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November 2018

Public Health Law News Banner

In This Edition

Announcements

CDC 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 consist of 9–14 weeks of professional work experience with PHLP 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 2019 positions are due by January 31, 2019.


Call for Papers by Public Health Reports.Public Health Reportsseeks submissions for a special supplement report on policy approaches that work to lower the incidence, mortality, and morbidity of HIV, viral hepatitis, sexually transmitted diseases, and tuberculosis. This supplement is intended to share recent articles on effective policy interventions. Abstract submissions are due by midnight (EST) January 4, 2019.


California Enacts New Hospital Discharge Process Requirements for Homeless Patients. On September 30, 2018, California Governor Jerry Brown signed a law that established new procedural requirements for hospitals discharging homeless patients. This law is intended to improve conditions for the homeless population of California. Phase 1, effective January 1, 2019, will require additional planning and the provision of certain services when a hospital discharges a homeless patient. Phase 2, effective July 1, 2019, will add further duties for hospitals, including documentation of homeless patients and their destinations.


NACCHO Annual 2019 Abstract Submissions Now Open! The National Association of County and City Health Officials (NACCHO) is accepting abstracts for the 2019 NACCHO Annual Conference, which will convene July 9–11, 2019, in Orlando, Florida. Compelling abstract submissions should highlight the conference theme, “Improving the Nation’s Health through Public and Private Partnerships,” and describe innovative, proven, or promising evidence-based practices, programs, services, systems, research, technologies, tools, principles, or policies. Submissions are due by 11:59 pm (EST) November 30, 2018.


APPE 28th Annual Conference. Registration is now open for the Association for Practical and Professional Ethics’ (APPE’s) 28th Annual Conference. This is an opportunity for individuals across all disciplines to learn about professional and practical ethics. The conference is February 28—March 3, 2019.

Legal Tools

US Government Accountability Office Report About the Opioid Crisis: Status of Public Health Emergency Authorities. Opioid misuse and related deaths are a serious, growing public health problem in the United States. More than 42,000 people died from opioid-involved overdoses in 2016. On October 26, 2017, the Acting Secretary of HHS declared the opioid crisis a public health emergency under Section 319 of the Public Health Service Act—the first time such a declaration has been made for opioids. The US Government Accountability Office was asked to review the decision to declare the public health emergency and the actions taken under the declaration. This report describes 1) the factors HHS indicated as affecting its decision to declare and renew the public health emergency, and 2) the public health emergency authorities the federal government has used to address the opioid crisis.


EPA’s Regulatory Agenda on TSCA—Enhancing Public Health and Chemical Safety. The National Law Review recently published a summary of the Environmental Protection Agency’s (EPA’s) proposed amendments to the Toxic Substances Control Act (TSCA).


Taking Opportunity Costs Seriously in Public Health Law.This article by Scott Burris, published in Public Health Reports,examines opportunity costs in public health law. It also looks at the role evaluation and legal epidemiology should play in monitoring and evaluating the laws that impact Americans’ health.


Legal and Non-Legal Strategies to Improve Childhood Lead Screening Rates in Illinois and Ohio. This brief, published by the Network for Public Health Law, examines existing lead screening requirements in Illinois and Ohio (including state laws and Medicaid requirements) and explores legal and non-legal strategies for improving lead screening rates in these states.


ASTHO Webinar: Tobacco Exposure and Impacts on Early Brain Development. The Association of State and Territorial Health Officials (ASTHO) has posted a webinar about the relationship between tobacco exposure and early brain development. This resource is geared toward state health departments, as state speakers share experiences in successfully establishing smoking cessation and reduction programs.

Top Stories

National: For the disabled, a doctor’s visit can be literally an obstacle course—and the laws can’t help
The Washington Post   (10/28/2018)   Rachel Bluth

Story highlights

Many obstacles still exist for the disabled population in the United States. Though laws require ramps and wider doors for wheelchair access, many medical offices across the nation lack scales and adjustable exam tables that accommodate wheelchairs.

