Wednesday, January 30, 2008
From the Public Health Law Program, Office of the Chief of Public
Health Practice, CDC
http://www2a.cdc.gov/phlp/
_______________________________________________________________
*** NIOSH Mine Safety Report. The
National Institute for Occupational Safety and Health (NIOSH) Office
of Mine Safety and Health recently released a report on the benefits
and challenges of rescue chambers and in-place shelters in mines.
The "Research Report on Refuge Alternatives for Underground Coal
Mines" is available at
http://www.cdc.gov/niosh/mining/mineract/pdfs/Report_on_Refuge_Alternatives_Research_12-07.pdf.
*** Pandemic Influenza Guide. The
Association of State and Territorial Officials has released the
"Privacy and Pandemic Flu Guide," available at
http://www.astho.org/pubs/Privacyandpanfluguide1.pdf.
*** Columbia Research Position. Columbia
University is accepting applications for a public health law grant-funded
research position to design and administer a Web-based survey, conduct
data searches for local ordinances, contact local health departments,
and complete other research-oriented tasks. To apply, see
https://jobs.columbia.edu/applicants/jsp/shared/frameset/Frameset.jsp?time=1201709404344.
*** Connecticut Assistant Professor Position.
A full-time faculty position as Assistant Professor in Law and Biomedical
Ethics is available in the Division of Medical Humanities, Health
Law and Ethics in the Department of Community Medicine at the University
of Connecticut. For more information, contact Sally Jett at
jett@nsol.uchc.edu or at 860-679-5491.
*** Harvard Research Associate Position.
The Program in Law and Public Health at the Harvard School of Public
Health has a research position available. The research associate
will work with faculty on projects relating to the relationship
between law and health. For details, see
http://jobs.harvard.edu/jobs/summ_req?in_post_id=36801.
*** Tobacco Control Conference (3/26-3/28).
Access 2008: Building a Tobacco-Free Future will take place on March
26-28, 2008, in Seattle, Washington. For more information on the
conference, which will highlight "what's new and next in tobacco
control," see
http://www.accessconference.org/.
*** Law and Obesity Conference (9/19-9/21).
Save the Date! The Fifth Conference on Public Health, Law, and Obesity
will take place on September 19-21, 2008, at Northeastern University
School of Law, in Boston, Massachusetts. For more information, see
http://www.phaionline.org/obesityconference2008.
Top Story
1. A CDC review of school
laws and policies concerning child and adolescent health
States and Localities
2. Louisiana: N.O. demolition
rules overhauled
3. Minnesota: After 10
years, smoke clears on state's tobacco lawsuit
4. Virginia: House panel
moves to ease commitment laws
National
5. Expedited partner therapy
for sexually transmitted diseases: the legal environment
6. Navajo Nation: Navajo
lawmakers to vote on proposed tribal Superfund law
International
7. South Africa: Rights
dilemma as South Africa faces drug resistant TB epidemic
8. International: A pandemic
that wasn't but might be
Briefly Noted
California school air pollution
· Prison health overseer · Cross-border tobacco control · Pesticide
rules · Maryland lead paint award · Asbestos suits · Mississippi
FEMA maps · New York nicotine therapy petition · Ohio prison asbestos
suit · Language barrier · Oregon circumcision ruling · Virginia
ADA smoking claims · Sangria ban · West Virginia energy firm suit
· National EPA waiver hearing · Mine citations · Safe injection
facilities · Switzerland IHR amendment · United Kingdom smoking
breaks
Quotation of the Week
Edgar Terry, of California's
Terry Farms
This Week's Feature
Law Behind the News.
This week, we feature a petition filed by the New York State Health
Commissioner regarding U.S. Food and Drug Administration restrictions
on sales of nicotine replacement therapies. See below for more.
