From the Public Health Law Program, Office of the Chief of Public Health Practice, CDC
http://www2a.cdc.gov/phlp/

*** Public Health Action Agenda. The CDC Public Health Law Program, the CDC Coordinating Office of Terrorism Preparedness and Emergency Response, and partners have issued the National Action Agenda for Public Health Legal Preparedness -- a resource for public health officials and policy makers to use in assessing and improving their jurisdictions' legal preparedness for public health emergencies. The Action Agenda is available at www.aslme.org/cdc. 

*** State Tobacco Report. The American Lung Association has released "State of Tobacco Control: 2007," a report assessing state and federal tobacco policies, including laws and regulations that took effect on January 1, 2008. The report is available at http://www.stateoftobaccocontrol.org/.

*** Tobacco Control Conference (3/5-3/6). The 2008 Caribbean Tobacco Control Conference will take place in San Juan, Puerto Rico, from March 5-6. For information, contact Antonio Cases at 787-977-2160 or acases@salud.gov.pr.  

*** Emergency Management Conference (3/10-3/14). The Council of State Governments and the National Emergency Management Association (NEMA) will host the NEMA Mid-Year Conference in Washington, D.C., on March 10-14, 2008. For details, contact Karen Cobuluis at kcobuluis@csg.org. 

*** Law and Medicine Conference (3/12-3/13). The Medical-Legal Partnership for Children will host "Medical-Legal Partnership: A Prescription for Prevention," on March 12-13, 2008, in Kansas City, Missouri. For information, see http://www.bu.edu/cme/seminars/MLPC08/. 

Top Story

1. Physician-owned hospitals faulted on emergency care

States and Localities

2. Florida: Fewer suits by tobacco deadline

3. Idaho: Deal lets field burning restart        

4. New Jersey: New lead paint law adopted for state landlords

International

5. Russia: Cabinet agrees to tobacco convention

Briefly Noted

California health care plan · Clean Air Act hearing · Car smoking · Illinois smoking ban rules · Louisiana Katrina claims · Massachusetts trans fat ban · Teen drivers · Mississippi meth case · Texas school nutrition policy · Washington hospital-acquired infections · West Virginia school caffeine ban · National air pollution case · Tobacco excise taxes · Clinical practice guidelines · Tobacco control report · Canada organ donation · Nigeria tobacco suit · Thailand elephant ban · Smoking ban

Quotation of the Week

Loren Scott, a Baton Rouge-based economist

This Week's Feature

This week the News features an order from the U.S. District Court for the Northern District of California on San Francisco's new health program. See below for more. 

_____________________________1_____________________________

"Physician-owned hospitals faulted on emergency care"

Washington Post     (01/10/08)     Christopher Lee

http://www.washingtonpost.com/wp-dyn/content/article/2008/01/09/AR2008010903140.html?
tid=informbox

Federal investigators reported last week that, despite federal rules, most physician-owned hospitals are poorly equipped for medical emergencies, bolstering concern about the proliferation of such hospitals. According to the report, written by Inspector General Daniel R. Levinson at the Department of Health and Human Services, just 55 percent of 109 physician-owned hospitals reviewed had emergency departments, and the majority of those had only one bed. Less than a third of the hospitals had physicians on site at all times, and 34 percent dialed 911 to get emergency medical assistance for patients in trouble, the report said. Also, 7 percent of the hospitals failed to meet Medicare requirements that a registered nurse be on duty at all times and that at least one doctor be on call if none are in the hospital, according to the report. "It's unbelievable that a facility that calls itself a hospital would, at times, not even have a doctor on call or a nurse on duty," said Sen. Max Baucus, one of the senators requesting the investigation. Levinson also reported that 22 percent of reviewed hospitals failed to address how emergency situations should be evaluated and treated in their written policies. The federal Centers for Medicare and Medicaid Services does not require participating hospitals to have emergency departments but does mandate that they have written policies to handle emergencies. Presently, about 180 physician-owned hospitals are either operating or in development, up from about 110 in 2001, according to Physician Hospitals of America.

