Public Health Law News
The Public Health Law Program (PHLP) would like to recognize and thank Kierra Ross for her assistance researching and writing the August, September, October, November, and December 2019 editions of Public Health Law News. She completed her master of public health at Emory University’s Rollins School of Public Health in December 2019.
PHLP also recognizes Mara Howard-Williams, MPH, for her assistance researching and briefing the judicial opinions for the August, September, October, November, and December 2019 editions of the News. She is expected to graduate in 2020 with her juris doctorate from the University of North Carolina at Chapel Hill School of Law.
It was an honor and a delight to work with Ms. Ross and Ms. Howard-Williams during their internships with PHLP. We wish them every success in their future endeavors.
F. Abigail Ferrell, JD, MPA
The Tribal Legal Preparedness Project.external icon Every community faces public health emergencies, so it is critical for all jurisdictions to understand how law can be used to enhance public health preparedness, and improve coordination and collaboration across jurisdictions. As sovereign entities, tribal governments have the authority to create their own laws and take steps to prepare for and respond to public health emergencies. This project was established to assist tribal nations interested in expanding their legal preparedness capacity.
Call for Abstracts: 2020 CSTE Annual Conference.external icon The Council of State and Territorial Epidemiologists (CSTE) will host their annual conference on June 28–July 2, 2020, in Seattle, Washington. Abstracts must be submitted by January 10 at 11:59 pm (EST). Abstract submission topics include chronic disease/maternal and child health/oral health, cross cutting, environmental health, infectious disease, injury, occupational health, substance use, and surveillance/informatics.
Call for Abstracts: NACCHO 360.external icon The National Association for County and City Health Officials (NACCHO) will host NACCHO 360 July 7–9, 2020, in Denver, Colorado. This innovative convening aims to break down silos by connecting the traditional NACCHO annual conference with PHIITS (Public Health Informatics, Information Technology, and Surveillance), a reimagined Public Health Informatics conference that goes beyond informatics to explore local health department information technology infrastructure and public health surveillance. Abstracts must be submitted by January 16 at 11:59 pm (EST).
Syringe Service Program Laws.external icon In collaboration with Temple University’s Center for Public Health Law Research, Trust for America’s Health (TFAH) developed a new dataset and interactive map that presents state-level statutes and regulations that impact syringe service programs (SSPs). It is part of TFAH’s Promoting Health and Cost Control in States initiative. The map identifies the method of authorization for SSPs, requirements for the establishment of SSPs, the types of services provided directly and by referral, drug paraphernalia possession laws, and whether an SSP is operating in the jurisdiction. All information can be accessed through the interactive map and downloadable raw data in Excel format. Direct links to each state’s statutes for each component of the law are included.
California: California’s working mothers get stronger support for workplace lactationexternal icon
Kaiser Health News (11/26/2019) Brian Krans
The American Academy of Pediatrics recommends children be exclusively breastfed for the first six months of their lives. Only 1 in 4 infants is exclusively breastfed by 6 months of age. Most mothers return to work before the six-month mark and stop breastfeeding early from a lack of ongoing support.
California is seeking to support mothers in the workplace who have trouble finding a suitable place to pump and store their breast milk. Governor Gavin Newsom signed a law in October that requires working mothers be given a more dignified space to pump and proper equipment for storing the milk. A dignified space is defined as a secure and private space close to the mother’s workstation with a chair and a table or shelf to hold their pumping equipment, as well as access to electricity. Running water and a refrigerator or a cooler for a mother’s milk must also be located near their workstations.
The new law also requires employers to notify employees of their right to pump breast milk at work, including the time and space provided for it—and it mandates that any violations of those rights be communicated to the California Labor Commissioner’s Office. The Affordable Care Act (ACA) already requires employers to give women time and space other than a bathroom to pump their breast milk but lacks such specifics as the California law. Some women have been harassed by employers about their pumping breaks, leading to some being fired or simply quitting as a result. One supporter states that the law is so important because it “provides ‘minimum standards’ for safe and clean lactation spaces and protects a woman from retaliation.”