_____________________________1_____________________________
"A CDC review of school laws and policies
concerning child and adolescent health"
Journal of School Health (02/08)
Sherry Everett Jones and others
http://www.ashaweb.org/pdfs/josh782.pdf
The authors of this study sought to provide
an overview of the legal and policy landscape in the United States
designed to protect the health and safety of children and adolescents
in schools. The study describes the facets of a coordinated school
health program (CSHP) model, adopted by state and local education
agencies nationwide. CDC also utilizes the model "as an organizing
framework for its school health guidelines, surveillance systems,
and recommendations for promising practices." The eight CSHP components
include health education, physical education, health services, nutrition
services, mental health and social services, healthy and safe school
environment, health promotion for staff, and family and community
involvement. The report describes the legal framework for education,
which "includes a complex network of federal, state, and local laws
and regulations," before examining the legal framework for each
of the eight CSHP components. For example, a section on physical
education and activity examines federal, state, and local legal
requirements concerning providing physical education; "federal incentives
to encourage physical education;" the "role of national physical
education standards and required physical education curriculum;"
"teacher preparation and professional development programs;" and
"the required use of protective gear." A section on health services
explores the legal requirements to provide testing, screening, and
treatment for health conditions; student consent requirements; the
use of identifiable health data; and funding for school health services.
According to the authors, many legal and policy themes emerge from
the review, including the integration of public health and education
services, division of responsibilities, national primacy over state
and local laws, and state and local innovation.
_____________________________2_____________________________
"N.O. demolition rules overhauled"
Times-Picayune (01/26/08) Michelle
Krupa
http://www.nola.com/timespic/stories/index.ssf?/base/news-8/120133081317840.xml&coll=1
New Orleans signed a federal consent decree
last week to overhaul its procedures for demolishing properties
that pose an imminent threat to public health, safety, and welfare.
Also signing the decree were fair housing advocates, who filed a
federal lawsuit against New Orleans claiming that the city illegally
demolished structures under an "imminent health threat" law that
allows for the removal of mold-ridden, rat-infested properties.
The fair housing advocates represented five home owners and a pastor
who alleged that they never received proper notice that their property
would be demolished. Under the new consent decree, demolition notices
must be mailed to property owners' newest addresses and the city
must post notices on its Website. According to the decree, the notices
must state "particular actions the property owner must remedy to
avoid demolition," in addition to making clear owners' rights to
object to the demolition. The decree also requires the city to process
owners' objections by establishing procedural mechanisms to receive
written appeals and to hold appeal hearings. It remains unclear
how the consent decree will affect the pace of demolitions ordered
by New Orleans, which is slated to demolish 1,800 properties damaged
by Hurricanes Katrina and Rita. The consent decree, approved by
U.S. District Judge Martin Feldman, also states that it does not
settle the dispute filed by the five home owners and pastor, who
want New Orleans to rebuild their properties or to compensate them
for their losses.
_____________________________3_____________________________
"After 10 years, smoke clears on state's
tobacco lawsuit"
Start Tribune (01/26/08) David Phelps
http://www.startribune.com/business/14424046.html
Ten years after Minnesota won a $6.1 billion
tobacco settlement, it has used the funds to help thousands of Minnesota
adults quit smoking and to persuade middle and high school students
not to start. The settlement has also laid the groundwork for a
statewide smoking ban, and $1 billion was used -- to the chagrin
of some public health advocates -- to balance the state's budget
in 2003. Whereas prior cases had been filed by individual smokers,
Minnesota v. Phillip Morris marked the first Big Tobacco
case filed on behalf of institutions that paid for treatment of
smoking-related ailments. Part of the first settlement payments
went to endowments at the Minnesota Department of Public Health,
which created a campaign called "Target Market" that advertised
a don't-smoke message to teens. When Target Market was in effect,
from 1998-2004, smoking among high school seniors declined from
42 percent to 26.6 percent, according to Department numbers. Last
year's smoking ban and the 2005 increase in cigarette tax have also
decreased smoking rates, say health and business advocates. The
state Department of Revenue reported that per-pack sales dropped
19 percent in the two years after the tax was increased from 48
cents per pack to $1.48. "When you talk to people, there's a different
attitude now about smoking. Smoking is more the exception than the
rule," said former Attorney General Hubert Humphrey III, whose office
began pursuing the tobacco industry in 1994. "That wouldn't have
happened at nearly the pace it did without the settlement."
[Editor's note: For information on how to
access documents in the Minnesota Tobacco Document Depository, see
http://www.tobaccoarchives.com/doc.html. The Depository contains
more than 26 million pages of tobacco company documents unearthed
during the discovery phase of Minnesota's lawsuit, relating to research,
manufacturing, marketing, advertising, and sales of cigarettes.