[Editor's note: To read "Physician-owned Specialty Hospitals' Ability to Handle Medical Emergencies," see http://www.oig.hhs.gov/oei/reports/oei-02-06-00310.pdf.]

_____________________________2_____________________________

"Fewer suits by tobacco deadline"

Palm Beach Post     (01/12/08)     Jane Musgrave

http://www.palmbeachpost.com/localnews/content/tcoast/epaper/2008/01/12/m1c_tobacco_0112.html

By last Friday's deadline, an estimated 10,000 people had filed lawsuits in Florida courts against the tobacco industry -- 14 years after their attempt to file a class-action. The exact number of individual lawsuits is not yet known, but the estimates are far lower than the 700,000 people who were part of the original class-action lawsuit filed in 1994. In 2006, the Florida Supreme Court voided a $145 billion jury award to the 700,000 members of the class. However, the Court also held that many of the jury's findings could apply to cases brought by class members who filed individual claims against the tobacco industry prior to January 11, 2008. Attorneys involved with filing suits offered several explanations for the low number of individual claims: many potential plaintiffs were elderly; a large number had died with no survivors left to carry on the fight; some were disqualified by statutes of limitation; and others did not want to air their health problems in public. "When you are part of a class-action you can kind of hide behind the class," said Coral Springs attorney Barry Mittelberg, who filed 25 claims. The suits are scattered throughout Florida in state and federal courts -- a strategy by smokers' attorneys who hope to weaken the tobacco industry's defenses by litigating on many fronts. Friday's deadline applied only to plaintiffs in the 1994 class-action lawsuit; people who became ill or died from smoking-related illnesses after 1996 or who weren't part of the original class can still file lawsuits against tobacco companies in Florida.

_____________________________3_____________________________

"Deal lets field burning restart"

Spokesman Review     (01/12/08)     Betsy Z. Russell

http://www.spokesmanreview.com/tools/story_pf.asp?ID=227490

Field burning could resume in Idaho this summer under an agreement reached last week by the state, farmers, and an organization whose lawsuit temporarily halted the practice. No field burning occurred last summer after the Ninth Circuit Court of Appeals decided in January 2007 to overturn Idaho's field-burning rules, prompting the state to prohibit agricultural field burning outside of Indian reservations. Under the agreement, Idaho will: transfer regulation of field burning from the state Agriculture Department back to the Department of Environmental Quality; launch a statewide smoke-management program making public health a priority and halting burning if air pollution levels exceed or are expected to exceed 75 percent of standards; change the practice of keeping burn locations secret; and put more state resources into analyzing effects of air quality. "It was always our position that it's better to come to the table and get people talking, and try to work out a reasonable agreement," said Patti Gora, executive director of Safe Air For Everyone (SAFE), a physician's organization that sued over concern that annual late-summer burning of bluegrass was causing serious respiratory problems in patients. At least two asthma patients' deaths were linked to smoke from the burning. Moving forward, Idaho will need the U.S. Environmental Protection Agency (EPA) to approve revisions in the state's Clean Air Act implementation plan, said Agriculture Director Celia Gould. Last year, the Ninth Circuit Court held that EPA had been "legally erroneous" in approving a "clarification" of the state's implementation plan that allowed field burning.

[Editor's note: To read Safe Air For Everyone v. EPA, No. 05-75269 (9th Cir. 2007), see http://www.ca9.uscourts.gov/ca9/newopinions.nsf/D85F5A5809880E29882572720080B03F/$file
/0575269.pdf?openelement. For information about Idaho's agricultural field burning rules, see http://www.deq.state.id.us/air/prog_issues/burning/agricultural.cfm.]