The Affordable Care Act updated standards aimed at improving access to medical treatment for people with disabilities under the Americans With Disabilities Act (ADA). The Trump administration, however, withdrew these updates.

Harvard Medical School professor Lisa Iezzoni states, “I was in shock when I heard that [Attorney General Jeff] Sessions’ Justice Department had pulled back on their rulemaking.”

The ADA was created in 1990 to ban discrimination against individuals with disabilities. The law mandates that public places must be wheelchair accessible. This means that new buildings and commercial properties must offer ramps, handrails, elevators, and wide doorways. This law applies to fixed structures; it does not regulate “furnishings,” including equipment in doctors’ offices, such as tables, X-ray machines, and scales.

Michael Munger, president of the American Academy of Family Physicians, notes, “All of us want to take the absolute best care of our patients, we want to account for patient needs.”

Physicians might adjust their practices to accommodate disabled populations on the basis of their specialty, primary patient population, and financial ability. Sometimes, workarounds are used—physicians might send patients to hospitals that house wheelchair-accessible scales. In addition to financial restraints, available space is a barrier for many physician practices; exam rooms are often too small to accommodate large equipment.

Some medical systems are working toward solutions. For example, California generated a survey for Medicaid providers to determine accessibility barriers. The state also created regulations requiring accessible medical equipment and established a database of which providers have such equipment.

[Editor’s note: Learn more about California’s efforts to improve accessibility for patients with disabilities [PDF – 698KB].]


National: People are decorating for Halloween with dead bats. The CDC says that’s a scary idea.
The Washington Post   (10/31/2018)   Karin Brulliard

Story highlights

Halloween decorations are becoming increasingly scary as celebrants decorate with real dead bats—turning the animals into wall hangings, suspending them in lanterns, even wearing them as hair clips. According to the US Fish and Wildlife Service, inspectors at John F. Kennedy International Airport in New York have seized illegal shipments of dead bats once or twice month since the bat trend became popular in 2015.

Naimah Aziz, a Fish and Wildlife supervisory inspector, says, “I think the oddity trade is larger than we’ve realized. The only numbers that are reflected in our information system, that we know about, are the ones that are interdicted. That’s just a drop in the bucket . . . probably three percent of what’s actually coming into the United States.”

The uptick in shipments and the probability of additional shipments coming into the country unnoticed, could have serious public health implications. Federal officials warn that these shipments of bats could transmit a potentially fatal illness, including rabies and Ebola. To be legally shipped to the United States, the preserved bats must have been properly processed using high heat or chemical methods to ensure any pathogens have been killed.

Bat shipments are referred to CDC. The agency requires an additional permit because of the threat of infectious disease. According to Brian Amman, an ecologist with CDC’s Viral Special Pathogens Branch, viruses such as rabies and Ebola “can’t survive for very long outside of the host, but can survive longer in a dead animal. While the likelihood is low that something like Ebola would be transmitted via an imported bat carcass, even a small chance with a potentially deadly disease is too much.”

Shipments usually come from Indonesia via regular mail, which is also becoming a more popular method for smuggling live animals. The problem is not necessarily that bats are endangered; instead, boxes containing bats are usually mislabeled and lack proper permits.

[Editor’s note: Learn more about taking animals and animal products across international borders.]

Briefly Noted

California: In California, some doctors sell ‘medical exemptions’ for kids’ vaccinations
U.S. News   (10/29/2018)   Dennis Thompson
[Editor’s note: Learn more about state school and childcare vaccination laws.]