Governments and groups, such as the World Trade Organization, have
used the documents to craft tobacco-control policies.]
_____________________________4_____________________________
"House panel moves to ease commitment laws"
Washington Post (01/26/08) Chris
L. Jenkins
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/25/AR2008012503096.html?hpid=
sec-health
Last week the Virginia House of Delegates
took a major step toward legislation that would ease the standard
by which mentally ill people can be involuntarily committed to hospitals.
Under Virginia's involuntary commitment law, people can be committed
against their will if they pose an "imminent danger to self or others."
But under a change approved by legislators on the Courts of Justice
Committee, a magistrate or special justice could commit someone
to treatment if there is "a substantial likelihood" that the person
would cause "serious physical harm to himself or herself" in the
near future or could "suffer serious harm due to substantial deterioration
of his capacity to protect himself from harm or to provide for his
basic human needs." Supporters of the measure say it would make
the process of assessing mental health more efficient and comprehensive.
However, opponents of the new standard say it is as vague as the
old one and fear that too many people would be brought in for involuntary
commitment hearings. "It's a massive deprivation of civil liberty,
and it should only be done in limited circumstance," said Colleen
Miller, executive director of the Virginia Office for Protection
and Advocacy. The new standard follows recommendations of the independent
commission that investigated the shootings by Seung Hui Cho at Virginia
Tech last April. The House action also mirrors Gov. Timothy Kaine's
recommendations, and a state Senate subcommittee is considering
legislation on a version of the new involuntary commitment standard.
[Editor's note: For more on HB 499, which
was unanimously passed by the Virginia Courts of Justice Committee,
see
http://leg1.state.va.us/cgi-bin/legp504.exe?081+sum+HB499.]
_____________________________5_____________________________
"Expedited partner therapy for sexually transmitted
diseases: assessing the legal environment"
American Journal of Public Health
(02/08) James G. Hodge Jr. and others
http://www.ajph.org/cgi/content/abstract/98/2/238 (subscription
required)
The authors of this study investigated the
legal framework in states relevant to the uptake of expedited partner
therapy (EPT), a means for treating the partners of sexually transmitted
disease (STD) patients. Sexually transmitted diseases, including
chlamydia and gonorrhea, continue to be significant public health
challenges; over 2.8 million new cases of chlamydia and 700,000
new cases of gonorrhea are diagnosed each year, according CDC data.
Traditionally, clinical management of patients with sexually transmitted
diseases includes treatment of current sexual partners. EPT, however,
relies on the delivery of medications or prescriptions by the infected
person to their sexual partner without clinical assessment of the
partner. CDC recommended EPT as a treatment option in August 2006,
based on available scientific evidence, finding it a "useful option"
to promote partner treatment. But providing prescriptions or medications
to people who have not been examined by a clinician may be viewed
as illegal or unethical. The authors analyzed the laws of all 50
U.S. states to "identify legal provisions that affect a clinician's
ability to provide treatment for an STD patient's sexual partner
without prior evaluation of that partner." The authors assessed
laws, regulations, and other legal decisions in the areas of medical
licensing and liability, public health and safety, and pharmaceutical
practices. They found that in 12 jurisdictions, EPT is expressly
allowed by law or other governing authority; EPT is probably precluded
in 13 jurisdictions; and in 28 jurisdictions, EPT is "potentially
allowable" because of different possible interpretations of legislative,
regulatory, or policy statements or provisions. The authors conclude
by offering recommendations to facilitate the practice of EPT.
[Editor's note: For more on expedited partner
therapy from CDC, visit
http://www.cdc.gov/std/ept/.]
_____________________________6_____________________________
"Navajo lawmakers to vote on proposed tribal
Superfund law"
Associated Press (01/25/08) Felicia
Fonseca
http://www.lcsun-news.com/ci_8078384
A bill designed to allow officials to monitor
and remove hazardous substances that could endanger the public's
health is making its way through the Navajo Tribal Council. The
bill mirrors the U.S. Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA), also known as the "Superfund" law. Adoption
would grant the Navajo Environmental Protection Agency (Navajo EPA)
"authority similar to what the state and federal government have
in response to hazardous waste," said Executive Director Stephen
Etsitty. The Nation has already adopted the list of chemicals used
by the federal government to determine whether a site is hazardous.
