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Contents - JLME - 2015 Volume 43: 1 - Supplemental Issue
Table of Contents
  1. Table of Contents
Letter From The Editor
  1. Letter From The Editor
Introduction
  1. Introduction
Symposium Articles
  1. Community Experiments in Public Health Law and Policy
  2. Domestic Legal Preparedness and Response to Ebola
  3. Lessons Learned from the Expansion of Naloxone Access in Massachusetts and North Carolina
  4. E-Cigarettes: Policy Options and Legal Issues Amidst Uncertainty
  5. Creating Legal Data for Public Health Monitoring and Evaluation: Delphi Standards for Policy Surveillance
  6. Lessons from the Residual Newborn Screening Dried Blood Sample Litigation
  7. Shared Use and Safe Routes to School: Managing the Fear of Liability
  8. Defining Commercial Speech in the Context of Food Marketing
  9. Navigating the Incoherence of Big Data Reform Proposals
  10. The Role of Law in Supporting Secondary Uses of Electronic Health Information
  11. The Health in All Policies (HiAP) Approach and the Law: Preliminary Lessons from California and Chicago
  12. Hospitals, Collaboration, and Community Health Improvement
  13. Tribal Water Rights: Exploring Dam Construction in Indian Country
  14. State Health Department Employees, Policy Advocacy, and Political Campaigns: Protections and Limits Under the Law
  15. Harnessing the Public Health Power of Model Codes to Increase Drinking Water Access in Schools and Childcare
  16. Adventures in Nannydom: Reclaiming Collective Action for the Public's Health
  17. Mental Health Emergency Detentions and Access to Firearms
  18. Human Health Impacts of Climate Change: Implications for the Practice and Law of Public Health
  19. Is Sharing De-identified Data Legal? The State of Public Health Confidentiality Laws and Their Interplay with Statistical Disclosure Limitation Techniques
  20. The Four Stages of Youth Sports TBI Policymaking: Engagement, Enactment, Research, and Reform
  21. Emergency Preparedness and Response for Disabled Individuals: Implications of Recent Litigation
  22. Bridging the Gap between Science and Law: The Example of Tobacco Regulatory Science
  23. From Beginning to End: The Importance of Evidence-Based Policymaking in Vaccination Mandates
  24. Legal Challenges to the International Deployment of Government Public Health and Medical Personnel during Public Health Emergencies: Impact on National and Global Health Security
Table of Contents
Table of Contents
Letter From the Editor
Letter From The Editor
ASLME - [PDF] (Free Download)
Last October, the American Society of Law, Medicine & Ethics and the Network for Public Health Law hosted the 2014 Public Health Law Conference: Intersection of Law, Policy and Prevention in Atlanta, Georgia. Generously funded by the Robert Wood Johnson Foundation, the conference brought together 550 health law scholars and practitioners from around the country to discuss current and emerging topics in public health law. The three-day conference presented an opportunity to discuss how law can be an effective tool in public health policy and prevention. This supplement issue brings together the knowledge and expertise shared at the conference into 25 articles that succinctly address one of the five conference tracks.
Introductions
Introduction
Donna E. Levin - [PDF] (Free Download)
In October 2014, the Network for Public Health Law and the American Society of Law, Medicine & Ethics (ASLME), with the generous support of the Robert Wood Johnson Foundation, co-sponsored the National Public Health Law Conference: Intersection of Law, Policy and Prevention in Atlanta, Georgia. This supplement issue of the Journal of Law, Medicine & Ethics is dedicated to some of the critical topics examined at this conference.
Symposium Articles
Community Experiments in Public Health Law and Policy
Angela K. McGowan, Gretchen G. Musicant, Sharonda R. Williams, and Virginia R. Niehaus - [PDF] (Free Download)
Community-level legal and policy innovations or "experiments" can be important levers to improve health. States and localities are empowered through the 10th Amendment of the United States Constitution to use their police powers to protect the health and welfare of the public. Many legal and policy tools are available, including: the power to tax and spend; regulation; mandated education or disclosure of information, modifying the environment - whether built or natural (e.g., zoning, clean water laws); and indirect regulation (e.g., court rulings, or deregulation). These legal and policy interventions can be targeted to specific needs at the community level and are often relatively low-cost, but high impact interventions. As every community is different, effective laws and policies will vary. This freedom allows states and localities to, as Justice Louis Brandeis argued, truly serve as "laboratories of democracy."
