August 2024 | The Public Health Law News

Disclaimer

Announcements

Registration Open | Open Forum: Next Generation (NxGen)
The Open Forum: Next Generation (NxGen) is offered by the National Coordinating Center for Public Health Training (NCCPHT) and will be held in Chicago from September 18–20. Open Forum: NxGen aims to bridge the gap between seasoned professionals and the next generation by facilitating discussions, workshops, and mentorship opportunities. It envisions pairing those actively involved in applied equity, community-based organizations, and policy development with individuals eager to learn and engage in meaningful discussions. Learn more and register.

2023–2024 Legal Epidemiology Learning Cohort
Since 2015, ChangeLab Solutions has partnered with CDC’s Public Health Law Program to run yearlong learning cohorts in which transdisciplinary teams from health departments and organizations across the country engage in hands-on learning about legal epidemiology. The 2023-2024 cohort consisted of seven communities, who designed and implemented their own legal epidemiology projects. The teams included members from state and local health departments, nonprofit public health organizations, community-based organizations, and academic institutions. Across almost a decade of running these cohorts, ChangeLab Solutions has been able to identify opportunities and challenges, and compile this experience into a resource on lessons learned. Learn more about the 2023–2024 cohort and Lessons Learned.

Tribal Announcements

Resource | Upholding Tribal Sovereignty in Federal, State, and Local Emergency Vaccine Distribution Plans
Cross-jurisdictional collaboration efforts and emergency vaccine plans that are consistent with Tribal sovereignty are essential to public health emergency preparedness. Published in the Journal of Law, Medicine & Ethics, this article examines the widespread adoption of clearly written federal, state, and local vaccine plans that address fundamental assumptions in vaccine distribution to Tribal nations is imperative for future pandemic response. Learn more and access the resource.

Resource | Barriers and Opportunities for Tribal Access to Public Health Data to Advance Health Equity
This article from the Journal of Law, Medicine & Ethics highlights how public health authorities (PHAs), including Tribal nations, have the right and responsibility to protect and promote the health of their citizens. Although Tribal nations have the same need and legal authority to access public health data as any other PHA, significant legal challenges continue to impede Tribal data access. Learn more and access the resource.

Policy Analyst | National Indian Health Board
The policy analyst’s work will involve monitoring regulations and agency activity, policy, and budget analysis; Tribal Consultation; technical assistance to Tribal leaders and representatives, federal agency officials, and other policymakers through service on various federal Tribal Advisory Committees; and special projects related to health care, with a focus on those that impact AI/AN health. The ideal candidate will understand health care delivery, public health, behavioral health, the federal trust responsibility, and the legal, policy, and political frameworks impacting the Indian health care system. The policy analyst will also work with the rest of the Federal Relations team to develop strategies to advance other aspects of NIHB's Legislative and Policy Priorities. Learn more and apply.

Director of Government Affairs/Health Policy | Northwest Portland Area Indian Health Board
The director of government affairs/health policy (director) provides support to the executive director and 43 Tribes of Idaho, Oregon and Washington (Northwest Tribes) by serving as the primary resource for federal and state policy information; ensures that Northwest Tribes have the information and resources to advocate on health policy issues affecting their tribes and citizens; ensures that federal and state government representatives are informed about Northwest Tribes health policy priorities and programs; and oversees projects to increase the number of American Indians/Alaska Natives in healthcare and health policy. Learn more and apply.

Job Announcements

Law and Policy Analyst | Center for Public Health Law Research
The Center for Public Health Law Research at Temple University’s Beasley School of Law is seeking applications for a cohort of Law and Policy Analysts. Law and policy analysts currently report to the Center’s Research and Operations Director, while working closely with a dynamic team of lawyers and public policy professionals dedicated to using law to improve public health nationally and globally. Law and policy analysts will be primarily responsible for contributing to scientific legal mapping projects by researching and analyzing statutory and regulatory laws and policies across emerging public health topics. Learn more and apply.

Senior Attorney, Harm Reduction Legal Project | Network for Public Health Law
The Network for Public Health Law seeks a senior attorney to support the Network’s Harm Reduction Legal Project. Under the direction of the Project Director, the senior attorney will provide responsive legal technical assistance including research and assessment of laws and policies, consultation on best practices, and strategic guidance on harm reduction. Guidance will focus on individuals and organizations working to create, expand, and defend syringe access programs, naloxone distribution programs, overdose prevention sites, evidence-based treatment, and related initiatives in furtherance of the creation, continuation, and effective operation of harm reduction programs in the United States. Learn more and apply.