_____________________________4_____________________________

"New lead paint law adopted for state landlords"

Herald News     (01/11/08)     Karen Keller

http://myheraldnews.com/view.html?type=stories&action=detail&sub_id=24565

New Jersey landlords who own single- and two-family rental properties must now have their units inspected every five years for lead-based paint hazards and remediate if such a hazard is found. Governor Jon Corzine recently signed the legislation to limit human exposure to lead, which can lead to brain damage and reduced motor skills, particularly in children. Before the new law, the state required inspections only for multi-unit dwellings; and remediation was only required for single- and two-family homes when a child had already been diagnosed with lead poisoning, according to the state's Department of Health and Senior Services. Before the state begins inspecting homes, it will create a registry of affected properties. Seasonal units, homes built after 1978, and landlords who produce a certificate showing no lead hazard will be exempt from the law. If a unit contains a lead hazard and the landlord does not remediate, first-time fines can reach $500. Continuing violations carry a maximum penalty of $5,000, according to the Department of Community Affairs, the agency enforcing the law. Some localities are unsure how to enforce the new law in conjunction with pre-existing city lead paint laws. In Paterson, New Jersey -- where 80 percent of housing was built prior to 1978 -- a 1985 city law requires landlords to pay for lead-paint inspections before selling residential property or renting to a new tenant. However, the Paterson law only mandates inspection and disclosure, not remediation. Last year, 128 of 5,327 Paterson children tested were found to have lead poisoning.

[Editor's note: To read A3263, the bill approved by the New Jersey Senate and Assembly, see http://www.njleg.state.nj.us/2006/Bills/A3500/3263_I1.PDF. To learn more about the Lead-safe NJ Program, see http://www.state.nj.us/dca/dcr/leadsafe/.]

_____________________________5_____________________________

"Cabinet agrees to tobacco convention"

Moscow Times     (01/11/08)     Anatoly Medetsky

http://www.themoscowtimes.com/stories/2008/01/11/043.html

The Russian Cabinet recently approved a bill that paves the way for Russia to accede to the World Health Organization's (WHO) Framework Convention on Tobacco Control. The bill will enact a total ban on tobacco advertising, promotion, and sponsorships if passed by the State Duma and signed by the president. Duma Speaker Boris Gryzlov, whose party holds a large majority in the chamber, has signaled his support for the bill. "I think accession to the convention is absolutely the right thing to do," Gryzlov said. Current Russian laws prohibit outdoor, radio, and television tobacco advertising, but not sponsorship, advertising in glossy magazines, or advertising on public transportation. The Framework also requires member countries to raise taxes on cigarettes to discourage consumption. Russia only levies a 3 percent tax on tobacco production, compared to a 50 percent tax on tobacco production in some Western European countries, according to Adam Buzurukov, WHO's tobacco-control officer in Moscow. The cheapest cigarette brand costs the equivalent of 25 cents per pack in central Russia, Buzurukov said. Governments acceding to the Framework must also restrict smoking in public places and remove "mild" and "light" denotations from packaging. In recent years, tobacco companies have invested in the Russian market as they sought to compensate for losses in other markets where anti-smoking regulations had taken effect. Russia's Federal Consumer Protection Service reported in November that 65 percent of Russian men and 30 percent of women smoke. "We are positively thrilled," Buzurukov said. "It would have been great if it had happened even earlier."

[Editor's note: To learn more about the WHO Framework Convention on Tobacco Control, see http://www.who.int/tobacco/framework/en/.]

_____________________BRIEFLY NOTED______________________

California: Health plan approved by Assembly gets go ahead from appeals court

"All eyes on S.F.: challenge to city's health care plan could affect state"

Sacramento Bee     (01/13/08)     Aurelio Rojas

http://www.sacbee.com/111/story/630096.html

California: Officials meet to examine EPA Clean Air Act waiver denial

"California leaders take aim at EPA at Senate committee briefing"

Associated Press     (01/10/08)     Noaki Schwartz

http://www.signonsandiego.com/news/state/20080110-1431-ca-california-greenhousegases.html

California: Live demonstration shows dangers of smoking in cars

"Putting smoking in cars to the test"

Los Angeles Times     (01/04/08)     Mary Engel

http://www.latimes.com/features/health/medicine/la-me-smoking4jan04,1,682125.story

Illinois: Indoor smoking ban rules still under debate

"Illinois' smoking ban rules still hazy"