The bill would further allow Navajo EPA to identify and take remedial
action on contaminated sites that are not being addressed by the
U.S. government. The tribal bill would also hold property owners
or people who bring hazardous substances onto the Navajo Nation
responsible for cleanup. According to a U.S. EPA spokeswoman, the
agency plans to test 75 water sources and 100 structures this spring,
and contaminated sites will be considered for cleanup under the
federal Superfund law. Navajo EPA officials are particularly concerned
about the cleanup of more than 1,000 abandoned uranium mining sites
that have sickened many on the reservation, which extends over parts
of New Mexico, Arizona, and Utah. The Navajo Nation is working with
U.S. EPA and other federal agencies to develop a five-year action
plan to address the effects of uranium mining.
[Editor's note: To learn more about the Navajo
Nation Environmental Protection Agency, visit
http://navajonationepa.org/.]
_____________________________7_____________________________
"Rights dilemma as South Africa faces drug
resistant TB epidemic"
Agence France Presse (01/27/08) Mariette
le Roux
http://afp.google.com/article/ALeqM5jxwLa1Lr6VCEZOE4BCsuu9gTD5SA
As the number of patients diagnosed with
extensively drug resistant tuberculosis (XDR TB) rises, healthcare
providers and government officials worry about the conflict between
individual rights and the risk to the public's health. Between January
and October 2007, 391 cases of XDR TB were diagnosed, compared to
just 74 in all of 2004, according to the South African Department
of Health. XDR TB is resistant to most antibiotics, and can develop
when patients with more treatable strains of TB fail to take their
medication as prescribed. Those diagnosed with XDR TB are virtually
untreatable, and many are kept in isolation at Cape Town's Brooklyn
Chest Hospital. A fence 6.5 feet tall was recently erected around
the XDR TB ward to dissuade patients from fleeing the hospital after
four such patients repeatedly ran away last year. Doctors are hindered
in their efforts to treat XDR TB patients and protect the public,
as no legal mechanism allows them to confine patients involuntarily
or compel them to take medication. "We encourage them not to leave
-- by law, you can't force them," said Dr. Simon Moeti, senior medical
superintendent at Brooklyn Chest. Instead, doctors are forced to
apply for individual court orders, which are both costly and time-consuming.
"It is a process that takes a lot of time and energy. We are looking
at whether we can find clauses in our legislation that will allow
a general approach to the matter," said Health Department Director-General
Thami Mseleku.
_____________________________8_____________________________
"A pandemic that wasn't but might be"
New York Times (01/22/08) Donald
G. McNeil Jr.
http://www.nytimes.com/2008/01/22/science/22flu.html?_r=1&oref=slogin
Last year, the number of human cases of avian
influenza was down from the year before -- for the first time since
the virus emerged as a global threat. According to the World Health
Organization, there were 86 confirmed human cases and 59 deaths
in 2007, compared with 115 cases and 79 deaths in 2006. Yet despite
the decreases, avian influenza has not become less lethal or widespread
in birds, and experts say preparation efforts must continue. Dr.
David Nabarro, senior United Nations coordinator for human and avian
influenza, said he worried somewhat less than three years ago, "not
because I think the threat has changed, but because the response
to it has gotten so much better." Since the warnings of a catastrophic
pandemic began: vaccines were developed; stockpiles of Tamiflu and
surgical masks increased; many government entities and companies
wrote pandemic plans; laboratories in affected nations became faster
at influenza tests; veterinarians moved more quickly to cull infected
poultry; and some hospitals created wards for infected patients.
Dr. Paul A. Offit, a vaccine specialist at Children's Hospital in
Philadelphia, cautioned that the announcement might spur a "boy
who cried wolf" reaction. "When the next pandemic comes, people
will say, 'Yeah, yeah, we heard that last time." But according to
Michael T. Osterholm, director of the Center for Infectious Disease
Research and Policy at the University of Minnesota, the fact that
human cases fell in 2007 is "pretty much meaningless," in part because
the virus is still circulating and has evolved 10 taxonomic groups
and hundreds of variants.