Legal Tools & Trainings

Resource | 2023 Public Health Law Conference: People. Policy. Progress.
This issue of The Journal of Law, Medicine and Ethics highlights work presented at the 2023 Public Health Law Conference. The collection of articles highlights flaws in policies but also proposes frameworks to resolve them. Practitioners provide insights that address different facets of large issues, further reflecting how many of these are intersecting issues rather than discrete problems. Topics include tribal access to public health data, substance use policies, emerging AI challenges, and the phenomenon of teen delay in driving licensure. Learn more and access the resource.

Resource | Tailored Resources for Health Departments
State, tribal, local, and territorial (STLT) health departments handle crucial responsibilities for protecting the public's health in emergency situations and over the longer term by working upstream to address social determinants of health (SDOH). STLT health departments fall along a broad continuum of readiness and capabilities to address SDOH and advance health equity through the tools of law and policy. In response to needs identified by public health practitioners, ChangeLab Solutions has created a suite of resources to strengthen health departments' capacity to use law and policy to address the fundamental drivers of health inequity. Learn more and access the resources.

Resource | State and Local Efforts to Declare Racism a Public Health Crisis – Northern Region Summary
This issue brief from the Network for Public Health Law is part of a series of analyses looking at resolutions declaring racism a public health crisis in each region of the country, summarizes resolutions in the northern US states of Idaho, Iowa, Minnesota, Montana, North Dakota, South Dakota, Wisconsin, and Wyoming. This analysis focuses primarily on resolutions passed by state and local governments, including city councils, county boards, city and county executives, school boards, and boards of health. Learn more and access the resource.

Resource | The National Legal Landscape of Flavored Tobacco Products
In commercial tobacco control policy, the legal landscape of flavored tobacco product regulation continues to evolve at the federal, state, and local levels. This 45-minute webinar recording from the Public Health Law Center provides an overview of the national legal landscape for regulating these products, including the FDA's proposed rules prohibiting menthol in cigarettes and all characterizing flavors in cigars, state and local sales prohibitions on flavored products around the country, how such policies have withstood legal challenges brought by the tobacco industry, and what these lawsuits mean for local jurisdictions interested in restricting flavored tobacco products. Learn more and view the webinar's recording.

Resource | Leveraging School Policies to Promote Student Health
School policy is one critical area among many possible points of intervention to promote student health and well-being. Evidence shows that creating a safe, supportive school environment can help students feel more connected at school and, as a result, less likely to experience poor mental health, sexual health risks, substance use, and violence. While the positive health benefits for students are clear, not all school professionals have the resources or training they need to help foster a safe and supportive school environment. ChangeLab Solutions has created policy guide for educators on the school policy process. Learn more and access the resource.

Resource | Developing Positive School Discipline Strategies
Children with attention-deficit/hyperactivity disorder (ADHD) and Tourette syndrome benefit when schools use positive rather than punitive disciplinary strategies. ChangeLab Solutions' new fact sheet Developing Positive Disciplinary Strategies to Support Children with ADHD and Tourette Syndrome: Considerations for School Administrators provides answers to administrators' essential questions about the benefits of positive discipline approaches. Using case studies and examples, it outlines steps for selecting positive discipline practices that are the right fit for your school. Learn more and access the resource.

Resource | HIPAA Final Rule to Support Reproductive Health Care Privacy
The U.S. Department of Health and Human Services Office for Civil Rights issued a Final Rule, effective June 25, 2024, to strengthen privacy protections under the Health Insurance Portability and Accountability Act (HIPAA) for protected health information (PHI) related to reproductive health care of an individual. This resource from the Network for Public Health Law highlights the changes outlined in the rule and the considerations for health departments. Learn more and access the resource.

Resource | The Great American Outdoors Act: A Tool to Advance Public Health
Passed in 2020, the Great American Outdoors Act serves as a legal and funding tool to assist with initiatives to provide more green space for residents in rural and urban communities. This resource from the Network for Public Health Law discusses how the Outdoors for All Act, which is currently awaiting Senate approval, would expand on this progress by increasing access to parks and green spaces in low-income communities and communities of color. Learn more and access the resource.

Resource | Merging Lanes: Bringing the Environmental Impacts of Driving to New Driver Education
Since its inception, graduated driver licensing has focused on minimizing the prevalence of motor vehicle crashes caused by new drivers, reducing related injuries and property damage. In this resource, the Network for Public Health Law explores how some states have made another important addition to their driver education program—the impact of vehicle emissions on air quality. Learn more and access the resource.