Opponents mainly cite the burden the law will place on employers and claim it will expose them to “potential litigation traps.” The new law exempts businesses with fewer than 50 employees that can prove accommodating lactating mothers would create an undue hardship. Advocates also cite alternative design ideas for those businesses with limited resources. Despite opposition, since 2011, the percentage of women who reported receiving workplace breastfeeding support increased from just over half to two-thirds.
[Editor’s note: Read more about the lawexternal icon, which will go into effect January 1, 2020. Learn more about breastfeeding and access resources for lactation support for workplace health promotion.]
National: Ban on hotel shampoo bottles is latest effort to curb plastic wasteexternal icon
Pew Stateline (11/19/2019) Elaine S. Povich
Many communities have started to curb single-use plastic products, such as shopping bags, eating utensils, straws, and balloons. Now, states, localities, and some hotel chains are pursuing alternatives to travel-sized amenities (e.g., shampoo bottles and other toiletries) to curb single-use plastic products and reduce waste. California enacted a law earlier this year banning the mostly 1- to 2-ounce bottles. The law is set to take effect in 2023 and will prohibit containers of 12 ounces or fewer from being set out in hotels unless a customer asks for one. New York State is considering a similar measure, and local jurisdictions like Fulton County (Atlanta), Georgia, also are getting into the act.
While state and local governments are adopting legislative solutions, some hotel chains, including Marriott International, Hyatt Hotels, and the company that owns Holiday Inn, are replacing single-use bottles with large pump dispensers, even without legislation. This is not the first move by the hotel industry to become more environmentally friendly; hotels have increasingly posted signs urging customers to reuse their towels and opt out of changing sheets daily as a way to save water.
Opponents of the law argue that the change will devastate the personal product and plastic industry, that states are meddling in personal choices, and that product bans are not a long-term solution to the plastic waste issue. Supporters of the law recognize the marketing impact the little toiletries can have for the hotel industry but claim that the money saved by switching to dispensers can be used to bolster the guest experience in other ways. Despite their disagreement, both sides agree that in addition to the new legislation, additional work needs to be done to increase plastic recycling and reduce waste.
[Editor’s note: Read more about the California lawexternal icon.]
California: The California Consumer Privacy Act of 2018: Why the healthcare sector needs to pay attention (and not just in California)external icon
Sheppard Mullin (11/21/2019) Lynsey Mitchel, John Tilton, and Dhara Waghela
[Editor’s note: Read more about the lawexternal icon, which takes effect January 1, 2020.]
Kentucky: Kentucky schools can tap federal money to provide more school-based health services for students enrolled in Medicaidexternal icon
Kentucky Health News (11/11/2019) Al Cross
[Editor’s note: Read the Kentucky Cabinet for Health and Family Services’ press releasepdf icon[PDF-182KB]external icon.]
Massachusetts: Mass. Governor signs groundbreaking vaping flavor ban into lawexternal icon
The Hill (11/27/2019) Nathaniel Weixel
[Editor’s note: Read more about the lawexternal icon.]
Montana: Rural seasonal workers worry about Medicaid work requirementsexternal icon
Route Fifty (11/07/2019) Corin Cates-Carney, Kaiser Health News
[Editor’s note: Read more about Montana’s Medicaid Reform and Integrity Actexternal icon.]
Nebraska: Lawsuit filed over hepatitis A outbreak linked to berriesexternal icon
ABC News (11/27/2019) The Associated Press
Texas: Last-minute loophole could undermine Texas law against surprise medical billsexternal icon
Kaiser Health News (11/25/2019) Ashley Lopez, KUT
[Editor’s note: Read more about the lawexternal icon and the Texas Department of Insurance proposed rulesexternal icon for implementation.]
Texas: Texas will use state land for homeless campexternal icon
Route Fifty (11/10/2019) Emma Coleman
Tribal: Trump order creates task force on missing American Indiansexternal icon
AP News (11/26/2019)
[Editor’s note: Read the President’s Executive Orderexternal icon.]