St. Louis Post-Dispatch     (01/10/08)     Kevin McDermott

http://www.stltoday.com/stltoday/news/stories.nsf/illinoisnews/story/510C05DDC6525B4886257
3CC0014DC8B?OpenDocument

Louisiana: 489,000 federal claims filed over damage from failure of levees, flood walls

"Katrina victim sues U.S. for $3 quadrillion"

Associated Press     (01/09/08)    

http://www.msnbc.msn.com/id/22571349/

Massachusetts: Unanimous Public Health Commission vote gives preliminary approval

"Boston moves toward trans fats ban"

Boston Globe     (01/11/08)     Stephen Smith and Tania deLuzuriaga

http://www.boston.com/news/health/articles/2008/01/11/boston_moves_toward_trans_fats_ban/

Massachusetts: Law's first months led to thousands of license suspensions, fewer fatal crashes

"Teenagers feeling sting of tougher driving laws"

Boston Globe     (01/09/08)     Matt Carroll

http://www.boston.com/news/local/articles/2008/01/09/teenagers_feeling_sting_of_tougher_
driving_laws/

Mississippi: Case questions unit used to measure unlawful possession of meth ingredient

"State Supreme Court to review drug case"

Associated Press     (01/11/08)

http://www.clarionledger.com/apps/pbcs.dll/article?AID=/20080111/NEWS/801110333/1001

Texas: Study finds increase in vegetable, milk consumption

Improvements in dietary intake after implementation of the Texas Public School Nutrition Policy

American Journal of Public Health     (01/08)     Karen Weber Cullen and others

http://www.ajph.org/cgi/content/abstract/98/1/111 (subscription required)

Washington: Panel stops short of mandatory reporting, citing limited ability to compare data

"Watchful policy urged on infections"

Seattle Times     (01/12/08)     Carol M. Ostrom

http://seattletimes.nwsource.com/html/health/2004121400_mrsa12m.html?syndication=rss

West Virginia: State Board of Education sets standards for nutrition

"Schools suspend caffeine"

Charleston Gazette     (01/11/08)     Davin White

http://wvgazette.com/section/News/2008011026

National: Court refuses to hear suit over ozone standards

"Justices reject industry challenge to air pollution ruling"

Associated Press     (01/14/08)

http://www.signonsandiego.com/news/business/20080114-0714-scotus-epa.html

National: Study estimates health and economic outcomes of raising tobacco excise taxes

"Raising taxes to reduce smoking prevalence in the U.S."

Public Health     (01/08)     Sajjad Ahmad and Gregor A. Franz

http://www.ncbi.nlm.nih.gov/pubmed/17610918?dopt=Abstract (subscription required)

National: Commentary cautions on turning clinical practice guidelines into legislative mandates

"Transforming clinical practice guidelines into legislative mandates"

Journal of the American Medical Association     (01/09/08)     Peter D. Jacobson

http://jama.ama-assn.org/cgi/content/extract/299/2/208 (subscription required)

National: American Lung Association finds undue influence on policies by tobacco companies

"U.S. falls short in anti-tobacco efforts"

Reuters     (01/10/08)     Maggie Fox

http://www.reuters.com/article/latestCrisis/idUSN09638124

Canada: Organ donation rules don't ban, just limit donations from those in risk category

"New organ donation rules don't exclude gay men"

Globe and Mail     (01/10/08)     Carly Weeks

http://www.theglobeandmail.com/servlet/story/RTGAM.20080110.wlorgan10/BNStory/special
ScienceandHealth/home

Nigeria: Nation seeks $40 billion for tobacco burden of illnesses

"Nigeria holds first hearings in government's case against tobacco firms"

Associated Press     (01/14/08)     Bashir Adigun

http://www.msnbc.msn.com/id/22647136/

Thailand: Law prohibiting elephants from city streets infrequently enforced

"In Bangkok, it's a tough life for elephants"

International Herald Tribune     (01/13/08)     Thomas Fuller

http://www.iht.com/articles/2008/01/13/asia/elephants.php

Thailand: Regulation prevents lighting up in outdoor market

"Thailand to ban smoking in bars, restaurants: health ministry"

Agence France Presse     (01/11/08)

http://news.yahoo.com/s/afp/20080111/hl_afp/healthlifestylethailandsmoking_080111142730

__________PHL NEWS QUOTATION OF THE WEEK___________

"That's the mother of all high numbers."

