Special Section -- Public Health

Krause and Savor Join Institute Faculty
 

Joan Krause Richard Saver

Joan Krause and Richard S. Saver will be joining the faculty of the University of Houston Law Center’s Health Law & Policy Institute beginning in July 2001. Joan Krause received her B.A. with Honors in Political Science from Yale University, where she graduated summa cum laude and was elected to Phi Beta Kappa. She received her J.D. with Distinction from Stanford Law School, where she was elected to the Order of the Coif and served as Senior Articles Editor for the Stanford Law and Policy Review. Before attending law school, Professor Krause worked as a medical writer/editor in the pharmaceutical industry. After law school, she served as a law clerk for the Honorable Dorothy W. Nelson of the United States Court of Appeals for the Ninth Circuit. Professor Krause then worked as an associate in the Health Practice Group of Hogan & Hartson L.L.P. in Washington, DC, where she focused on regulatory and administrative health care matters with an emphasis on health care fraud and abuse. Professor Krause hasserved as an Assistant Professor of Law at the Loyola University of Chicago. Professor Krause has taught Introduction to Health Law, Medicare, Criminal Law, and a seminar on White Collar Crime in Health Care. Her research interests include health law, criminal law, and women and the law. She will join the Law Center as Associate Professor of Law.

Richard S. Saver received his B.A. (1987) summa cum laude from Harvard University in History and Science (Biology) and his J.D. (1992) with distinction from Stanford Law School, where he was a member of the Stanford Law Review. Following law school, he clerked for Judge Eugene Wright on the United States Court of Appeals for the Ninth Circuit. He then practiced in the health law department of McDermott, Will, & Emery in Washington, D.C.

Next, Professor Saver served as Associate General Counsel for the University of Chicago Hospitals and Health System, working on a variety of regulatory, transactional, and patient-care issues. He also served as counsel to the University of Chicago’s human subjects research review committee (the University’s Institutional Review Board). Professor Saver has also lectured on health law topics within the University of Chicago Medical Center, participating in various educational programs with medical staff, clinical ethics fellows, residents, and medical students.

Professor Saver’s areas of research and teaching interest include health care transactions, biomedical research and technology, nonprofit organizations, public health, and torts. He will join the Law Center as Assistant Professor of Law.

"The Law Center is engaged in an ambitious plan to strengthen the Health Law & Policy Institute. We are thrilled that Professors Krause and Saver will join our efforts. Both have impressive records of practice experience, scholarship, and teaching," said Mary Anne Bobinski, Director of the Health Law & Policy Institute. The Law Center expects to engage in additional hiring in the health law area over the next few years.

Marian Wright Edelman Delivers Jenkens & Gilchrist Lecture 2001

Marian Wright Edelman

On February 21, 2001, the Health Law & Policy Institute presented the Jenkens & Gilchrist Lecture 2001, featuring Marian Wright Edelman, founder and president of the Children's Defense Fund. She noted that 24% of Texas children lacked health insurance and urged Texas to lead the nation rather than lag behind the nation. Ms. Edelman championed outreach to those entitled to health coverage and simplification of the application process for health insurance programs.

Ms. Edelman's speech was preceded by a continental breakfast and a panel discussion on Health Issues for Texas' Kids. Members of the panel included: Barbara McCormick, acting president and chief executive officer of Children at Risk; Dr. Vandna S. Patel, staff pediatrician with the Houston Department of Health and Human Services; Sadie M. Rucker, special assistant to Texas Senator Rodney Ellis; and Dr. Sheryl T. Dasco, attorney with Jenkens & Gilchrist.

Marian Wright Edelman has been an advocate for disadvantaged Americans for her entire career. Under her leadership the CDF has become a strong national voice for children and families. CDF's mission is to "Leave No Child Behind."

