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September 2018

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In This Edition

Announcements

Internships and Externships in Public Health Law. CDC’s Public Health Law Program (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 spring 2019 positions are due by October 1, 2018.


The Intersection of Public Health and Healthcare in the 21st Century: Hot Topics and Practice Tips, Part II. This webinar, cosponsored by PHLP and 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 preventing opioid overdose and deaths. 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).


Public Health Emergencies and the Law. The DC Bar Health Law Community, District of Columbia Department of Health, PHLP, and University of Pittsburgh Center for Public Health Practice will offer an all-day course about legal issues emerging from recent public health emergencies. This course will help prepare attorneys to properly counsel in such situations, especially in populations and environments that are disproportionately impacted. The course will take place October 16, 2018, from 9:00 am to 4:30 pm (EDT) at the DC Bar in Washington, DC. A live webinar will also be offered for remote attendance.


Law and Health Policy Report on Nutrition and Weight Status. The Healthy People 2020Law and Health Policy project has published its first report. It focuses on the role of health policy in increasing access to and intake of fruits and vegetables, and includes success stories of federal, state, tribal, and local laws that improve fruit and vegetable consumption. The Law and Health Policy project is creating a series of reports, webinars, and online resources highlighting evidence-based policy interventions that advance progress toward Healthy People 2020objectives.


Healthy People 2020 Law and Health Policy Webinar. The Healthy People 2020Law and Health Policy project will host a webinar, From Policy to Plate: Increasing Fruit and Vegetable Intake Through Accessibility, Affordability, and Demand, highlighting the impact of health laws and policies on increasing fruit and vegetable intake and making food accessible and affordable. This is the first in a series of webinars about the role of law and policy in helping to achieve Healthy People 2020 objectives. This free webinar will take place September 27, 2018, at 1:00 pm (EDT).


O’Neill Institute Colloquium 2018. The O’Neill Institute for National and Global Health Law is hosting its annual Colloquium on Wednesdays at 1:20 pm (EDT) from August 29 to November 28, 2018, at the Georgetown University Law Center in Washington, DC. This Colloquium aims to provide an engaging environment to discuss current topics in global health policy, administration, and law. This year, the Colloquium offers four modules: 1) health coverage and equity, 2) drug policy, 3) populism and policy change, and 4) sustaining multilateral approaches to health promotion.


Public Health Law Conference 2018. The 2018 Public Health Law Conference will be held in Phoenix, Arizona, October 4–6, 2018, with pre-conference workshops on October 3, 2018. Registration is open until October 4, 2018. Students can gain entrance to the Student Network Pre-Conference Workshop on October 3, 2018, for free!

Legal Tools

FERPA vs. HIPAA. PHLP is proud to announce a new section on its website comparing the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The section describes both laws and contains an easily downloaded graphic comparing them. This resource is a handy reference for healthcare providers, school personnel, and others interacting with FERPA and HIPAA.


Administrative Preparedness Legal Guidebook. The National Association of County and City Health Officials (NACCHO) has published a guide to help public health professionals advance their department’s administrative preparedness abilities. This guide works to promote collaborative efforts among various sectors of public health preparedness, including legal, human resources, procurement, and other staff.


NACCHO Advocacy Training Video. The National Association of County and City Health Officials (NACCHO) has created a YouTube video to help train public health professionals to communicate efficiently and effectively with law and policy makers.


Fact Sheet for Naloxone Access and Overdose Good Samaritan Law in Ohio. [PDF – 187KB] This fact sheet, provided by the Network for Public Health Law, describes Ohio’s opioid emergency-related laws and analyzes the state’s laws regarding access to naloxone, an overdose reversal drug.


Liability of Health Educators Certified to Train Community Members on the Use of Naloxone in Michigan. This article, provided by the Network for Public Health Law, details the legal liability that may fall on health educators. Health educators train individuals to use naloxone kits to reduce drug overdose deaths in their communities.

Top Stories

National: Local governments aren’t waiting for states to raise smoking age
PEW Trusts   (08/29/2018)   Jenni Bergal
[Editor’s note: See which states have raised to 21 the minimum legal sale age for tobacco. [PDF – 142KB]]

Story highlights:

In August, Massachusetts joined five other states in banning the sale of tobacco products to individuals below the age of 21. The movement to raise the legal smoking age to 21 is also growing at the local level. In 2018, 340 towns, cities, and counties, in 21 states, had raised the smoking age. This is a noticeable increase from 2016, when only about 200 localities in 14 states had raised the legal smoking age.