Domestic Legal Preparedness and Response to Ebola
James G. Hodge, Jr., Matthew S. Penn, Montrece Ransom, and Jane E. Jordan - [PDF] (Free Download)
While the global threat of Ebola Virus Disease (EVD) in 2014 was concentrated in several West African countries, its effects have been felt in many developed countries including the United States. Initial, select patients with EVD, largely among American health care workers (HCWs) volunteering in affected regions, were subsequently transported back to the states for isolation and treatment in high-level medical facilities. This included Emory University Hospital, which sits adjacent to the federal Centers for Disease Control and Prevention (CDC) in Atlanta, Georgia.
Lessons Learned from the Expansion of Naloxone Access in Massachusetts and North Carolina
Corey S. Davis, Alexander Y. Walley, and Colleen M. Bridger - [PDF] (Free Download)
States are rapidly modifying law and policy to increase access to the opioid antidote naloxone, and the provision of naloxone rescue kits (NRK) for use in the event of overdose is becoming increasingly common. As of late 2014 the majority of states had passed laws increasing naloxone access, and nearly as many have modified emergency responder scope of practice protocols to permit Emergency Medical Technicians (EMTs) and law enforcement officers to administer the medication. While the text of these laws is generally similar, their implementation varies among states.
E-Cigarettes: Policy Options and Legal Issues Amidst Uncertainty
Nancy Kaufman and Margaret Mahoney - [PDF] (Free Download)
E-cigarettes, sometimes referred to as ENDS (Electronic Nicotine Delivery Systems), include a broad range of products that deliver nicotine via heating and aerosolization of the drug. ENDS come in a variety of forms, but regardless of form generally consist of a solution containing humectant (e.g., propylene glycol or glycerol), flavorings, and usually nicotine (some solutions do not contain nicotine); a battery-powered coil that heats the solution into an aerosol (usually referred to as vapor) in an atomizing chamber; and a mouthpiece through which the user draws the vapor into the mouth and lungs. The devices may be closed systems containing prefilled cartridges, or open systems, where the user manually refills a 1-2 ml. tank with solution. What started as closed-system cigarette-shaped devices marketed as an adjunct for smoking cessation, has transitioned rapidly to literally thousands of hip and funky-designed open-system hookah pens, vape pens, and modifiable devices. For younger people, these forms are the "in" thing, while traditional cigarette-shaped devices are "out."
Creating Legal Data for Public Health Monitoring and Evaluation: Delphi Standards for Policy Surveillance
David Presley, Thomas Reinstein, Damika Webb-Barr, and Scott Burris - [PDF] (Free Download)
Surveillance in public health is the means by which people who are responsible for preventing or controlling threats to health get the timely, ongoing, and reliable information they need about the occurrence, antecedents, time course, geographic spread, consequences, and nature of these threats among the populations they serve. "Policy surveillance" is the ongoing, systematic collection, analysis, and dissemination of information about laws and other policies of health importance.
Lessons from the Residual Newborn Screening Dried Blood Sample Litigation
Michelle Huckaby Lewis - [PDF] (Free Download)
Most babies born each year in the U.S. undergo mandatory newborn screening to detect serious medical conditions that can cause devastating effects if treatment is not initiated prior to the onset of symptoms. Not all of the blood collected from newborns is used during routine newborn screening, and many states retain the residual dried blood samples (DBS). DBS have a broad range of potential uses, from program evaluation to public health and biomedical research unrelated to newborn screening. State laws vary regarding whether parental consent is required to use DBS for secondary research, but federal now requires parental consent for the use of DBS in federally funded research.
Shared Use and Safe Routes to School: Managing the Fear of Liability
Benjamin D. Winig, John O. Spengler, and Alexis M. Etow - [PDF] (Free Download)
This paper examines two policy initiatives that research shows can increase opportunities for physical activity and, in turn, improve health outcomes. These initiatives - shared use and Safe Routes to School (SRTS) - can and should be embraced by schools to improve student and community health. Fear of liability, however, has made many schools reluctant to support these efforts despite their proven benefits. This paper addresses school administrators' real and perceived liability concerns and identifies four strategies for managing the fear of liability and mitigating any potential liability exposure.