Colorado: Broomfield residents sue city to prioritize health and safety over oil and gas
Colorado Public Radio   (10/24/2018)   Grace Hood


Illinois: City tests confirm some Chicago homes with water meters have lead in tap water
Chicago Tribune   (11/02/2018)   John Byrne and Michael Hawthorne


Michigan: Michigan forms team to address funeral home problems
AP News   (11/01/2018)   Corey Williams


New Jersey: NJ’s gas pipes spring 10,000 leaks a year. They get more dangerous with age
NorthJersey.com   (11/01/2018)   James Nash


New York: More housing for New York’s homeless? Council will weigh question mayor ignored at his gym
The New York Times   (10/30/2018)   Jeffery C. Mays


Tennessee: Miscarrying at work: the physical toll of pregnancy discrimination
The New York Times   (10/21/2018)   Jessica Silver Greenberg and Natalie Kitroeff


National: Expert panel urges hepatitis A shots for homeless in U.S.
The Washington Post   (10/24/2018)   Lena H. Sun


National: FDA approves opioid painkiller 1,000 times stronger than morphine
USA Today   (11/05/2018)   Ashley May
[Editor’s note: Read the statement from FDA Commissioner Scott Gottlieb, MD, on agency’s approval of Dsuvia and the FDA’s future consideration of new opioids.]


National: In days of data galore, patients have trouble getting own medical records
Kaiser Health News   (10/25/2018)   Judith Graham

Profile in Public Health Law: Heidi Todacheene, Esq.

Photo: Heidi Todacheene, JD

Education: BA, University of New Mexico; JD, University of New Mexico School of Law

Tribal membership: Navajo Nation. My clans are Bilagáana (Anglo), born for Táchii’nii (Red-Running-Into-The-Water) and her maternal grandfathers are Bilagáana and her paternal grandfathers are Honágháahnii (One-walks-around clan).


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

Todacheene:Improving health care in Indian Country has always been a passion of mine so I naturally gravitated toward it throughout my career. Originally, I began my undergraduate degree as a chemistry major in preparation to become a dentist, since oral health care and preventive care services are scarce on reservations. However, my professional focus changed to Indian law and policy after studying at the University of Hawaii and seeing that Native people across the country could benefit from advocacy at the national level.

PHLN:Will you please describe your career path?

Todacheene:After enrolling at the University of New Mexico School of Law, I had the opportunity to clerk at the US Department of Justice, Office of Tribal Justice, as a Udall congressional intern. There, I worked on federal legislation, including the Tribal Law and Order Act, Violence Against Women Act, and sovereign immunity claims. From this experience, I knew that I would eventually return to DC to advocate on behalf of Tribes.

After law school, I worked at the New Mexico Indian Affairs Department in Santa Fe. There, I performed legal analysis on proposed legislation during the 2016 New Mexico legislative session. This included work on New Mexico’s implementation of provisions in the Indian Gaming Rights Act and Indian Child Welfare Act in New Mexico. From there, I worked at a civil litigation firm in Albuquerque before returning to Washington, DC, to work for the Navajo Nation.

PHLN:Will you describe your role and day-to-day responsibilities as government and legislative affairs associate for the Navajo Nation and assistant judge for the Southwest Intertribal Court of Appeals?

Todacheene:Navajo Nation is the only Tribe that currently has a working office in Washington, DC, dedicated to advocating for federal legislation and policy initiatives that directly impact our citizens. I work with elected Navajo Nation leaders to advise on initiatives that relate to health, education, and public safety. My daily work greatly varies between working with federal agencies, congressional leaders, Tribes, and national tribal organizations. Most of my work is centered on outlining political and policy ramifications to provide strategic recommendations on how the Navajo Nation addresses specific issues to benefit our citizens.

As a judge at the Southwest Intertribal Court of Appeals, I decide individual cases as part of a three-judge panel to help provide appellate resources to Tribes that lack financial means or governmental infrastructure to provide appellate services to their communities. I review both criminal and civil cases after the Tribe/Pueblo’s lower court has furnished a decision on the case’s merits, and one party in a case has appealed the decision for higher court review. I am extremely passionate about my work to develop tribal court infrastructure and it provides me with another avenue to stay connected to my community in the Southwest while I am gaining professional experience in DC.

PHLN:Do you consider yourself a public health law practitioner?