National: Ensuring every child can learn, heal, and thriveexternal icon
Public Health Newswire (11/19/2019) Louise Dettman
National: Hundreds of thousands could lose food stamps under tighter work requirementsexternal icon
Pew Stateline (12/04/2019) Teresa Wiltz
[Editor’s note: Read the US Department of Agriculture’s press releaseexternal icon about the new finalized rule.]
National: Supreme Court confronts homeless crisis and whether there’s a right to sleep on the sidewalkexternal icon
LA Times (12/05/2019) David G. Savage
National: White House unveils finalized health care price transparency ruleexternal icon
Kaiser Health News (11/15/2019) Julie Appleby
[Editor’s note: Read about the ruleexternal icon.]
Egypt: The impact of Egypt’s mass hepatitis C screening on health care workersexternal icon
Devex (11/26/2019) Devex Editor
Mexico: Mexico judge approves recreational cocaine for two usersexternal icon
Samoa: Samoa charges anti-vaxxer with incitement as country battles deadly measles outbreakexternal icon
Global: Living near busy road stunts children’s lung growth, study saysexternal icon
The Guardian (11/25/2019) Sandra Laville
[Editor’s note: Read about the study, Personalising the Health Impacts of Air Pollutionexternal icon.]
Global: To tackle violence against women and girls, U.N. health agency pushes RESPECT programexternal icon
The Washington Post (11/30/2019) Erin Blakemore
[Editor’s note: Read moreexternal icon about the framework or learn how to prevent violence against women.]
Global: UN launches guidelines on disability inclusion in humanitarian action external icon
Devex (11/25/2019) Rebecca Root
[Editor’s note: Read more about the guidelinespdf icon[PDF-1.87MB]external icon.]
Title: Professor of Health Policy & Management, Indiana University Fairbanks School of Public Health; Professor of Public Health & Law, Indiana University McKinney School of Law, Indianapolis, Indiana; Associate Editor for Legal Epidemiology, Public Health Reports
Education: JD, MPH, Boston University; BA in History, Indiana University-Bloomington
Public Health Law News (PHLN): Please describe your career path.
Silverman: After graduating from the Boston University dual degree program, I served for a couple years as Special Counsel to the Massachusetts Board of Registration in Medicine. In 1998, I moved to Springfield, Illinois, to take a position as an assistant professor in the Department of Medical Humanities at Southern Illinois University (SIU) School of Medicine. I spent 15 years at the SIU Schools of Medicine and Law, including five years as a department chair. In 2013, I moved from SIU to Indiana University, which was just launching its new school of public health. I found the chance to return to my alma mater as a senior faculty member irresistible, helping to build and shape a new school and work on a flourishing health sciences campus on difficult problems affecting the health of Hoosiers and the nation.
PHLN: What drew you to the intersection of public health and law?
Silverman: My time in law school coincided with Clinton health reform and the dawn of healthcare’s managed care era. I had incredible health law mentors at Boston University, in particular Wendy Mariner, George Annas, and Fran Miller. They sparked my interest by bringing these events into the classroom, along with their own fascinating work. I liked that we were wrestling with knotty questions about public health, healthcare, law, policy, politics, and ethics. I love that these challenges demand responses that are interdisciplinary, informed by evidence, sensitive to history and the unique needs of particular communities, and must be feasible and practical.
PHLN: What is the Grand Challenges program? What work are you doing on its newest initiative, Responding to the Addictions Crisis?
Silverman: Indiana is one of the states hardest hit by the opioid epidemic, and the site of the United States’ first rural HIV outbreak. Indiana University launched a $50 million initiative to fund projects aimed at preventing and reducing addictions and their associated morbidity and mortality in our state. The project I lead is called the Indiana Addictions Law and Policy Surveillance Project (or Health IN Law Project), and it has been funded for four years. One major aim of our project is grounded in legal epidemiology. Most of this type of research looks at how laws vary across different states. Our project is to collect, analyze, and share information about the characteristics of local Indiana law, specifically county and major municipality ordinances, and to assess how differences in those laws across jurisdictions might have positive or negative effects on the health of people with addictions.