Supporters of this type of law argue that raising the minimum legal sale age for tobacco will improve the public’s health while lowering long-term medical costs, largely because most smokers begin smoking by the time they are age 19.

John Schachter, state communications director for the Campaign for Tobacco-Free Kids, notes that “by raising the age to 21, you’re cutting off the potential supply to those who are even younger.” He says that often, high school children will give tobacco products to their younger peers; raising the legal sale age would hinder this.

Conversely, challengers of this law worry that it could negatively impact retail sales, as well as local tax revenue.

Ryan Kearney, general counsel for the Retail Association of Massachusetts, says, “Any time you take a portion of the population out of the stores, not only are you losing direct sales of that product, but the indirect sales of other items that they might buy.”

According to the Centers for Disease Control and Prevention, teenage use of cigarettes has declined over the years, while more teens are using electronic cigarettes or “vaping.”

While the debate around the sale of tobacco products continues, some observers predict more laws of this type. Massachusetts state senator Jason Lewis comments, “I have no doubt this will continue to sweep across the country, because it makes so much sense. It’s good public health policy that will save lives and tens of billions of dollars in health care spending.”


California: California abolishes cash bail, aiming to treat rich and poor defendants equally
The Washington Post   (08/29/2018)   Scott Wilson

Story highlights:

In an attempt to break the pattern of poor defendants languishing behind bars while wealthy defendants walk free, California has eliminated monetary bail as a requirement of pretrial release. This law, signed by Governor Jerry Brown on August 28, is designed to eliminate the impact of financial factors on the ability to remain free prior to trial. The law is also aimed at reducing overcrowding in jails.

By fall 2019, judges in California will have to decide whether to release defendants or keep them in “preventive detention” until the given court date. Judges will use a new pretrial evaluation, which includes aspects such as prior offenses and flight risk, rather than the existing “bail schedule,” which is set by each county and assigns dollar amounts for release.

Governor Brown states that this action will promote the idea that “rich and poor alike are treated fairly.”

Civil rights groups and California’s Public Defenders Association argue that judges might opt for the preventive detention to ensure public safety, which may increase the number of individuals detained before trial. Robin Lipetzky, president of California’s Public Defenders Association, notes that, “with so much power in the hands of judges, the worry is that they will default to business as usual.”

The new law will go into effect on October 1, 2019.

[Editor’s note: Read California’s new bail law.]

Briefly Noted

National: FDA declares youth vaping an epidemic, announces investigation, new enforcement
USA Today   (09/12/2018)   Jayne O’Donnell
[Editor’s note: Read the FDA release, FDA takes new steps to address epidemic of youth e-cigarette use, including a historic action against more than 1,300 retailers and 5 major manufacturers for their roles perpetuating youth access.]


Connecticut: Public hearing scheduled for potential Access Health CT insurance companies rate increase
NBC Connecticut   (09/05/2018)   Jennifer Joas


Florida: Court rules first amendment could protect food sharing
Route Fifty   (08/26/2018)   Laura Maggi
[Editor’s note: Read the Eleventh Circuit Opinion in Fort Lauderdale Food Not Bombs et al. v. City of Fort Lauderdale [PDF – 105KB], Case No 16-16808, decided August 22, 2018.]


Iowa: Iowa law requires mental health training for educators
Iowa Public Radio   (08/31/2018)   Ben Kieffer, Lindsey Moon, Emile Woodbury, and Louisa Dewey


New Hampshire: Law enforcement professionals consider statewide mental health training program
The Conway Daily Sun   (08/29/2018)


South Carolina: Religious exemptions from vaccinations climbing among Midlands students
TheState.com   (09/06/2018)   Teddy Kulmala
[Editor’s note: Learn more about childhood vaccines from CDC’s National Center for Immunization and Respiratory Diseases. Read PHLP’s resources on vaccination laws.]


Texas: Texas Children’s Hospital fires nurse who posted about boy with measles
Houston Chronicle   (08/28/2018)   Samantha Ketterer and Todd Ackerman


Wyoming: Wyoming preps to take over nuclear permitting from feds
Route Fifty   (08/31/2018)   Michael Grass
[Editor’s note:
Learn more about Wyoming’s proposed rules and regulations. Read the Nuclear Regulatory Commission’s regulations.]