Todacheene:100%. I have worked on, and continue to work on, public health law through my professional experience as a lawyer and policy advocate. The health law issues that I work on directly impact not only Navajo Nation, but Indian Country as a whole. I find these issues are frequently exceedingly complex, but well worth the hard work to improve access to health care in rural communities across the United States. Adequate health care in any economically developed country should be a fundamental right that all people have equal access to—it is the cornerstone of a civilized society.  

PHLN:Why is working with tribal governments different from working with other US federal, state, or local governments?

Todacheene:Tribal governments are unique by way of their legal implementation and political affiliation to the United States government. Unlike any other group, Tribes have a government-to-government relationship with the federal government that is established through US Constitutional provisions, numerous treaties with individual tribal governments, federal statutes, U.S. Supreme Court case law, Presidential executive orders, and Title 25 of the US Code. Tribes and federally recognized tribal members have a unique relationship with the United States that is not based on race, but a political and legal relationship. Thus, Tribes are separate sovereigns with individual governments within the United States hence the “government-to-government” relationship.Specifically, Tribes are unique to work with in general since they cannot levy income or property taxes so you have to be creative in finding solutions for funding public roads and public safety.

PHLN:How is public health and healthcare delivery unique in Indian Country?

Todacheene:Health care in Indian Country came at a heavy cost to American Indians and Alaska Natives (AI/ANs), which isn’t fully addressed during most health policy discussions. Many people outside of Indian Country do not understand that heath care for AI/ANs developed during treaty negotiations between Tribes and the United States. These negotiations took place during the end of the nineteenth and first quarter of the twentieth century in the “civilization and assimilation” era.

In exchange for millions of acres of land and the genocide that Native Americans endured during the Long Walk and the Trail of Tears, the United States promised AI/ANs health care through the federal Indian trust responsibility. In the latter part of the nineteenth century, the federal government expanded healthcare services to Native Americans to address the spread of disease in overcrowded boarding schools.

As Indian health care continued to lag behind the rest of the country, Native American health services were transferred to the US Public Health Service (USPHS) in 1954. The following year the USPHS branched into the Indian Health Service (IHS) in an effort to fulfil the trust responsibility and provide services specifically in Indian Country as it exists today. The federal organization of these services vastly differs from any other healthcare services provided by the federal government due to the history and treaty negotiations between governments.

PHLN:How does the trust doctrine relate to Medicaid eligibility?

Todacheene:As federal policy, and because Congress acknowledges a special trust responsibility and legal obligations under the Indian Health Care Improvement Act, IHS provides healthcare services to 2.2 million AI/ANs throughout 36 states in America. However, AI/ANs continue to rank among one of the most vulnerable populations. Today, IHS is funded at approximately 40 percent of the health care funding need in Indian Country, and the average per capita spending for an IHS patient in FY 2017 was only $3,851 compared to the national average expenditure of $10,348 per person in CY 2016. [See Author’s note 1.] Congress amended the Social Security Act in 1976 and authorized IHS and tribal facilities to bill Medicaid for services provided to Medicaid-eligible AI/ANs. At the same time, Congress ensured that states would not have to bear any associated costs by reimbursing them 100 percent of the Federal Medical Assistance Percentage for services received through IHS and tribal facilities. Because the United States already had an obligation to pay for health services for AI/AN as IHS beneficiaries, it was appropriate for the federal government to pay the full costs of their health care as Medicaid beneficiaries. [See Author’s note 2.] Congress intended that Medicaid funding was to supplement IHS and not replace it, so Congress cannot factor in collections from Medicaid, Medicare, and the Children’s Health Insurance Program in determining IHS budget appropriations. [See Editor’s note 2.] Overall, IHS and tribal health facilities heavily rely on third-party reimbursement, which represents 35 to 50 percent of their respective operating budgets. Thus, any cuts to Medicaid would have a negative and colossal impact on the healthcare delivery systems in Indian Country.