Top Story

Story Highlights:
Ohio: Ohio judge rules ban on health care for transgender minors can take effect, appeal expected
The Columbus Dispatch (08/06/2024) Erin Glynn and Jessie Balmert

On August 6, 2024, a Franklin County judged ruled that Ohio's ban on gender-affirming care for transgender minors can immediately take effect. Judge Michael Holbrook rescinded a previous restraining order on the law, which also bans transgender girls from participating in sports for youth assigned female at birth. Judge Holbrook ruled that the law does not violate the health care freedom amendment in Ohio's Constitution or a state law that requires legislation to be limited to a single subject. The American Civil Liberties Union (ACLU) of Ohio intends to appeal the decision.

The Ohio law prevents doctors from prescribing medical treatments, such as hormone therapy, puberty blockers, and gender-affirming surgeries (e.g., top surgery), to patients under 18. On behalf of two transgender girls and their families, the ACLU of Ohio sued the state, arguing the law violates their right under the Ohio Constitution to choose their health care. The ACLU of Ohio further articulated that puberty blockers and hormone therapy are effective and safe approaches for treating gender dysphoria, or the distress felt by a person when their gender identity does not align with the sex they were assigned at birth.

The Ohio Attorney General's Office argued that gender dysphoria should only be addressed through mental health interventions, not hormone therapy or surgery. In his order, Judge Holbrook presented an additional argument regarding the balance between parental rights and the interest of the state. Holbrook argues that the ban reasonably limits parental rights to make decisions regarding their children's medical care, which is consistent with Ohio's "deeply rooted legitimate interest" in regulating the medical field.

In the decision's conclusion, Judge Holbrook wrote that the law not does not only violate Ohio's aforementioned health care freedom amendment or single subject rule, but also the Equal Protection Clause and Due Course of Law Clause. Attorney General Dave Yost supported the decision, citing protecting children from "irreversible medical and surgical decisions" with his spokesperson adding that the law "simply says 'not now' while the child is still growing." On the plaintiffs' side, the legal director at the ACLU of Ohio, Freda Levenson, finds the decision to be a devastating and genuine setback that jeopardizes critical, life-saving care for transgender youth throughout Ohio.

[Editor's note: Learn more about the symptoms and diagnosis of gender dysphoria.]

Briefly Noted

National: Congress Accidentally Legalized Weed Six Years Ago
The Atlantic (07/15/2024) Mike Riggs
[Editor's note: Learn more about cannabis facts and statistics.]

National: A study found toxic metals in popular tampon brands. Here's what experts advise
NPR (07/11/2024) Rachel Treisman
[Editor's note: Learn more about menstrual health and hygiene.]

Guam: Public Health: New law helps with Guam's Medicaid modernization
Pacific Daily News (07/23/2024)
[Editor's note: Learn more about Medicaid and CHIP in Guam.]

Florida: Jacksonville Mayor unveils plan to fight homelessness and comply with new Florida law
News4Jax (07/22/2024) Ashley Harding
[Editor's note: Learn more about the history of homelessness, data, and trends.]

Hawaii: Judge's ruling temporarily allows for unlicensed Native Hawaiian midwifery
Associated Press (07/25/2024) Jennifer Sinco Kelleher
[Editor's note: Learn more about health disparities facing Native Hawaiians and other Pacific Islanders.]

Illinois: New Illinois law requires crisis standards of care plan for future public health emergencies
WAND (07/24/2024) Mike Miletich
[Editor's note: Learn more about public health emergency law.]

Indiana: Anti-abortion group argues that Indiana health department's abortion records must be public
Indiana Capital Chronicle (07/25/2024) Casey Smith
[Editor's note: Learn more about individual rights under HIPAA.]

Louisiana: A judge ruled a Louisiana prison's health care system has failed inmates for decades. A federal law could block reforms.
Verite News (07/25/2024) Richard A. Webster
[Editor's note: Learn more about health care in correctional facilities.]

Michigan: New Michigan law makes it easier for prisons to release people in poor health
Associated Press (07/23/2024) Ed White
[Editor's note: Learn more about the CDC's recommendations at intake, during incarceration, and at release.]

South Carolina: MUSC Health halts gender-affirming care for adults as well as children after new state law
The Post and Courier (07/19/2024) Tom Corwin
[Editor's note: Learn more about gender affirming care and young people.]