National: A new lawsuit threatens Obamacare. Here’s what’s at stake and what to expect in oral arguments.
The New York Times   (09/04/2018)   Abby Goodnough and Jan Hoffman


National: FDA pushes for development of non-opioid pain medications
The Washington Post   (08/29/2018)   Laurie McGinley


National: Kids should stay in rear-facing car seats as long as possible, new guidelines say
ABC News   (08/31/2018)   Nicole Pelletiere
[Editor’s note: Read more about the new guidelines from the American Academy of Pediatrics.]


National: Tattoo industry wins over millennials
The Wall Street Journal   (08/31/2018)   Jo Craven McGinty
[Editor’s note: Read the FDA’s Tattoos & Permanent Makeup: Guide to Resources.]


National: What the experts want us to know about public health
The New York Times   (09/4/2018)   Austin Frakt and Aaron E. Carroll

Global Public Health Law

Democratic Republic of Congo: Ebola attacked Congo again. But now Congo seems to be winning
The New York Times   (09/02/2018)   Donald G. McNeil Jr


England: Calorie count on menus plan will hit small restaurants—Treasury
BBC   (09/05/2018)


India: India gay sex ban is struck down. “Indefensible,” court says.
The New York Times   (09/06/2018)   Jeffrey Gettleman, Kai Schultz, and Suhasini Raj


India: A Harvard professor called coconut oil ‘pure poison.’ Now India wants a retraction.
The Washington Post   (09/05/2018)   Joanna Slater


United Kingdom: 4 million children in UK too poor to have healthy diet, report claims
CNN   (09/5/2018)   James Masters


Europe: Measles cases in Europe highlight the need for vaccination
The Network for Public Health Law   (08/29/2018)   Leila Barraza

Profile in Public Health Law: Jennifer Buzzell, MS, CDC’s National Center for Environmental Health

Photo: Jennifer Buzzell, MS

Title: Physical Scientist, Radiation Studies Section, Emergency Management, Radiation, and Chemical Branch, CDC’s National Center for Environmental Health

Education: BS, Chemistry; MS, Health Physics


Public Health Law News (PHLN):Please describe your career path and what drew you to public health and management of radiological emergencies in particular.

Buzzell:I never imagined working in public health or in the radiation field, for that matter. I loved science and thought a position in a laboratory would be right up my alley. After I earned my degree in chemistry from Kennesaw State University in suburban Atlanta, I applied for laboratory positions as well as middle and high school teaching positions. I ran into a former professor while picking up my transcripts on campus, and she mentioned Oak Ridge Institute for Science and Education (ORISE) fellowships. I applied and began my career here at CDC in the Inorganic Toxicology group within the Division of Laboratory Sciences of the National Center for Environmental Health in 2000. After 9/11, I was asked to build the radiation capabilities for the laboratory. Knowing I needed more knowledge of radiation, I pursued my masters in health physics. In 2008, I moved over to the Radiation Studies Branch (now Section) in a health physics capacity.

PHLN:What role does CDC, specifically the Emergency Management, Radiation, and Chemical Branch, play in responding to radiological emergencies?

Buzzell:In response to a radiological emergency, our branch will—

  • Provide subject matter expertise and technical assistance to our state and local public health partners
  • Represent CDC on the federal Advisory Team for Environment, Food, and Health, which provides technical advice and recommendations to the coordinating federal agency or affected jurisdictions (other agencies represented include EPA, FDA, and USDA)
  • Assess radiation doses of affected people
  • Staff the CDC Emergency Operations Center
  • Communicate health and safety messages to various audiences, including other federal agencies, state and local partners, the public, and the media

Additionally, other CDC centers, institutes, and offices will provide subject matter expertise to support the response. Examples of expert topic areas are vulnerable populations and communications.

PHLN:What is radiation, and what happens when someone is exposed to it?

Buzzell:Radiation is energy moving in the form of particles or waves. Familiar radiations are heat, light, radio waves, and microwaves. Radiation can be categorized into ionizing and nonionizing. Ionizing radiation is a very high-energy form of electromagnetic radiation and is the one we focus on in an emergency.