Edelman Lecture Featured in Inaugural Issue of Houston Journal of Health Law & Policy

More than 350 people from around the country listened as nationally renowned children’s advocate Marian Wright Edelman stressed the need to "Leave No Child Behind" at the Health Law & Policy Institute’s symposium in February.

The founder and President of the Children’s Defense Fund, Edelman, emphasized the importance for both family and community support to ensure every child has a "healthy start, a head start, a fair start, a safe start, and a moral start in life."

Edelman’s dynamic lecture will be the lead essay in the inaugural symposium issue of the Houston Journal of Health Law & Policy. "Children's health care issues are a growing concern throughout the nation, and we are excited about the opportunity the symposium provides to address these issues. The symposium contributors are the preeminent scholars in this subject," explained UH Law Professor Mary Anne Bobinski, Director of the Health Law & Policy Institute and faculty editor of the Journal.

In addition to Edelman, symposium authors include: Ellen Wright Clayton, M.D., J.D., Professor of Pediatrics & Law, Vanderbilt University; Sara Rosenbaum, J.D., Harold & Jane Hirsch Professor of Health Law & Policy, George Washington School of Public Health; Kathleen M. Boozang, Associate Dean for Academic Affairs, Professor of Law, and Director of the Health Law & Policy Program at Seton Hall University; and Abigail English, J.D., Director of the Center for Adolescent Health and the Law.

The Journal is now located in its permanent office located in the Bates Law Building, Suite 19. The three-room suite houses a common area, computer room and editorial offices. For more information on how to order the inaugural issue of the Houston Journal of Health Law & Policy, please turn to the back of this newsletter for an order form or for more information go to http://www.law.uh.edu/hjhlp/subscription.html. The Journal will publish two hard-bound issues each year.

Journal Begins Recruiting Candidates for Next Year

On January 25, 2001, the Journal held an informational session and lunch to recruit prospective first year law students to become Journal candidates next year. Professor Bobinski spoke to the group about the Journal and health law classes. Barbara Williams, assistant director of the Institute, also spoke about the health law clinic offerings. A session was also held in the evening for night students.

Institute's New Research Offices Open

Professor Ron Scott in his new office

The Institute's new research offices were completed in December of 2000. The new space, which includes four research faculty offices and a Legislative Service Office, is located on the second floor of Teaching Unit 2 at the University of Houston Law Center, just upstairs from the main Health Law & Policy Institute offices and library. Research professors Phyllis Griffin Epps, Melanie Margolis, Ronald Scott, and Joe Wang moved into the new space when it was completed late last year.

Houston Endowment Inc., Texas' largest private philanthropic foundation, contributed $350,000 to the University of Houston Law Center, a portion of which was allocated to support the Health Law & Policy Institute. The funds designated for the Institute were provided to expand the research space and mission of the Institute. The additional space enhances the Institute's ability to conduct Health Law & Policy research and to take on new research activities funded by other outside sources.

New LL.M. Students

New Students Join Health law Masters Program in Spring Semester

John Powell, Pam Nix, Ana Cowan,
Lucinda Daniels, Emilie Farenthold, and Harvey "Rock" Navrkal

Six new students recently joined the University of Houston Law Center's health law masters program. They began their course of study in January 2001.

Ana Elizabeth Cowan received her B.S. at Trinity University in 1997 and her J.D. at the University of Texas in 2000. She worked for Legal Aid of Central Texas while in law school.

Lucinda R. Daniels received her B.S. at the University of Houstonin 1996 and her J.D. at the Thurgood Marshall School of Law in 2000. She serves as Director of Legal Affairs for the St. Hope Foundation, Inc.

Pamela J. Nix received a B.S. from Arkansas Tech University in 1985 and a J.D. from the University of Tulsa in 2001. She was a member of the Tulsa Law Journal staff. She is also a certified public accountant. Her experience includes working as Chief Financial Officer of PhyCor of Chickasha dba Southern Plains Medical Center and working for the University of Tulsa Legal Clinic's Health Law Project.