[Editor's note: The Cumulative Number of
Confirmed Human Cases of Avian Influenza A/ (H5N1) Reported to WHO
is available at
http://www.who.int/csr/disease/avian_influenza/country/cases_table_2008_01_29/en/index.html.]
_____________________BRIEFLY
NOTED______________________
California: Restriction to keep kids from
sources of air pollution
"Board acts to limit new schools near freeways"
Los Angeles Times (01/23/08) Evelyn
Larrubia
http://www.latimes.com/features/health/la-me-freeways23jan23,1,6337700.story?coll=la-headlines
-health
California: Receiver ousted by court order
for slow pace of change
"Judge gives state prison health overseer
the boot"
Medianews (01/24/08) Barbara Feder
Ostrov and Brandon Bailey
http://www.insidebayarea.com/ci_8063740?source=rss
California: Study finds association between
program and tobacco-related behaviors
The impact of the California Tobacco Control
Program on both sides of the U.S.-Mexico border
American Journal of Public Health
(02/08) Ana P. Martínez-Donate and others
http://www.ajph.org/cgi/content/abstract/98/2/258 (subscription
required)
California: Fumigant rules could thwart strawberry
crops
"Ventura County growers brace for strict
pesticide rules"
Los Angeles Times (01/25/08) Marla
Cone and Gregory W. Griggs
http://www.latimes.com/news/local/la-me-fumigants25jan25,1,3291881.story
Maryland: 8 year-old sues realty company,
property manager for failing to remove lead hazards
"Baltimore City Circuit Court awards $6M
in lead paint case"
Daily Record (01/24/08) Liz Farmer
http://www.mddailyrecord.com/article.cfm?id=4104&type=UTTM
Maryland: Chemical company asks bankruptcy
judge to declare 100,000 asbestos claims invalid
"Grace bets on winning asbestos lawsuits"
Washington Post (01/28/08) Zachary A. Goldfarb
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/27/AR2008012701656.html
Mississippi: Flood advisory standards said
to require impossible heights, unaffordable insurance
"Officials: FEMA maps may wipe Bay off map"
Sun Herald (01/27/08) J.R. Welsh
http://www.sunherald.com/201/story/326847.html
New York: FDA petitioned to relax policies
limiting access to nicotine patches, gum, lozenges
"Health commissioner seeks easier access
to nicotine therapy"
Associated Press (01/29/08)
http://www.wcax.com/Global/story.asp?S=7788140&nav=4QcS
Ohio: Lawsuit accuses Rehabilitation and
Correction Department of deliberate indifference
"Inmates accuse prison officials of lying
about asbestos"
Columbus Dispatch (01/22/08)
http://www.ohio.com/news/ap?articleID=351811&c=y
Ohio: Police looking to address language
needs as immigrant populations grow
"Language barrier still in the way"
Columbus Dispatch (01/28/08) Alayna
Demartini
http://www.dispatch.com/live/content/local_news/stories/2008/01/28/Language.ART_ART_01-28-08
_B1_MO96C2P.html
Oregon: Court rules boy's opinion to be taken
into account for elective surgery
"Ore. Court: boy has say in circumcision"
Associated Press (01/25/08) Sarah
Skidmore
http://ap.google.com/article/ALeqM5hauz0PI_3kYdqBNezvr9DhlBbwLwD8UD4N1O0
Virginia: Suit is latest in line of suits
seeking smoking bans as "reasonable accommodation"
"Virginia smoking suit cites ADA"
Washington Times (01/28/08) Jen Haberkorn
http://www.washingtontimes.com/article/20080128/BUSINESS/556065262/1006
Virginia: 75 year-old law bans mixing of
wine or beer with spirits
"Virginia's sangria ban at issue in 2 hearings"
Washington Post (01/24/08) Anita
Kumar
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/23/AR2008012303400.html
West Virginia: Court tosses $75 million verdicts
over allegations of bias and impropriety
"West Virginia Supreme Court to rehear case
of energy firm"
Pittsburgh Post-Gazette (01/25/08)
Len Boselovic
http://www.post-gazette.com/pg/08025/852078-28.stm
National: Administrators says California's
purported global warming threat not unique
"EPA chief won't budge on waiver"
Sacramento Bee (01/25/08) David
Whitney
http://www.sacbee.com/111/story/660988.html
National: MSHA director says inspection and
assessment process have improved over past year
"Mine operators often go unpunished for citations"
Associated Press (01/28/08)
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/27/AR2008012702311.html