Tennessee: Dept. of Health denying teens preventative healthcare, citing new parental consent law
Tennessee Lookout (07/17/2024) Anita Wadhwani
[Editor's note: Learn more about preventative health services for teens.]

Utah: Utah Supreme Court allows temporary block on abortion ban to remain in place, for now
KSL (08/01/2024) Bridger Beal-Cvetko
[Editor's note: Learn more about abortion surveillance findings.]

Vermont: ACLU sues health commissioner over opioid settlement committee records
VTDigger (07/17/2024) Peter D'Auria
[Editor's note: Learn more about the opioid overdose epidemic.]

Global Public Health Law News

Global: Many crises, one call to action: advancing gender equality in health in response to polycrises
The Lancet (07/24/2024) Rajat Khosla, et al.
[Editor's note: Learn more about gender and global health.]

African Continent: Alarming diversification of local drug markets in Africa poses a growing public health crisis
UNODC (06/26/2024) UNODC West and Central Africa
[Editor's note: Learn more about global drug markets.]

Brazil: Brazil's Shift in Marijuana Policy: A New Chapter
The Rio Times (07/25/2024) Adele Cardin[Editor's note: Learn more about global cannabis use.]

France: COVID protocols at Paris Olympic Games: What happens if an athlete tests positive?
USA Today (07/24/2024) Carrie McDonald[Editor's note: Learn more about how to protect yourself and others from COVID-19.]

Ghana: VALD-Ghana calls for amendment of Tobacco Control Law to disallow kiddie packs
Ghana News Agency (07/12/2024) Albery Allotey[Editor's note: Learn more about global tobacco control.]

New Zealand: Govt reveals new mental health targets, hints at alcohol law reform in health roadmap
The New Zealand Herald (06/29/2024) Adam Pearse[Editor's note: Learn more about global strategy to reduce the harmful use of alcohol.]

Court Filings & Opinions

New York
The Appellate Division of the Supreme Court of New York, Third Department ("Appellate Division") affirmed the Administrative Law Judge ("ALJ") determination that the New York Office of the Medicaid Inspector General ("OMIG") audit disallowances were proper.

David Wegman, doing business as "Angels in Your Home" ("Petitioner"), operates a home care service for Medicaid recipients who have a traumatic brain injury. OMIG is an office within the New York Department of Health in charge of enforcing Medicaid fraud and abuse laws. OMIG selected Petitioner for a random audit of a sample of Petitioner's claims. During the audit period, Petitioner failed to provide additional supporting documents after OMIG notified Petitioner that certain information was missing for some of their claims. OMIG issued a draft audit report, identifying numerous violations with nearly 80% of the sample claims having at least one deficiency. In its final audit report, OMIG calculated Petitioner's extrapolated overpayments to total over $2.3 million. Petitioner challenged OMIG's audit report, and the presiding ALJ sided with OMIG. Petitioner subsequently appealed to the New York Supreme Court, which transferred the case to the Appellate Division.

On review, Petitioner argued that OMIG's audit report was not supported by substantial evidence and that the extrapolation of the sample over the entirety of Petitioner's claims was improper. The Appellate Division held that substantial evidence was presented demonstrating Petitioner failed to comply with relevant training and vaccination requirements for its staff, failed to complete background checks, and allowed a non-approved provider to see patients. Petitioner attempted to argue that all of the missing documentation was stolen by a prior employee, however the Appellate Division held that Petitioner needed to raise that information either in the audit period or after the draft audit report and was precluded from doing so on appeal. Additionally, the Appellate Division found Petitioner's expert testimony regarding the extrapolation to be inadequate, as the expert witness' characterization of the missing documentation as a "single error" that could not be applied to all claims was misguided, as nearly 80% of the surveyed claims had missing documentation. The Appellate Division subsequently held that the Petitioner could not show the OMIG denied claims were payable and upheld the ALJ's confirmation of OMIG's disallowances.

In the Matter of David Wegman v. New York State Department of Health et al.
Appellate Division of the Supreme Court of New York, Third Department
Case No. CV-23-0219
Decided July 3, 2024
Opinion by Justice Lisa M. Fisher

Federal
The United States Court of Appeals Fifth Circuit affirmed the lower court's decision to deny relief in the form of a preliminary injunction to SO Apartments and Elm Creek ("the Complexes").