-- Baton Rouge economist Loren Scott, on the $3 quadrillion damages claim being sought by one Hurricane Katrina victim in a suit against the Army Corps of Engineers over damage from the failure of levees and flood walls following the hurricane. Roughly $3,014,170,389,176,410 total is being sought from some 489,000 claims against the federal government in Katrina claims. (See Briefly Noted item, above.)

__________________LAW BEHIND THE NEWS___________________

The U.S. Court of Appeals for the Ninth Circuit recently heard oral arguments from San Francisco officials appealing an order issued by the U.S. District Court for the Northern District of California regarding the city's Healthy Security Ordinance, which comprises part of the "Healthy San Francisco" initiative. The ordinance requires covered private employers to make certain minimum expenditures by paying directly into health savings accounts, contributing to private health insurance plans, or participating in a city health plan created by the ordinance.

In the contested order, issued Dec. 26, 2007, U.S. District Judge Jeffrey White found the ordinance's expenditure requirements to be preempted by the Employee Retirement Income Security Act (ERISA). Congress enacted ERISA to eliminate "the threat of conflicting or inconsistent State and local regulation of employee benefit plans," and under U.S. Supreme Court precedent, a state law is preempted by ERISA if it is either connected with or makes reference to an ERISA plan, according to White's order. White held that the ordinance "affects plan administration, a core area of ERISA concern;" that "employers would necessarily have to keep an eye on the minimum health care spending requirements in each locality in order to comply with potentially conflicting requirements," thus conflicting with "ERISA's promise to provide a uniform regulatory regime;" and that the ordinance "specifically references the existence of [ERISA] plans."

Judge White's order temporarily stalled the San Francisco program from taking effect on January 1, 2008. However, the U.S. Court of Appeals for the Ninth Circuit agreed last week to allow the program to begin, for now, until it rules on the merits of the appeal.

To read Judge White's order in Golden Gate Restaurant Ass'n v. San Francisco, No. 06-06997 (N.D. Cal. Dec. 26, 2007), see http://www2a.cdc.gov/phlp/docs/Golden-Gate-Restaurant-Association_v_San-Francisco.pdf. For more information about the "Healthy San Francisco" program, see http://www.healthysanfrancisco.org/.

___________________________________________________________

The CDC Public Health Law News is published each Wednesday except holidays, plus special issues when warranted. It is distributed only in electronic form and is free of charge.  News content is selected solely on the basis of newsworthiness and potential interest to readers. CDC and DHHS assume no responsibility for the factual accuracy of the items presented. The selection, omission, or content of items does not imply any endorsement or other position taken by CDC or DHHS. 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 DHHS. References to products, trade names, publications, news sources, and non-CDC Websites are provided solely for informational purposes and do not imply endorsement by CDC or DHHS. Legal cases are presented for educational purposes only, and are not meant to represent the current state of the law. The findings and conclusions in this document are those of the author(s) and do not necessarily represent the views of CDC. The News is in the public domain and may be freely forwarded and reproduced without permission. The original news sources and the CDC Public Health Law News should be cited as sources. Readers should contact the cited news sources for the full text of the articles.

For past issues or to subscribe to the weekly CDC Public Health Law News, visit http://www2a.cdc.gov/phlp/cphln.asp. For help with subscriptions or to make comments or suggestions, send an email to Rachel Weiss at rweiss@cdc.gov.

The News is published by the Public Health Law Program, Office of the Chief of Public Health Practice, Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services (DHHS). Rachel Weiss, J.D., Editor; Christopher Seely, J.D., Associate Editor; Karen L. McKie, J.D., M.L.S., Editorial Advisor.