Defining Commercial Speech in the Context of Food Marketing
Jennifer L. Pomeranz and Sabrina Adler - [PDF] (Free Download)
Obesity is a public health problem in the United States. Experts have identified the regulation of food marketing as a policy strategy to address obesity and poor nutrition. However, the First Amendment can be a barrier to reducing exposure to problematic food marketing. In recent years, courts have become increasingly protective of speech, and particularly of "commercial speech," or advertising, which can make it more difficult to regulate certain marketing practices.
Navigating the Incoherence of Big Data Reform Proposals
Nicolas Terry - [PDF] (Free Download)
The health care industry will be a large customer of big data while predictive analytics already underlie important health care and public health initiatives. Yet big data are not benign. For example, data brokers, the businesses that buy, process, and sell "big data" are performing an end-run around health data protection by creating data "proxies" outside of HIPAA-protected space. From 2012-14 various branches of the federal government published five major reports on privacy. All five were in favor of increased regulation of data brokers. However, their recommendations for legislative or regulatory intervention were quite diverse. This essay describes the various proposals and offers a critical synthesis.
The Role of Law in Supporting Secondary Uses of Electronic Health Information
Tara Ramanathan, Cason Schmit, Akshara Menon, and Chanelle Fox - [PDF] (Free Download)
For decades, health information has been collected and shared for health care delivery and public health purposes. While the "primary use" of patient data for providing direct health care services is the cornerstone of health care practice, health departments rely on data sharing for research and analysis to support disease prevention and health promotion in the population. As the U.S. health system undergoes a digital revolution, health information that was previously captured in paper form now can be captured electronically. Electronic health information (EHI) has transformed the efficiency, capacity, and functions of the U.S. health system. For this reason, there is increased attention to the "secondary use" of electronic patient data for public health uses, including disease reporting and investigation, syndromic surveillance, and patient-specific or population-level communications about health conditions and their associated risk factors. Secondary uses may also encompass clinical research, licensure, and payment for services.
The Health in All Policies (HiAP) Approach and the Law: Preliminary Lessons from California and Chicago
Claudia Polsky, Kendall Stagg, Maxim Gakh, and Christine T. Bozlak - [PDF] (Free Download)
"Health in All Policies" (HiAP) is the latest manifestation of an ecological approach to public health enhancement - one that recognizes connections between health and other sectors, and that socioeconomic determinants of health are significant. HiAP is related to other holistic, prevention-oriented approaches to collective health, such as the use of Health Impact Assessments to evaluate the health externalities of pending government decisions. Yet HiAP is unique. It goes beyond evaluation of specific projects and policies, and embodies a distinct approach to cross-sectoral public health work.
Hospitals, Collaboration, and Community Health Improvement
Martha H. Somerville, Laura Seeff, Daniel Hale, and Daniel J. O'Brien - [PDF] (Free Download)
Medical care in the United States traditionally has focused on the treatment of disease rather than on its prevention. Heart disease, cancer, hypertension, diabetes, and other chronic diseases are the primary drivers of American health care costs; compared to other high-income countries, U.S. health indices are lowest and costs are highest.
Tribal Water Rights: Exploring Dam Construction in Indian Country
Jerilyn Church, Chinyere O. Ekechi, Aila Hoss, and Anika Jade Larson - [PDF] (Free Download)
The environment, particularly, land and water, play a powerful role in sustaining and supporting American Indian and Alaska Native communities in the United States. Not only is water essential to life and considered - by some Tribes - a sacred food in and of itself, but environmental water resources are necessary to maintain habitat for hunting and fishing. Many American Indian and Alaska Native communities incorporate locally caught traditional subsistence foods into their diets, and the loss of access to subsistence foods represents a risk factor for food security and nutrition status in indigenous populations. Negative health outcomes, including obesity, diabetes and cancer, have accompanied declines in traditional food use in indigenous communities throughout the United States.
State Health Department Employees, Policy Advocacy, and Political Campaigns: Protections and Limits Under the Law
Shannon Frattaroli, Keshia M. Pollack, Jessica L. Young, and Jon S. Vernick - [PDF] (Free Download)
State health departments are at the core of the United States (U.S.) public health infrastructure. Surveillance to monitor trends in disease and injury; the development, coordination, and delivery of services; and public education are some of the core functions health department employees oversee every day. As such, agencies and their employees are well positioned to inform policy decisions that affect the public's health. However, little is known about the role of health department staff - a sizeable proportion of the public health workforce - as advocates for public health policies, independent of their agency roles. Anecdotally, some health department employees with whom we have spoken expressed reluctance to engage in policy advocacy for fear of violating little known or understood agency or state rules.