A second aim of our project is evaluating the employees and practices of courts related to Medication-Assisted Treatment (MAT). More than one-third of adults who get involved with the criminal justice system are people who have substance use disorders. We want to understand how decisions about MAT are made and influenced within these systems, especially in problem-solving courts.
PHLN: What type of information are you gathering in your travels to all 92 counties in Indiana?
Silverman: When we started this project, we knew that doing legal epidemiology research on ordinances from 92 counties, plus about 20 cities, would be labor intensive. But what we found was even more complicated than we had imagined. Nearly half of Indiana’s 92 counties do not have complete, up-to-date versions of their local laws available in electronic format, either in commercial databases or on their local government websites. So, to collect these primary data, our team is now working with and traveling to dozens of county government offices across rural Indiana to collect, scan, and digitize the local laws. So far, we have collaborated with about two dozen counties and collected their ordinances, and we have another 20 counties left to go. Our project manager, Lindsey Sanner, has been invaluable in this effort. Over the last few months, she has logged countless miles and already burned through one portable scanner.
PHLN: What will this information mean for the Grand Challenges program? What will it mean for the larger public health law community?
Silverman:It will mean several things. The local ordinance-related part of our project has become about enhancing democracy, as well as policy surveillance. We plan to eventually make our database of ordinances available to the public. This process also has shed more light on how under-resourced our local governments and public health agencies are, especially in rural communities. For the Grand Challenge effort more generally, our project has resulted in peer-reviewed publications in major substance use-focused journals and numerous posters and presentations at local, national, and international conferences. We continue to develop manuscripts for publication, we are creating issue briefs, maps, reports, and articles for the general public, and we are in the process of developing several grant proposals to further our research efforts. For the larger public health law community, we know we’re going to be able to build on the approaches developed by colleagues like Jennifer Ibrahim in her research in Nebraska and offer some new insights into methods for conducting local legal epidemiology research. Hopefully, we will advance the discussion about the effects of local law on health outcomes.
PHLN: What are some of the opportunities for this research?
Silverman: The mapping process will be valuable in and of itself. It will allow us to compare how different jurisdictions in the state are (or are not) using local law to address similar problems. Thanks in part to the Regenstrief Institute, Indiana has some of the most robust health informatics systems in the country. Once we have these ordinances catalogued and analyzed, we will then be able to work with our social science and health services research colleagues, as well as community and state collaborators like the state health departmentexternal icon, Family and Social Services Administrationexternal icon, and Management Performance Hubexternal icon, to merge our law databases with available health and other data to assess the variations in effects that local policies may have on the lives of vulnerable Hoosiers.
PHLN: What are the challenges to scanning all the local ordinances that impact public health? How do you work to overcome these challenges?
Silverman: First, there are the logistical and technical obstacles to overcome. Who in local government has copies of all the local ordinances? We have found that the most reliable collaborator in the counties have been the county auditor. So, when we reach out to a community, we need to get in touch with, get buy-in from, and schedule an appointment with that official. Indianapolis is in the middle of the state, and some of these counties are as far as 200 miles away, so you have the travel-related time and resources to consider. When we arrive at the site, the ordinances might be filed away in three-ring binders, stapled, and stowed in individual folders. To scan them, we need to take each ordinance out, carefully remove the staples, scan them, label the scanned file, re-staple the originals, put them back in their folders and then back into the binders—hopefully no worse for wear than when we received them. When we’re done, we leave the local officials with a jump-drive with all the electronic documents on them. We also have to face research-related challenges. One of the biggest issues we’ve run into is that, unlike state or federal laws, which are organized based on the law’s subject matter, local ordinances are filed chronologically. Therefore, we have made the decision that we need to scan all of the ordinances, and we will wait to assess them for relevance in our next project phase.
PHLN: What is the benefit of having the same information collected for every state?
Silverman: We know that laws, as they are created, interpreted, and implemented, significantly affect the ability of people to flourish. And we also know—from situations like the recent measles outbreaks, or smoking and vaping rules, or the regulation of electric scooters—that variations in the substance and implementation of local law can result in significant local variations in health outcomes. If we could systematically collect and understand the content and implementation of local law the way we do health interventions, we can improve our ability to promote evidence-informed and evidence-based policymaking at the local level, as well as at the state and federal levels.