The city of San Antonio, Texas created the Proactive Apartment Inspection Program ("PAIP"), a program designed to improve multifamily apartment complexes that have previously failed to meet Code, with the goal of protecting the health of the public and those who live in the multifamily apartment complexes. PAIP involves notification of Code violations, opportunity to appeal, opportunity to remedy violations, and fines for failure to timely remedy. There is also a $100 per-unit, per-year program fee that goes towards monthly inspections, as well as an opportunity to "graduate" from PAIP with remedy of the Code violations and two or fewer new violations over the course of six months. In April 2023, SO Apartments received notice of four violations, and in May 2023, Elm Creek Apartments received notice of twelve violations. They were unsuccessful in challenging these Code violations and thus were enrolled in PAIP. SO Apartments owe a program fee of $12,500, and Elm Creek Apartments owe $32,400, but neither paid this fee.

The Complexes filed suit against the city of San Antonio, claiming PAIP is unconstitutional on three grounds: (1) violation of the Fourth Amendment due to authorization of "frequent and 'warrantless inspections' of private property"; (2) violation of the Eighth Amendment "prohibition against excessive fines" with the fee of $100 per unit; and (3) denial of procedural due process under the Fourteenth Amendment. The Complexes moved for a preliminary injunction with the district court, which was denied and is the issue on appeal to the Court of Appeals. The Court of Appeals affirmed this denial, finding that "the Complexes have failed to show that they would likely succeed on the merits of their claims." The court noted that a decision to grant a preliminary injunction is one of an "extraordinary and drastic remedy," and that the bar is high to meet the qualifications. In failing to demonstrate proof of irreparable harm, the court affirmed the decision of the lower court.

SO Apartments, LLC et. al. v. City of San Antonio
United States Court of Appeals, Fifth Circuit
Case No. 23-50706
Decided July 23, 2024
Opinion by Circuit Judge Patrick E. Higginbotham

COVID-19 Court Filings & Opinions

Federal COVID-19:
Plaintiff Candice Lamara Rowe, proceeding pro se, brings this employment discrimination action against Defendants Brookdale University Hospital ("Brookdale") and Reginald Bullock ("Bullock," and together with Brookdale, "Defendants") pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"). See generally Complaint ("Compl."), ECF No. 1.^[1]

Pending before the Court is Defendants' Motion to Dismiss (the "Motion"), brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Motion, ECF No. 15. Defendants seek dismissal of the Complaint in its entirety. See generally Motion. Plaintiff has not filed an opposition to the Motion notwithstanding having been granted two extensions of the deadline for doing so. See Orders of October 31, 2023 (setting deadline), January 19, 2024 (extending deadline), and April 26, 2024 (further extending deadline); see generally docket.^[2] The Court therefore deems the Motion unopposed. See ECF No. 25 at 2 (Defendants' request that the Court consider the Motion fully submitted without opposition). Notwithstanding the lack of opposition, however, the Court considers the Motion on its merits.

For the reasons set forth below, Defendants' Motion to Dismiss is granted and the Complaint is dismissed in its entirety.

Rowe v. Brookdale University Hospital United States District Court, E.D. New York Case No. 23-CV-03916 Decided July 17, 2024 Opinion by District Judge Diane Gujarati

Vermont: Covid-19
Plaintiffs Dario and Shujen Politella appeal an order dismissing their amended complaint for lack of subject-matter jurisdiction. Plaintiffs' son, L.P., was mistakenly given a single dose of the Pfizer BioNTech COVID-19 vaccine at a state-sponsored vaccine clinic at L.P.'s school. Plaintiffs sued various named and unnamed state and school defendants. We conclude that defendants are immune from suit under the Federal Public Readiness and Emergency Preparedness Act (PREP Act). We therefore affirm.

Politella v. Windham Southeast School District et al.
Supreme Court of Vermont
Case No. 23-AP-237
Decided July 26, 2024
Opinion by Justice Karen R. Carroll

Quote of the month

"This loss is not just devastating for our brave clients, but for the many transgender youth and their families across the state who require this critical, life-saving health care," [Freda Levenson, legal director of the ACLU of Ohio] said in a statement. "While this decision by the court is a genuine setback, it is not the end of the road in our fight to secure the constitutional rights of transgender youth, as well as all Ohioans' right to bodily autonomy."

[Editor's note: This quote is from the above article, Ohio judge rules ban on health care for transgender minors can take effect, appeal expected, Erin Glynn and Jessie Balmert, Columbus Dispatch, (08/06/2024).]

About Public Health Law News

CDC's Public Health Law Program (PHLP) works to improve the health of the public by performing research, creating tools, and providing training to help practitioners understand and make law and policy decisions. Every month, PHLP publishes the Public Health Law News with announcements, legal tools, court opinions, job openings & more.

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