PHLN:What are Medicaid work requirements, and how might they conflict with traditional American Indian and Alaska Native practices and cultures?

Todacheene:Unlike other Medicaid enrollees, AI/ANs can fall back on services at IHS facilities. As a result, the Medicaid incentives are drastically different for AI/ANs than any other population, and conditions of eligibility, such as work requirements, do not work in Indian Country. Instead, they lead to Medicaid disenrollment, which subsequently negatively impacts IHS services and disrupts the federal trust responsibility. [See Editor’s note 3.] Work requirements assume easy access to jobs and treatment centers that are unavailable on reservations due to infrastructure shortcomings.  Work requirements in Indian Country are nonsensical because they do not account for traditional jobs like artisan work which doesn’t produce a weekly paycheck for 8-5 work and is subject to seasonal and other shift changes. For example, the Navajo Nation suffers from a 42 percent unemployment rate, which drastically exceeds that of metropolitan areas located outside Indian Country. This creates an obvious, unresolvable issue for AI/ANs who must satisfy work requirements to obtain basic health care through Medicaid. Basic infrastructure and economic development initiatives must be developed to provide AI/ANs with the opportunities that others have to find employment easily off-reservation.

The Centers for Medicare and Medicaid Services has acknowledged an additional barrier for AI/ANs trying to satisfy Medicaid’s mandatory work requirements and community engagement activities. Many AI/ANs are employed as artisans, jewelers, or woodchoppers, or are in other areas of traditional work that are subject to seasonal and other shift changes. But Medicaid’s work-model provisions do not account for these types of employment; the work requirements are designed to account for jobs that track hourly employment and month-to-month income. The Navajo Nation has critical infrastructure needs, and work requirements unfairly penalize individual Tribal members for not having access to these services. Further, negotiations could be made with individual states to work with Tribes to monitor traditional employment opportunities, but states frequently lack these resources or may choose not to engage with tribal governments, which unfortunately is not uncommon practice in some locations.

In general, work requirements contradict the purpose of Medicaid and what Congress intended for AI/ANs, as seen through past congressional action and decades of analysis.

PHLN:How can individuals learn more about American Indian and Alaska Native public health?

Todacheene:To have a full understanding of health care in Indian Country and its current development and potential policy changes, it is essential to have a full understanding of the history and legal framework of Tribal governments, federal relations, and the origins of the federal healthcare system. Federal Indian policy, and subsequently Indian health care, has developed through several policy eras, creating the programs that we see today. Picking up an Indian law book and understanding this history is one aspect of comprehending the issue, but calling and visiting an IHS facility on a reservation and observing the lack of infrastructure and basic necessities is another. You need both the historical background and personal experience to fully comprehend the ramifications of health policy—or of any policy changes made in Indian Country.

PHLN:How have your experiences as a tribal member informed your legal practice and judicial activities?

Todacheene:Of course. As an enrolled member of the Navajo Nation, I understand the difficulties and shortcomings that people back home face on a daily basis. Understanding the lack of resources and historical trauma that is carried through generations of our families shapes the decisions that I make every day. I have been very fortunate to be placed in a position where I can help make a difference for Indian Country, so others don’t have to endure what generations before us have had to overcome. I find strength in our history and work to exemplify those qualities in my professional and personal life.

PHLN:How can individuals help support better public health in Indian Country?

Todacheene:Our facilities experience constant lack of funding and diminished clinician retention. Some of this is due to general misconceptions and the lack of understanding about our healthcare system. Any help to find solutions to these issues would be a great support to any Tribe. Even stopping into an IHS facility to learn about the services offered and meet staff would be the first step to finding a solution, plus it would help individuals understand the programs that are currently available to further develop. More needs to be done federally to incentivize physicians to practice on reservations and develop the sparse amenities.

PHLN:Do you have any hobbies?

Todacheene:I enjoy traveling and living in DC. I frequently go back to the Southwest to visit my family and stay involved in the community. I also work on art in my free time and have several pieces to complete.

