Town Hall on combatting opioids and substance abuse in tribal communities. The town hall provided elected tribal officials and tribally designated organizations an opportunity to engage with senior leaders across federal agencies. It also engaged more than 7,000 viewers, who were connected via Facebook and Twitter live streaming, in discussions about combatting opioids and substance abuse in tribal communities. In addition to the town hall, participants held an inaugural Joint TAC meeting and discussed collaboration across the federal government, ways to improve data on American Indian/Alaska Native health, and strategies for tackling tribal workforce needs. Visit CDC’s Tribal Support Unit website to learn more about the TAC and the TAC meeting.

The Intersection of Public Health and Health Care in the 21st Century: Hot Topics and Practice Tips, Part II.external icon This webinar, sponsored by the American Health Lawyers Association, will discuss legal trends in addressing the opioid crisis, and will explore how state, local, and tribal jurisdictions are enacting a wide variety of laws related to prevention of opioid overdose and deaths to respond to this issue. Speakers will also discuss current trends in opioid-related litigation, including recent suits filed against opioid manufacturers by dozens of state, tribal, and local governments. Panelists will highlight 2018 federal funding and other efforts aimed at reducing the supply of and demand for opioids—through prevention, treatment, and recovery—and the implications for the healthcare industry. This free webinar will take place Wednesday, September 26, from 2:00 to 3:30 pm (EDT).

Legal Tools

CDC Releases 2018 Model Aquatic Health Code. Government agencies and the aquatics sector can use the Model Aquatic Health Code (MAHC) to help reduce risk for outbreaks, drowning, and pool-chemical injuries at public pools and hot tubs/spas at apartment complexes, hotels, and waterparks. This third edition of the MAHC updates provisions related to disinfection and water quality, lifeguarding and bather supervision, and risk management and safety. It also covers emerging public health topics, such as Legionellacontamination and use of flotation tanks, as well continuing challenges, such as noise reduction in indoor swimming pools.

2018 ASTHO State and Territorial Legislative Tracking.external icon The Association of State and Territorial Health Officials (ASTHO) State Health Policy team tracks and analyzes legislation across the states to identify trends and emerging issues affecting public health and state health agencies. Real-time state legislative tracking of select issues is available on the ASTHO website.

Issue Brief: Health Justice for People Experiencing Homelessness—Confronting the U.S. Public Sanitation and Hygiene Crisis.external icon This issue brief, published by the Network for Public Health Law, examines the connection between inadequate access to public toilets, hand sinks, showers, and laundry facilities, and the disproportionate impact of hepatitis A infections on people experiencing homelessness. The issue brief also provides a menu of legal and policy solutions related to equitable access and health justice for people experiencing homelessness.

Top Stories

National: Under new rules, cheaper ‘short-term’ health care plans now last up to 3 yearsexternal icon
NPR   (08/01/2018)   Allison Kodjak

Story Highlights:

In August 2018, the US departments of Health and Human Services (HHS), Labor, and Treasury announced new rules governing short-term health insurance policies. These policies allow people who don’t have insurance through their jobs to purchase short-term plans.

Under the new rules, the policies, currently capped at three months, may last up to a year and may be renewed for up to three years. The rules could make it easier for people to replace coverage under the Affordable Care and Patient Protection Act (ACA) with plans that may be cheaper. But the policies are exempt from many of the ACA requirements. They do not have to cover individuals with preexisting conditions and are not required to cover as many medical services as policies under the ACA. Mental health and prescriptions are among the medical services not required to be covered.

James Parker, director of the Office of Health Reform at HHS, says the plans might be less expensive than other plans under the ACA, but that they shouldn’t be directly compared. “These policies are different from those offered on the exchange. We make no representation that it’s equivalent coverage,” Parker says.

Sabrina Corlette, a research professor at the Center on Health Insurance Reforms at Georgetown University’s Health Policy Institute, expresses concerns about protections for consumers. “If you start out healthy so that you get covered, but then later get a diagnosis, they can drop you at the end of the contract term,” says Corlette.

HHS estimates the short-term policies could cover as many as 1.6 million people in five years.

[Editor’s note: Read about Short Term Limited Duration Insurance CMS-9924-Pexternal icon and the 10 Essential Health Benefits required by the ACA.external icon]

Massachusetts: Defendants on probation can be jailed for drug relapse, court rulesexternal icon
The New York Times   (07/16/2018)   Jan Hoffman

Story highlights:

The Massachusetts Supreme Judicial Court has unanimously ruled that a judge may require defendants with a substance use disorder to abstain from substance use as a probationary condition and jail them if they relapse.