PHLN: What is home rule?
Silverman: Home rule is the delegation of powers down to a more local level. In Indiana, it gives local municipalities more freedom to govern themselves.
PHLN: How has the concept of home rule impacted the project?
Silverman: It significantly complicates the relationship between state law and local law. We have to thoroughly understand and map out what rules apply statewide, which rules allow counties or cities to retain local authority, and when local rules are preempted by state law, etc.
PHLN: What have you learned from the data collection thus far?
Silverman: We have learned a great deal about local government and governance. We’re gaining greater expertise in running complex legal epidemiology projects. We expect to really dig into the data analysis in the new year and are excited to see what we uncover there.
PHLN: What other organizations collaborate with Indiana University’s Grand Challenges program, specifically under the Responding to the Addictions Crisis initiative?
Silverman: There are more than 30 projects currently funded under this initiative, ranging from basic science about pain and its treatment, to data science, to Extension for Community Healthcare Outcomes (ECHO) projects that use telemedicine to connect with and educate healthcare providers treating vulnerable populations in rural and underserved areas, to workforce development and translational research. Collaborators include state and local government officials and agencies, community social service agencies, healthcare providers and systems, and, of course, thousands of community members from across our state.
PHLN: What advice would you give others who might be interested in completing a similar project?
Silverman: This type of project needs significant support for infrastructure, an engaged, interdisciplinary team, and time. You also need to be very careful in how you collect and develop your data. In this area, CDC’s Public Health Law Program has been an invaluable partner to us, helping us train our team members on best practices for legal epidemiology research and answering questions as new issues arise.
PHLN: Where can others interested in your project learn more?
PHLN: Have you read any good books lately?
Silverman: I really enjoyed Madeline Miller’s Circe, Steve Martin’s Born Standing Up, and The Path to Power, book 1 of Robert Caro’s biography of Lyndon Johnson.
PHLN: Do you have any hobbies?
Silverman: I’m a piano player, and I love playing and listening to music. I enjoy traveling with my family and looking for and going to good and interesting places to eat wherever I am.
PHLN: Is there anything else you would like to add?
Silverman: Thank you for this opportunity. I’m thrilled to be a part of the public health law community and to have had a chance over the last two decades to participate in its growth and development.
The first reader to correctly answer the quiz question will be featured in a mini public health law profile in the January 2020 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!
Quiz Question December 2019
Which international agency launched the RESPECT program to spread awareness and to prevent violence against women and girls?
What are the acceptable levels of lead in India, Mexico, and Egypt, according to the countries’ government websites?
Winning Answer: India’s is 10 ppb; Mexico’s and Egypt’s are 5 ppb.
Employment organization and job title:
Morehouse School of Medicine, master of public health (MPH) student
A brief explanation of your job:
I am a first year MPH student, where I promote health equity and community engagement in rural, underserved communities.
BS in Psychology, Georgia State University; Pre-Med, Morehouse School of Medicine, MPH candidate
Favorite section of the Public Health Law News:
Court Opinions. I enjoy learning from different cases that occur around the United States. It gives me a unique perspective on the risks that individuals face every day and how court systems regulate public health law. It also sheds a light on the legal decision-making aspects in health. I also really enjoy the links attached to the court cases that are provided by the Court Opinions; they allow me to follow-up on the suits.
Why are you interested in public health law?
It is essential to understand ways to promote a healthy lifestyle that is free from disease. To achieve this, we must create ways to build intersectionality between health and governmental regulation. I am extremely passionate about promoting health equity through health law and regulation. Understanding public health policy, bioethics, and healthcare regulations are just a few legalities that make up the meaning of public health law.
What is your favorite hobby?
I really enjoy spending time with my German Shepherd named Delta, white-water rafting, and ziplining adventures.