Harnessing the Public Health Power of Model Codes to Increase Drinking Water Access in Schools and Childcare
Cara L. Wilking, Angie L. Cradock, and Steven L. Gortmaker - [PDF] (Free Download)
Drinking water is an important health behavior to support overall child health. Research indicates that children are consuming too little water and too many sugary drinks. Overconsumption of sugary drinks increases child risk for the epidemics of obesity and diet-related chronic diseases like type-II diabetes, stroke, and heart disease. Increasing access to appealing, low-cost drinking water in schools and childcare where children spend much of their time supports efforts to reduce sugary drink consumption. Drinking water infrastructure is key to water access in childcare and schools. In 2012-2013, almost one-third of permanent U.S. school buildings had plumbing systems in fair or poor condition, and almost 40 percent had major renovations or repairs planned. Basic plumbing standards for new construction and major renovations or repairs are contained in state and local plumbing codes, and many of these codes are derived from model codes established by private organizations. This article describes the model code process and intervention points where the public health community can work to improve plumbing standards in school buildings and childcare centers.
Adventures in Nannydom: Reclaiming Collective Action for the Public's Health
Lindsay F. Wiley, Wendy E. Parmet, and Peter D. Jacobson - [PDF] (Free Download)
Each of us has written about the importance of reframing the debate over public health paternalism. Our individual explorations of the many and varied paths forward from libertarian "nanny state" objections to the "new public health" have been intimately informed by collaboration. This article represents a summary of our current thinking - reflecting the ground gained through many fruitful exchanges and charting future collaborative efforts.
Mental Health Emergency Detentions and Access to Firearms
Jon S. Vernick, Emma E. McGinty, and Lainie Rutkow - [PDF] (Free Download)
Following the tragic shootings in Newtown (Connecticut), Aurora (Colorado), Isla Vista (California) and others, increased national attention has focused on the relationship between mental illness and gun violence. While some have called for enhanced regulation of firearm possession by persons with mental illness, others have argued that such actions would be ineffective and enhance stigma associated with mental illness while discouraging treatment seeking.
Human Health Impacts of Climate Change: Implications for the Practice and Law of Public Health
Jill Krueger, Paul Biedrzycki, and Sara Pollock Hoverter - [PDF] (Free Download)
Reducing greenhouse gas emissions is an urgent priority. While few would argue that action to mitigate the causes of climate change should be led by public health practitioners, public health has a critical role in adaptation efforts. Adaptation seeks to lessen human vulnerability to extreme weather and to increased variability in temperature and precipitation. Climate change as an emerging health issue provides a test case for new approaches to public health: approaches that emphasize both collaboration with other government and private entities and application of innovative legal strategies.
Is Sharing De-identified Data Legal? The State of Public Health Confidentiality Laws and Their Interplay with Statistical Disclosure Limitation Techniques
Victor Richardson, Sallie Milam, and Denise Chrysler - [PDF] (Free Download)
The diversity of state confidentiality laws governing public health data presents a significant challenge for public health initiatives. This challenge is further complicated by the array of confidentially laws that are relevant within a state as disclosure and usage standards vary depending upon data holder, type, and source. These laws often have not been updated to address modern confidentiality risks such as unlawful data linkage or breach, leaving many public health organizations without clear guidance in the contentious area of individual privacy. To address these challenges, public health organizations have increasingly turned to the science of de-identification, but whether de-identification adequately meets the many and varied state confidentiality legal requirements remains an unanswered question.