The defense argued that drug addiction is a brain disorder that hinders people’s capacity to fight their craving. The state prosecution argued that the threat of consequence or promise of reward could incentivize a person’s ability to overcome addiction.

The court’s ruling comes at a time when communities are grappling with the best ways to address drug addiction, drug-related crimes, and the efficacy of accountability models, such as drug courts.

Justice David A. Lowy authored the opinion, writing that judges “stand on the front lines of the opioid epidemic” and are “faced with difficult decisions that are especially unpalatable.”

Lisa Newman-Polk, attorney for the defendant, says the court “rubber-stamped the status quo, dysfunctional way in which our criminal justice system treats people suffering from addiction.”

A spokeswoman for the Massachusetts attorney general says, “We are pleased the Supreme Judicial Court today affirmed a court’s ability to take an individualized approach to probation that encourages recovery and rehabilitation to help probationers avoid further incarceration.”

Fiona Doherty, a clinical professor of law at Yale Law School who specializes in probation law, interprets the ruling as being strictly confined to the case of the defendant. “The impact of substance use disorder and a defendant’s ability to prevent relapse is still open. There is lots of room for lawyers and defendants to remount a challenge to the same drug-free condition. They can object at the time the condition is imposed and seek a full hearing on the science,” Doherty says.

[Editor’s note: Read Commonwealth vs. Julie A. Eldred pdf icon[PDF – 127KB]external icon, Massachusetts Supreme Judicial Court, July 16, 2017, and learn about drug courtsexternal icon.]

Briefly Noted

Arizona: Transgender woman says CVS pharmacist refused to fill hormone prescriptionexternal icon
The New York Times   (07/20/2018)   Julia Jacobs

California: White House approves Carr Fire disaster declaration, California governor saysexternal icon
CNN   (08/05/2018)   Susannah Cullinane and Sara Weisfeldt
[Editor’s note: Learn more about California Governor Edmund G. Brown, Jr.’s request for Presidential Major Disaster Declaration for Shasta Countyexternal icon and learn more about the US Federal Emergency Management Agency’s emergency responseexternal icon.]

Maryland: MD governor signs contract to beef up health care systemexternal icon
Delmarva Public Radio   (07/10/2018)   Don Rush  

Michigan: Bottled water distribution times change in Parchment PFAS responseexternal icon
Michigan Live   (07/31/2018)   Sasha Zidar
[Editor’s note: Learn more about per- and polyfluoroalkyl substances (PFAS).]

Rhode Island: Rhode Island law aims to prevent suicides at public collegesexternal icon
US News and World Report   (07/18/2018)   Jennifer McDermott
[Editor’s note: In 2016, suicide was the second leading cause of death pdf icon[PDF – 83KB], behind unintentional injury, for ages 10–34 years. Learn more about rising suicide rates and suicide prevention.]

Puerto Rico: Puerto Rican government acknowledges hurricane death toll of 1,427external icon
New York Times   (08/09/2018)   Frances Robles
[Editor’s note: Read the full preliminary draft of Transformation and Innovation in the Wake of Devastation: An Economic and Disaster Recovery Plan for Puerto Rico pdf icon[PDF – 13MB]external icon.]

National: Court orders ban on harmful pesticide, says EPA violated lawexternal icon
AP News   (08/10/2018)   Michael Biesecker
[Editor’s note: Read Lulac v. Andrew Wheeler pdf icon[PDF – 154KB]external icon, United States Court of Appeals for the Ninth Circuit, case no. 17-71636, filed August 9, 2018.]

National: Insurers and government are slow to cover expensive CAR-T cancer therapyexternal icon
NPR   (07/17/2018)   Michelle Andrews

National: Court rejects AHA’s attempt to block 340B hospital payment cutsexternal icon
RevCycle Intelligence   (07/19/2018)   Jacqueline LaPointe
[Editor’s note: Read more about the case American Hospital Association (AHA), et al., v. Azar pdf icon[PDF – 54KB]external icon.]

National: Investigation: patients’ drug options under Medicaid heavily influenced by drugmakersexternal icon
NPR   (07/18/2018)   Liz Essley Whyte, Joe Yerardi, Alison Kodjak

National: Shifting federal policies threaten health coverage for trans Americansexternal icon
NPR   (08/02/2018)   Emmarie Huetteman
[Editor’s note: Learn more about gender identity and public health.]

National: Smoking banned at, near public housingexternal icon
WPXI   (07/31/2018)   Natalie Dreier
[Editor’s note: Read more about the new rule pdf icon[PDF – 488KB]external icon and secondhand smoke.]