Harvey "Rock" Navrkal, M.D. received his B.S. at Creighton University in 1986, his M.D. at University of Nebraska in 1990, his J.D. at the University of Texas in 2000, and his M.P.H. at the University of Texas Health Science Center at San Antonio in 2000. He completed his internship at the University of Nebraska, Lincoln in 1991 and the University of Colorado Family Medicine Residency Program in Fort Collins, Colorado in 1994. Prior to joining the health law masters program, he worked as President of Medical Law Consultants in Bedford and Austin, Texas.

John Powell III received his B.S. at Southwest Missouri State University in 1992 and his J.D. at the University of Tulsa College of Law in 1997. Prior to joining the health law masters program, he was affiliated with the law firm John Powell & Associates.

Emilie Farenthold received her A.B. at Vassar College in 1976 and her J.D. at the University of Texas in 1980. Prior to joining the masters program, she practiced oil and gas law and litigation. Most recently, she served as Assistant Attorney General for the State of Texas preparing letter rulings in response to requests from governmental bodies.

Focus on an Adjunct Professor

D'Andra Millsap Shu

D'Andra Millsap Shu teaches Disabilities Law at the University of Houston Law Center. She is an Associate in the Labor and Employment Section of the Trial Department of the Houston office of Baker Botts LLP. She received her bachelor's degree from Weber State University in 1993 and her law degree in 1996 from the University of Houston Law Center, where she was Editor in Chief for the Houston Law Review (1995-1996).

Ms. Shu served as Law Clerk to Fifth Circuit Court of Appeals Judge Carolyn Dineen King (1996-1997). She is admitted to practice in all Texas courts; Fifth Circuit Court of Appeals; and the United States District Courts for the Eastern, Northern, Southern, and Western Districts of Texas.

Articles by Ms. Shu include: Sex, Lies, and Health Insurance: Employer-Provided Health Insurance Coverage of Abortion and Infertility Services and the ADA, 22 Am. J. L. & Med. 51 (1996); and Reasonable Accommodation of Pregnancy in the Workplace: A Proposal to Amend the Pregnancy Discrimination Act, 32 Hous. L. Rev. 1411 (1996).

Ms. Shu is a member of the American Bar Association, Labor & Employment Section and Young Lawyers Division; Bar Association of the Federal Fifth Circuit; the State Bar of Texas, Appellate Practice & Advocacy and Labor & Employment Law sections; Houston Bar Association, Appellate Practice and Labor & Employment sections; and the Houston Young Lawyers Association.

Book Review

If the book "Public Health Law: Power, Duty, Restraint" by Lawrence O. Gostin were the answer to some sort of ghastly, mammoth exam question about public health law, there is no question but that it would receive an A+. Gostin’s latest work displays mastery in spotting critical issues, stating the rules, applying them to contemporary controversies, and stating succinct conclusions. The book evidences an encyclopedic knowledge of legal history, of primary and secondary legal authority. It manages to retain excellent organization through an ambitious conception of public health as spanning broadly from administrative law, to constitutional law, to torts. In these important regards the book surpasses even the elevated expectations generated when one of the nation’s leading experts in public health law restates his thoughts on the subject.

Particularly interesting is Gostin’s final chapter, in which he draws on his mountain of materials to consider at a general level how public health reform might best occur in the United States. Seeming to identify himself more as a "sanitarian" than a classic civil libertarian, Gostin argues for reinvigorating public health authorities under modernized statutes. These agencies, he contends, should occasionally act paternalistically, forcing, for example, people to wear seatbelts or receive vaccines that may not be in their individual interest. The invigorated agencies should also be burdened, Gostin argues, with an affirmative obligation to improve public health -- although Gostin defers discussion as to the precise contours of this controversial obligation. Noting earlier that today’s problems of bioterrorism, pollution and infectious disease seldom confine themselves to one state, Gostin argues for greater uniformity among states in their treatment of public health problems. Having criticized the Supreme Court for recent decisions giving a crabbed interpretation of the Americans with Disabilities Act, he argues that states should provide broader protections against discrimination.