When significant amounts of radioactive material are dispersed, a person may become contaminated or exposed to it. A person can be externally contaminated, internally contaminated, and/or exposed to radioactive materials. External contaminationoccurs when radioactive material comes in contact with a person’s skin, hair, or clothing. A relatable example of external contamination is like mud or dirt in your hair and on your clothes.Internal contaminationoccurs when radioactive material is swallowed or breathed in, or it enters the body through an open wound. When a person is exposedto ionizing radiation, the energy penetrates the body. An x-ray is an example of exposure to ionizing radiation. The radiation penetrates your body, so you are exposed but not contaminated.

When someone is contaminated or exposed to ionizing radiation, DNA may be damaged. The DNA may be repaired by the body depending on the amount of radiation the individual was exposed to.

PHLN:How might individuals be exposed to radiation? Are some situations more likely than others?

Buzzell:We are all exposed to radiation daily from naturally occurring radioactivity in our environment. For more information about radiation in your life, please visit www.cdc.gov/nceh/radiation/sources.html#nature.

Individuals may also be exposed to radiation when there is a radiation emergency—for example, when an improvised nuclear device is detonated. This scenario would be similar to the bombs used during World War II in Japan. Also, individuals may be externally contaminated if radioactive materials fell on them. Generally, about 70%–90% of external contamination can be removed by taking off the outer layer of clothing. The remaining contamination may be removed by washing the skin that was not covered with clothes in warm soapy water.

PHLN:You recently co-authored a paper discussing legal language authorizing states to respond to radiological incidents. What did you find?

Buzzell:Yes, Gabriella Klaes, a former ORISE fellow with CDC’s Public Health Law Program, surveyed the legal language of the states, as well as three cities, to understand what authority, if any, the states and cities possessed to decontaminate or restrict the movement of individuals after a radiation emergency. The language fell into four categories: express, broad, narrow, and limited to biologics (see table below for descriptions and examples). Also, the category may change if an emergency is declared. For example, if a jurisdiction needed to decontaminate individuals presenting with radiological contamination and an emergency was not declared, only 15 percent of jurisdictions had express language addressing how to proceed. Almost half (49 percent) used broad provisions that were not expressly about radiation, four percent had a narrow definition of radiation, and 32 percent of jurisdictions limited their decontamination laws to biologics. Language differences may impact the legal and tactical approaches adjacent jurisdictions use when responding to a radiological incident.

CDC Categorical System Defining Radiation Laws Across States and Localities” summary=”A table describing categories defined by CDC and NACCHO for states and localities around radiation laws.
State/Local Category Description of Category
Express Language Language to restrict the movement of or decontaminate persons with radiological contamination. The provisions include terms such as “radiation” or “radiological agents.”


Example:

“The local health officer may issue, and first responders may execute, an order authorizing first responders to immediately isolate exposed individuals that may have been exposed to biological, chemical, toxic, or radiological agents that may spread to others.”i

Broad Language Language to restrict the movement of or decontaminate persons that is neither expressly linked to radiological agents nor limited to biologics. The provisions include language such as “threat to public health” or “hazards to health.”


Example:

“The department may quarantine or isolate individuals who have been exposed to hazardous materials that can cause serious illness or injury by transmission of the hazardous material to others.”ii

Narrow Language Language to restrict the movement of or decontaminate persons based on a particular condition or type of radiological release. The provisions include language referring only to terrorist attacks or incidents involving nuclear agents.


Example:

“If the State Health Director reasonably suspects that a public health threat may exist and that the threat may have been caused by a terrorist incident using nuclear, biological, or chemical agents, the State Health Director is authorized to order any of the following:

. . . Limit the freedom of movement or action of a person or animal that is contaminated with, or reasonably suspected of being contaminated with, a biological, chemical or nuclear agent that may be conveyed to other persons or animals.”iii

Limited to Biologic Language Language to restrict the movement of or decontaminate persons is limited to biologics through terms pertaining only to communicable and infectious diseases; there is no language regarding radiation.


Example:

“A health officer or the Department, upon receiving a report of a communicable disease, shall, by written order, establish such isolation or quarantine measures as medically and epidemiologically necessary to prevent or control the spread of the disease.”iv

PHLN:What kind of jurisdictions should include radiological emergency preparedness in their emergency response planning and authorities?