National: State attorneys general switch focus to disaster preparation and responseexternal icon
Route Fifty   (07/30/2018)   Dave Nyczepir
[Editor’s note: Learn about the National Association of Attorneys General’s new major disaster and mass incident preparedness initiativeexternal icon. Also, learn more about public health law emergency preparedness.]

Global Public Health Law
Profile in Public Health Law: Marice Ashe, JD, MPH
Photo: Marice Ashe, JD, MPH

Title: Founder and CEO of ChangeLab Solutionsexternal icon

Education: BA, University of Notre Dame; MPH and JD, University of California, Berkeley

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

Ashe:During the early years of the environmental justice movement, I worked as a liaison between a local health department and low-income residents living near petrochemical facilities. I was trained as a health educator and community organizer. I got lost in all of the legal jargon, and I was more confused than successful. That experience motivated me to go to law school so I could bring understanding of law to public health and social justice movements.

PHLN:What led to founding ChangeLab Solutions?

Ashe:In the early 1990s, California passed a tobacco tax that earmarked funds for prevention. The state health department wanted lawyers to provide technical assistance services to local health departments and community-based coalitions that were organizing to get rid of tobacco billboards. They reached out to Steve Sugarman at my alma mater, the University of California at Berkeley School of Law, for assistance. He reached out to the Public Health Institute, where I was working, and together we developed strong and productive relationships between scientists, advocates, and lawyers working together to change the world. It was beautiful!

PHLN:What does your typical day look like as the CEO of ChangeLab Solutions?

Ashe:I have the honor of working with one of the most brilliant and creative team of people ever. We think very big, our work is very complex, and we are constantly pushing our boundaries. It’s exhilarating—and really hard work!

PHLN:How does ChangeLab Solutions stand out in the field of public health law?

Ashe:We stand out in at least two different ways. First, we are multidisciplinary. Our team consists of attorneys, public health professionals, land use planners, transportation and housing specialists, economic development leaders, educators, architects, public administrators, researchers, and policy wonks of all sorts. We aim to reflect professional specialties that mirror those of local government agencies. Second, we draft model laws, policies, and related resources that address the social determinants of health and health equity. Our goal is to seed the field with examples of public policies that will move the needle on health outcomes, with a focus on increasing equity.

PHLN:What does a true cross-disciplinary team look like in public health law? Can you give an example of ChangeLab’s multidisciplinary team in action?

Ashe:We organize ourselves into “labs.” For example, we have a Sustainable Neighborhoods Lab that takes an integrated approach, providing legal and policy tools related to land use and transportation planning, housing stability, and access to parks, neighborhood safety, and community violence prevention strategies. Our staff specialists can work through tough issues in a cross-sectoral format so our resources are relevant to many different types of civic and community-based leaders.

PHLN:What are model laws and policies? How are these used to benefit communities?

Ashe:Model laws and policies are starting places for action. They capture the best available evidence, including that of the lived experience of community members. The models include all the legal “bells and whistles” that a city or state attorney would need for addressing a particular problem. The models also include comment boxes throughout the document, which offer guidance to health leaders and their attorneys on ways to tailor the model to their jurisdiction’s specific needs.

PHLN:As you will soon be leaving ChangeLab Solutions to work on other projects, what do you hope to see in the next phase for the organization?

Ashe:I am super excited about ChangeLab’s future as we are in the midst of what I call our “next generation of thinking.” We are now designing our model laws and policies—and all the allied support materials—using an “equity-first” lens. Over time, we expect this new work to have a profound effect on health equity and racial justice.

PHLN:How would you define equity in public health?

Ashe:There are several excellent definitions of equity available that emphasize justice and fairness, and call on us to create the economic and environmental conditions by which everyone can be healthy.  All the various definitions work, in my opinion. A key point is that the same language can’t be used in every place or context. Many variables affect how to talk about equity with different communities, so we have to be sensitive to using language that will help a particular community move forward in its understanding and action to redress inequities.

PHLN:How is ChangeLab Solutions applying equity principles to its public health law research and incorporating equity frameworks in its tools?

Ashe:One of our “labs” is the Justice and Equity Think Team (JETT). JETT has developed straightforward principles for our equity-first lens and has created a product audit guide to help us revamp and update historic materials using this new lens. We are drafting a blueprint for future action and working with legal academics and a national advisory board to guide our efforts.

PHLN:Can you give a specific example of this theoretical application and the outcomes you hope it will bring?