The Four Stages of Youth Sports TBI Policymaking: Engagement, Enactment, Research, and Reform
Hosea H. Harvey, Dionne L. Koller, and Kerri M. Lowrey - [PDF] (Free Download)
This article advances, for the first time, a framework for situating public health law interventions as occurring in a predictable four-stage process.1 Whether the intervention is related to mandatory seat-belt laws, HIV prevention through needle-exchanges, or distracted-driving laws, these public health law interventions have generally been characterized by the following four stages. First, a series of publicized incidents, observances, or outcomes generate significant media attention, and are framed as public health harms. Then, a few select states evaluate such harms and proactively seek testimony or evidence designed to support a law-based intervention. After this initial public engagement, states enact legal frameworks designed to minimize or reduce the harm, often in the absence of full information about the scope of harm or potential effectiveness of the intervention. In contrast, scholars have proposed that at these early stages, lawmaking should be evidence-based and "developed through a continuous process that uses the best available quantitative and qualitative evidence." Our experience evaluating youth sports traumatic brain injury (TBI) lawmaking suggests that, like other public health issues with sudden and intense media (and, therefore, constituent) attention, an evidence-based approach was lacking during these early stages.
Emergency Preparedness and Response for Disabled Individuals: Implications of Recent Litigation
Lainie Rutkow, Holly A. Taylor, and Lance Gable - [PDF] (Free Download)
In an emergency, challenges faced by disabled individuals may be exacerbated by ineffective communication, power outages, transportation shortcomings, and inhospitable shelters. During Hurricanes Katrina and Rita, Gulf Coast shelters did not routinely provide closed captioning or sign language interpreters; for individuals with auditory disabilities, understanding instructions issued in these shelters was extremely difficult. Individuals with mobility-related disabilities experienced challenges evacuating from their homes due to public transportation that could not accommodate wheelchairs. After the hurricanes, difficulties arose in identifying wheelchair-accessible trailers and in communicating with disabled trailer residents. Failing to anticipate these challenges intensifies the disadvantaged situation of those with disabilities during an emergency.
Bridging the Gap between Science and Law: The Example of Tobacco Regulatory Science
Micah L. Berman and Annice E. Kim - [PDF] (Free Download)
In the 20th century, public health was responsible for most of the 30-year increase in average life expectancy in the United States. Most of the significant advances in public health (e.g., vaccinations, water fluoridation) required the combined effort of scientists and attorneys. Scientists identified public health threats and the means of controlling them, but attorneys and policymakers helped convert those scientific discoveries into laws that could change the behavior of industries or individuals at a population level. In tobacco control, public health scientists made the groundbreaking discovery that smoking caused lung cancer, but attorneys and policymakers developed and implemented the policies and litigation strategies that helped reduce smoking rates by more than half over the past 50 years.
From Beginning to End: The Importance of Evidence-Based Policymaking in Vaccination Mandates
Daniel G. Orenstein and Y. Tony Yang - [PDF] (Free Download)
Used appropriately, reliance on science distinguishes public health from policymaking driven more by theory and opinion and enhances trust in public health interventions. Evidence-based vaccine policymaking aims to control communicable disease by urging decision makers to base policies on the best available evidence rather than politics or personal views. The results of this approach, such as smallpox eradication, have been dramatic. Historically, mandatory childhood vaccination has been perhaps the most successful evidence-based tool in combating many epidemics. Philosophically, vaccination mandates correspond to the legal system's dual role in codifying what society deems undesirable behavior (non-vaccination) and declaring beneficial social norms and values consistent with understandings of the social contract. Despite their effectiveness and philosophical grounding, vaccination mandates present serious legal and ethical questions. Public health policymakers have a continuing responsibility to rely on evidence not only as a basis for generating policy, but also for evaluating and improving elements of its legal design.
Legal Challenges to the International Deployment of Government Public Health and Medical Personnel during Public Health Emergencies: Impact on National and Global Health Security
Brent Davidson, Susan Sherman, Leila Barraza, and Maria Julia Marinissen - [PDF] (Free Download)
In an increasingly interconnected global community, severe disasters or disease outbreaks in one country or region may rapidly impact global health security. As seen during the responses to the earthquakes in Haiti and Japan, Typhoon Haiyan in the Philippines, and the current Ebola outbreak in West Africa, local response capacities can be rapidly overwhelmed and international assistance may be necessary to support the affected region to respond and recover and to protect other countries from the spread of disease. For example, President Obama stated on September 16, 2014, that "if the [Ebola] outbreak is not stopped now, we could be looking at hundreds of thousands of people infected, with profound political and economic and security implications for all of us... [T]his...is not just a threat to regional security - it's a potential threat to global security if these countries break down... And that's why...I directed my team to make this a national security priority."