Those hoping for more provocative ideas from Gostin about new directions in public health are likely to be disappointed by this book. In general, the conclusions it reaches, even in the final chapter, are stated at a high level of generality that seldom depart in any obvious way far from prevailing moderate wisdom. But for academics and legal practitioners looking for a reference that admirably combines history, authority, and solid mainstream reasoning, Gostin’s latest work will repay its purchase price many times.

From the Web

This article first appeared in Health Law Perspectives on the Health Law & Policy Institute’s Web site at on February 18, 2001.

Regulation of Smoking in Restaurants

Ronald L. Scott
Research Professor
Rscott@central.uh.edu

House Bill 290 was recently filed by Representative Maxey in the 77^th Texas Legislature. It would prohibit smoking in restaurants that derive 75% or more of their revenue from the sale of food and beverages for on-premises consumption, excluding alcoholic beverages. An offense under the bill would be a Class C misdemeanor. Additionally, a person in charge of a restaurant would be required to make a reasonable effort to prevent smoking in the restaurant and violations could result in civil penalties of up to $500. Smoking would be allowed in outdoor portions of a restaurant.

Forty-eight states and the District of Columbia have enacted laws that restrict smoking in public places. See American Lung Association, State Legislated Actions on Tobacco Issues (1999) ("SLATI"). These laws range from comprehensive clean indoor air acts that restrict or prohibit smoking in virtually all public places, including workplaces, to more limited regulations (e.g., prohibiting smoking on school buses). According to the Centers for Disease Control and Prevention (CDC), 31 states have laws regulating smoking in restaurants.

Texas has no law regulating smoking in restaurants. In 1975, Texas first enacted legislation restricting smoking in certain public places including primary and secondary schools, elevators, theaters, movie houses, libraries, museums, hospitals, and some buses. See Tex. Penal Code Ann. § 48.01 (Vernon 1994). SLATI characterizes 14 states, including Texas, as having "minimal" restrictions on smoking in public places. Only Mississippi and Alabama have no restrictions on smoking in public places.

A significant development in tobacco control policy is the Environmental Protection Agency’s (EPA) designation of second-hand smoke as a "Class A" carcinogen. See Fact Sheet on Respiratory Health Effects of Passive Smoking at http://www.epa.gov/iedweb00/pubs/etsfs.html. The EPA has made the following findings regarding second-hand smoke:

• It is a human lung carcinogen.

• It is responsible for approximately 3,000 lung cancer deaths annually in adult U.S. nonsmokers.

• It is causally associated with an increased risk of lower respiratory tract infections in children (estimating that 150,000 to 300,000 cases in infants and young children up to eighteen months of age are attributable to second-hand smoke annually).

• It is causally associated with increased prevalence of fluid in the middle ear, symptoms of upper respiratory tract irritation and a small but significant reduction in lung function in children.
• It is causally associated with additional episodes and increased severity of symptoms in children with asthma (estimating that 200,000 to 1,000,000 asthmatic children’s condition is worsened by second-hand smoke exposure).
• It is a risk factor for new cases of asthma in children who have not displayed symptoms previously.

A Texas "Opinion Leaders Survey" recently conducted by the University of Houston found that 84% of respondents think the Texas Legislature should adopt a statewide smoke-free ban for workplaces and public buildings, and a majority think laws and controls of tobacco should be set at the state level. While tobacco prevention and control efforts may focus on programmatic issues such as public education, community-based programs, cessation efforts, school based programs, and enforcement, a number of related policy efforts have proven effective in reducing tobacco use when used as part of a comprehensive strategy. These policies include new restrictions on environmental tobacco smoke in public places.