Ashe:We know that place-based epidemiologists—that is, epidemiologists who study data showing that your zip code is more important than your genetic code—have rarely if ever talked with civil rights scholars to learn how they can work together and influence each other. I hope public health data can reinvigorate civil rights law with new ideas about how to use the law to improve health.

PHLN:What spurred ChangeLab Solutions’ implementation of the equity-first model?

Ashe:Because our fundamental commitment is to use the tools of law and policy to improve community health, we recognize that we have to learn how to use those very tools to confront and dismantle both the historic and the current use of law and policy to institutionalize racism and concentrate and maintain poverty. We’ll never improve community health until such tools are in place and creating positive changes in communities across the nation.

PHLN:What advice would you give to others hoping to apply an equity-first lens to their organization and research?

Ashe:Embrace fearless learning. I say this to my staff all of the time. If we are satisfied with the status quo, we won’t have impact. We have to be willing to move into undefined and sometimes scary places to make real change.

PHLN:Have you read any good books lately?

Ashe:I am reading The Common Goodby Robert Reich. For fun, I recently read Circeby Madeline Miller.

PHLN:The founding and sustainment of ChangeLab Solutions is an outstanding accomplishment. Over the course of your career, is there a moment that stands out to you as a testament to that achievement?

Ashe:I love it when a light switch turns on in people’s brains about how to work with public policy. I can see it in people’s faces, the moment they feel the power of their advocacy and know they have good tools to guide their way. It’s a wonderful thing!

PHLN:Do you have any hobbies?

Ashe:I am learning yoga, and I like to grow vegetables. Lettuce, beans, and tomatoes in the summer. Chard and kale in the winter. Delicious!

PHLN: Is there anything you’d like to add?

Ashe:It has been an honor to be part of the renewed public health law movement. CDC played a major role in reinvigorating our field, and I’m very grateful for the last many years of leadership the agency has offered to those of us working in the field. Thank you very much!

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 September 2018 edition of the News.Email your entry to with “PHL Quiz” as the subject heading; entries without the heading will not be considered. Good luck!

Public Health Law NewsQuiz Question August 2018

Which state most recently passed legislation requiring public colleges and universities to establish a plan for promptly addressing students’ mental health needs?

Public Health Law NewsQuiz Question July 2018 Winner!
Photo: Mary Kozar

Mary Kozar

July Question: What tool is an online resource developed by the Public Health Learning Network (PHLN) to connect public health professionals with trainings?

Winning Quiz Answer: The Public Health Learning Navigator

Employment organization and job title: Carilion Home Care, Clinical Coordinator

A brief explanation of your job: Coordinator of home care and hospice

Education: DHSc candidate; MS, Nursing; RN

Favorite section of the Public Health Law News:I enjoy all the sections to keep up with current events. The Public Health Learning Navigator is a great tool.

Why are you interested in public health law? It is important for health science studies of health equity and environmental justice.

What is your favorite hobby? Health Science!

Court Opinions

Arizona: Plaintiff, Mohave County, Arizona, awarded injunctive relief; defendant was given due process, including an opportunity to defend himself regarding open-pit privy instillation instead of a septic system at a remote location used for commercial purposes.
Mohave County v. Nelsonexternal icon
Court of Appeals of Arizona, Division One
Case no. 1 CA-CV 17-0412
Filed 07/31/2018
Opinion by Judge Maria Elena Cruz

New York: New York City’s requirement that school children be vaccinated for influenza in addition to vaccinations required by the state is within the city’s scope of administrative rule-making authority.
Magdalena Garcia, & C., et al. v. New York City Dept. of Health and Mental Hygiene, et al.external icon
Court of Appeals of New York
Case No. 64
Decided 06/28/2018
Opinion by Judge Leslie E. Stein

Federal: US Department of Health and Human Services must consider and make appropriate adjustment for undervalued services rendered by a small group of cancer treatment and research hospitals in 2011, pursuant to changes made to the Medicare Outpatient Prospective Payment System by the ACA.
Moffitt Cancer Center and Research Institute Hospital, Inc. v. Azarexternal icon
Civil Action No. 16-2337
United States District Court, District of Columbia  
Decided 07/18/2018
Opinion by Judge Timothy J. Kelly

Quote of the Month

“Don’t keep quiet about it because if you do you’re letting them win. No one should have to go through this. No one should have to regret having a drink, talking to people at a fiesta, walking home alone or wearing a miniskirt.” Plaintiff of the la manadacase in Pamplona, Spain

[Editor’s note: This quote is from Spain to introduce ‘yes means yes’ sexual consent lawexternal icon. The Guardian   (07/18/2018)   Stephen Burgen.]

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: August 16, 2018