National: Study finds SIFs face legal uncertainty;
must rely on planning, sustained political effort
"The law (and politics) of safe injection
facilities in the United States"
American Journal of Public Health
(02/08) Leo Beletsky and others
http://www.ajph.org/cgi/content/abstract/98/2/231 (subscription
required)
Switzerland: Text reaffirms commitment to
'timely and effective and universal implementation'
"WHO board passes Chinese amendment to IHR-related
draft bill"
Central News Agency (01/23/08)
http://www.cnanews.gov.tw/eng/cepread.php?id=200801230051
United Kingdom: City Council staff must make
up time taken for smoking breaks
"Staff will not be paid while they smoke"
Bristol Evening Post (01/25/08)
http://www.thisisbristol.co.uk/displayNode.jsp?nodeId=144913&command=displayContent&
sourceNode=145402&contentPK=19660033&folderPk=83733&pNodeId=145393
__________PHL
NEWS QUOTATION OF THE WEEK___________
"Vegetables have moved out."
-- Edgar Terry, of California's Terry Farms,
on the costly ramifications of the state's new pesticide regulation.
Facing a court-ordered deadline to combat smog, the California Department
of Pesticide Regulation has cracked down on the use of poisonous
gases that are injected into fields to kill insects, weeds, and
pathogens before crops are planted. Growers may be forced by the
strict rules to move to other states, said Terry. [See Briefly Noted
item, above.]
__________________LAW
BEHIND THE NEWS___________________
New York State Health Commissioner Richard
Daines filed a petition this week with the U.S. Food and Drug Administration
(FDA) requesting increased availability of over-the-counter (OTC)
nicotine replacement therapies (NRT) such as patches, gum, and lozenges.
"Under the current system, a smoker generally cannot buy [NRT] in
the same store where cigarettes are sold, and, even though most
smokers buy cigarettes one day at a time, those who purchase [NRT]
must buy a one- or two-week supply costing $20 to $40," Daines said.
The petition, filed pursuant to 21 CFR §
10.30, requests the FDA Commissioner to make three changes to current
NRT rules: 1) allow the sale of OTC NRT "in all retail locations
where cigarettes are sold," including convenience marts, gas stations,
tobacco specialty stores, grocers; 2) allow OTC NRT to be sold in
"units containing an amount of OTC NRT product that would typically
be consumed in a 24-hour period;" and 3) modify labeling requirements
to disclose that "OTC NRT is safe for use by smokers and safer for
use than continued cigarette use."
The FDA policy to which Daines objects can
be found in an FDA Center for Drug Evaluation and Research (CDER)
letter (dated December 23, 1998) that approves the new drug application
for Nicorette Gum. In the letter, CDER permits the sale of Nicorette
with conditions, including: "Restriction of distribution to drugstores,
mass merchandisers and supermarkets where other OTC drugs are sold.
The products will not be distributed to other channels, including
convenience stores or vending machines." Also, the CDER letter states:
"'Trial size' or 'sample' packs will not be offered." See
http://www.fda.gov/cder/foi/nda/98/18-612S025_Nicorette_Approv.pdf
to read the letter.
Daines' petition was based on four grounds:
1) OTC NRT should be more widely available to bolster use of OTC
NRT, quit attempts, and quit success; 2) adolescents will not abuse
OTC NRT; 3) OTC NRT is safer than cigarettes; and 4) OTC NRT used
for "temporary smoking restriction in order to moderate transient
withdrawal, as a substitute for smoking, and concomitantly with
cigarette use in order to reduce consumption ... is safe and even
desirable to advance public health."
To read the petition, see
http://www2a.cdc.gov/phlp/docs/Code%20of%20Federal%20Regulations.pdf.
___________________________________________________________
The CDC Public Health Law News is
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The News is published by the Public
Health Law Program, Office of the Chief of Public Health Practice,
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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.
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