Buzzell:Unless a jurisdiction has a nuclear power plant, radiological emergencies might not be identified as a risk in jurisdictional risk assessments. In October 2016, an update to the Nuclear/Radiological Incident Annex of the federal interagency operational plan was released. It says that state and local officials retain primary responsibility for public monitoring, screening, and decontamination operations in a radiological emergency. For example—after Hurricane Katrina, residents were displaced to all 50 states, including Alaska and Hawaii. Planning assumptions indicate if an improvised nuclear device or radiological dispersal device were to cause an incident, public health systems should similarly expect displacement of a large population in need of public health services, including radiological screening and decontamination.

PHLN:What are the greatest legal barriers jurisdictions should consider when drafting preparedness plans for radiological emergencies?

Buzzell:I would speculate that the greatest barrier is in the multi-disciplinary nature of the preparedness for and response to a radiological emergency. The expertise of law enforcement, public health, radiation scientists, legal representatives, and other stakeholders is necessary in the planning stage. State and local jurisdictions should have a comprehensive conversation about their legal authorities with all stakeholders to support a successful response should a radiological incident occur.

PHLN:What are the next steps for your work?

Buzzell:My next steps are continue to inform partners of how to prepare for and respond to radiation emergencies, expand upon CDC’s communication efforts during all phases of a radiation emergency, and continue to address gaps in our agency preparedness plans.

PHLN:What would you be doing if you weren’t working in community health?

Buzzell:Hands down, I would be an astronaut. I love space exploration.

PHLN:Have you read any good books lately?

Buzzell:Unfortunately, no. Having a two year old lends itself to enjoying sleep and not books.

PHLN:Do you have any hobbies?

Buzzell:I love to bake, knit, and read. One day soon I’ll be getting back into these as well as finishing up my private pilot’s license.

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

Buzzell:Radiological emergencies are survivable. Get inside, stay inside, stay tuned. You can read more about protecting yourself and your loved ones here: What To Do During a Radiation Emergency.

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 October 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 September 2018

Which state’s hospital recently fired a nurse for posting on social media about a patient with measles?

Public Health Law NewsQuiz Question August 2018 Winner!

Photo: Wilma Johnston

Wilma Johnston

July question:

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

Winning answer: Rhode Island

Employment organization and job title: Maple Springs Laundry, Customer Relations Manager

A brief explanation of your job: Field complaints/issues from customers and relay them to appropriate management. Work with customers to ensure quality service.

Education: Some college.

Favorite section of the Public Health Law News:Top Stories.

Why are you interested in public health law? It’s interesting.

What is your favorite hobby? Reading.

Court Opinions

Delaware: Loss of recreational and aesthetic enjoyment of area is traceable to injury caused by state agencies’ removal of order for poultry farms to monitor water on site and in nearby streams for pollutants.
Food and Water Watch v. Delaware Department of Natural Resources and Environmental Control
Superior Court of Delaware
C.A. Case No. N17A-03-006 AML
Decided 08/24/2018
Opinion by Abigail M. LeGrow


Federal: Plaintiff’s discrimination claim against Ohio Medicaid program fails because the ADA does not impose on defendants a “standard of care” for whatever medical services they render, nor does it require defendants to “provide a certain level of benefits to individuals with disabilities.”
Carpenter-Barker ex rel. Carpenter v. Ohio Department of Medicaid
Court of Appeals, Sixth Circuit
Case No 17-4301
Filed 08/31/2018
Opinion by Judge Richard Allen Griffin

Quote of the Month

“Of the $1 trillion in federal spending, only 1 percent is on public health—an infrastructure that saves lives.” Karen DeSalvo, former New Orleans health commissioner

[Editor’s note: This quote is from What the Experts Want Us to Know About Public Health. The New York Times   (09/4/2018)   Austin Frakt and Aaron E. Carroll.]

About Public Health Law News

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 Office for State, Tribal, Local and Territorial Support.

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Subscribe to Public Health Law Newsor access past issues. To make comments or suggestions, send an email message to phlawprogram@cdc.gov.

Disclaimers

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 Newsare strictly their own and are in no way meant to represent the opinion or views of CDC or HHS. References to products, trade names, publications, news sources, and non-CDC Web sites are provided solely for informational purposes and do not imply endorsement by CDC or HHS. Legal cases are presented for educational purposes only, and are not meant to represent the current state of the law. The findings and conclusions reported in this document are those of the author(s) and do not necessarily represent the views of CDC or HHS. The Newsis in the public domain and may be freely forwarded and reproduced without permission. The original news sources and the Public Health Law Newsshould be cited as sources. Readers should contact the cited news sources for the full text of the articles.

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