Author’s notes:

  1. See Indian Health Service, Indian Health Care System Fact Sheet (July 2018).
  2. See the House Committee Report, H.R. Rep. No. 94-1026, pt. III, at 21 (1976).

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 December 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 NewsQuiz Question November 2018

Which country recently banned the sale of most firecrackers in an attempt to address heavy smog?

Public Health Law NewsQuiz Question October 2018 Winner!

Photo: Rebecca Haffajee

Rebecca Haffajee

October Question:

In which state did Kendra’s Law originate?

Winning Answer: New York

Employment organization and job title: Assistant Professor of Health Management and Policy, University of Michigan School of Public Health

A brief explanation of your job: I teach “Law & Public Health” to graduate students (typically public health, law, and medical students), among other courses. I also advise masters, doctoral, and law students in their graduate work. The bulk of my time is spent doing research—empirical evaluations and normative analyses of behavioral health laws, specifically in the opioid, cannabis, addiction, and mental health areas. I am actively engaged with and the policy analysis lead at the CDC-funded University of Michigan Injury Prevention Center. 

Education: Harvard University, Faculty of Arts & Sciences (PhD in Health Policy, 2016); Harvard Law School (JD, 2006); Harvard T.H. Chan School of Public Health (MPH, 2006)

Favorite section of the Public Health Law News:Legal Tools! I appreciate seeing up-to-date resources to map policies, analyze health laws, etc. These resources often save us from “reinventing the wheel.”

Why are you interested in public health law? I grew up in a family of healthcare practitioners, but I was always more drawn to health policy. Public health law excites me because it focuses on ways to leverage the law to improve health outcomes on a large, population scale. In my empirical research, I enjoy combining quantitative rigor with detailed law evaluation to generate concrete estimates of public health law impact. In my teaching and writing, I love to explore the tensions between government regulation of health and individual liberties.

What is your favorite hobby? Family adventures (hikes, bike rides) with my husband, 3-year-old daughter, and 6-year-old son.

Court Opinions

Hawaii: In a case concerning the application for a 30-meter telescope at the Mauna Kea Science Reserve, the court found that the Board of Land and Natural Resources correctly investigated and made specific findings of fact for the three questions that must be satisfied under the Hawaiian Constitution’s protections of native Hawaiian traditional and customary rights, pursuant to Public Access Shoreline Hawaii v. Hawai`i County Planning Commission. 79 Hawai`i 425, 450 n.43, 903 P.2d 1246, 1271 n.43 (1995).
In the Matter of Contested Case Hearing Re Conservation District Use Application (CUDA) HA-3568 for the Thirty Meter Telescope at the Mauna Kea Science Reserve, Ka’ohe Mauka, Hāmākua, Hawai’i, TMK (3)404015:009
Supreme Court of Hawaii
Case Nos. SCOT-17-0000777, SCOT-17-0000811, SCOT-0000812
Filed 10/30/2018
Opinion by Sabrina S. McKenna


Federal: Plaintiff failed to make a prima facie claim of racial discrimination because she failed to show that white nutritionists also working in the Fulton County, Georgia, Women, Infants, and Children Program were treated more favorably.
Bartell v. Fulton County, Georgia
United States Court of Appeals, Eleventh Circuit
Case No. 17-14335
Filed 10/26/2018
Opinion Per Curiam

Quote of the Month

“We have an affordable housing crisis that continues to ravage the city and we need to do better at getting housing for our most vulnerable families, the homeless and the very low income. The need to address the homelessness issue is so intense and dire that individuals are interrupting the mayor while he’s working out to ask him to do better.” Rafael Salamanca Jr., a councilman from the Bronx

[Editor’s note: This quote is from More housing for New York’s homeless? Council will weigh question mayor ignored at his gym. The New York Times   (10/30/2018)   Jeffery C. Mays.]

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 Center for State, Tribal, Local, and Territorial Support.

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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,or persons quoted therein, 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 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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