Colorado: The Colorado Department of Public Health and the Environment (CDPHE) adopted a Referral Policy that detailed guidelines to determine which doctors providing medical marijuana recommendations would be referred to the medical board for investigation. After several doctors were referred under the policy, they challenged it under the state’s Administrative Procedures Act (APA) and the Open Meeting Laws (OML). The doctors alleged that the policy constituted a rule and, therefore, the procedure used to institute the rule was improper under the APA. They further alleged that under Colorado’s OML, the discussions relating to the creation and institution of the laws “involved two or more members” of a “state public body,” and as such should have been open to the public. The Colorado Supreme Court found that the CDPHE was not a public body, and thus did not violate the OML. The court further found that, because the Referral Policy provided guidance on how to implement an existing rule and conferred to the CDPHE no additional authority, the rule fell into an exception of the APA.
Doe v. Colorado Department of Public Health and Environmentexternal icon
Supreme Court of Colorado
Case No. 18SC621
Filed November 12, 2019
Opinion by Justice Richard L. Gabriel
Massachusetts: The Massachusetts Superior Court denied a preliminary injunction against the vaping ban issued by the governor and health department. The court examined the balance of harms to the plaintiffs, who are primarily vapor product retailers, and to the public. While the court acknowledges that there is no consensus among government agencies about how best to address the vapor-related lung illness, the “evidence indisputably demonstrates numerous vaping injuries and death.” The court found that the health department failed to use the proper process to enact its emergency regulation, but the proper remedy was to allow the department to come into compliance with the administrative procedures set forth in Massachusetts law, not to strike down the emergency regulations themselves. Since this order addresses only a preliminary injunction and not a ruling on the merits, further litigation is anticipated.
Vapor Technology Association v. Bakerexternal icon
Superior Court of Massachusetts – Suffolk
Case No. 2019-3102-D
Decided October 21, 2019
Opinion by Associate Justice Douglas H. Wilkins
Federal: A Tennessee federal court ruled in favor of a prison that delayed treating inmates with hepatitis C (HCV) with a new medication known to cure HCV. The prisoners sued the prison as a class and alleged that the significant delays in treatment amounted to cruel and unusual punishment. The court, acknowledging that there were many instances when inmates were denied the treatment they desperately needed, found that the prison had improved their screening and treatment mechanisms sufficiently to ensure that highest need patients received the treatment. The standard for cruel and unusual punishment is a high bar, and the court held that delay to treatment as not a severe enough denial of rights to amount to cruel and unusual punishment. The court noted that the prison should continue to improve screening and shorten the amount of time it takes to screen and treat patients.
Atkins v. Parker, F. Supp. 3d, (M.D. Tenn. 2019)external icon
United States District Court, M.D. Tennessee, Nashville Division
Decided September 30, 2019
Opinion by Chief District Judge Waverly D. Crenshaw, Jr.
Federal: The tenth circuit affirmed a lower court ruling that the county jail staff did not discriminate against a man with Alzheimer’s disease by refusing to allow his wife sit next to him and explain the paperwork he was required to sign to secure his release. Mr. Cropp was arrested after he became confused while talking to police and attempted to walk away. When his wife attempted to obtain his release, she was informed that Mr. Cropp needed to sign paperwork, which he did not understand. She requested to sit next to her husband to point out the different provisions and explain them, and the jail refused an “unobstructed physical contact visit,” as it went against the jail’s official policy. The lower court dismissed the discrimination complaint at summary judgment, and the appellate court affirmed, stating that “no reasonable jury could find the County intentionally discriminated against Mr. Cropp.” A lengthy dissent vigorously disagreed and found the majority’s view as against public policy in a time when Alzheimer’s disease is a prevalent condition.
Cropp v. Larimer County external icon
United States Court of Appeals, Tenth Circuit
Case No. 18-1262
Decided November 13, 2019
Majority Opinion by Moritz
Dissent by Lucero
“It’s very, very important that we, as a people, have a true identity, and when we lose our women and we lose our children, that goes with them.”—Fond du Lac Chairman Kevin DuPuis
[Editor’s note: This quote is from the article “Trump order creates task force on missing American Indiansexternal icon,” AP News, 11/26/2019.]
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.
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.