Low Appointed to Health Advisory Council in Alberta, Canada

Dr. M. David Low, professor and director of the Center for Society and Population Health at the University of Texas School of Public Health at Houston, has been appointed by Premier Ralph Klein to the Premier's Advisory Council on Health for the province of Alberta, Canada. The mission of the council is to provide strategic advice to the Premier on the preservation and future enhancement of quality health service for the citizens of Alberta and on the continuing sustainability of the publicly funded and publicly administered health system. The council was formed last year and is composed of 12 health policy experts.

Dr. Low, the only American on the council, is a native of Alberta. He served as President of the University of Texas Health Science Center at Houston from August 1989 to August 2000. Dr. Low is a member of the Health Law & Policy Institute advisory board.

Casscells Named to Endowed Position

Dr. S. Ward Casscells has been named the John Edward Tyson Distinguished Professor in Cardiology at the University of Texas Medical School at Houston, Department of Internal Medicine, Cardiology Division. Dr. Casscells is the Director of the Division of Cardiology and has been recognized nationally for his research, teaching, and patient care. He is a member of the Health Law & Policy Institute Advisory Board.

FACULTY NEWS

Mary Anne Bobinski

was interviewed on KRW-FM radio, Health Law & Policy, Houston, Texas, February 17, 2001;

was accepted to a two week program on higher education management sponsored by the Harvard Graduate School of Education which she will attend in June, 2001;

was interviewed about her role as the new Director of the Health Law & Policy Institute in the January 25, 2001 University of Houston Daily Cougar. She was quoting as stating that "her first action will be to try to expand its reach to the general community, a pioneer idea for the Institute."

Presentations

Mary Anne Bobinski

Health Law Update, Houston Bar Association, Health Law Section, Houston, Texas, March 16, 2001

Moderator, Health Care Issues, Families in Crisis Conference, Houston, Texas, March 23, 2001

Moderator and Coordinator, Children's Health Panel Discussion, Collegium Live Series, University of Houston, Houston, Texas, April 5, 2001

William J. Winslade

"Futility, Patient Preferences, and Quality of Life," Person-Centered Care and Cancer Survivorship Conference, sponsored by CanCare (Cancer Support Network and The University of Texas-Houston Health Science Center School of Nursing, Houston, Texas, February 24, 2001

Phyllis Griffin Epps

"Overview of the Health Law & Policy Institute," Introduction to Health Care Professions Class, University of Houston, February 15, 2001

Ronald L. Scott

"Health Care Privacy & the Internet," luncheon keynote address for Medical and Health Care Litigation Symposium, The Review of Litigation, Austin, Texas, March 2, 2001

Faculty Publications

Mary Anne Bobinski

"Health Law Leadership," Collegium Magazine, March 2001

Focus on our Graduates

Michael S. Ewer (J.D. Candidate) wrote "The Definition of Medical Futility: Are We Trying to Define the Wrong Term?" in Heart and Lung, Vol. 30, No. 1 (January/February 2001) and "Blood Transfusion Violates Patient's Beliefs," in Health Law Report (January 2001).

Barbara J. Williams (LL.M. '00) wrote "Virtual Web Wave of the Future: Integration of Healthcare Systems on the Internet," which was recently published in the North Dakota Law Review, Vol. 76:2 (2000).

Special Section -- Public Health
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Public Health Law and Ethics: A Renaissance

Lawrence O. Gostin, J.D., LL.D (Hon.)
Professor of Law, Georgetown University
Professor of Public Health, the Johns Hopkins University
Director, Center for Law & the Public's Health

The Progressive era in late 19^th and early 20^th Century America was a time of major innovation as well as keen lay and scholarly interest in the field of public health. There was also considerable attention given to public health law during that time period with important books and articles written. Since that time, America has become much more focused on high technology medicine and on the salience of individual rights and interests--autonomy, privacy, liberty, and economic freedoms. We now see public health agencies, like all government, as inefficient and an impediment to personal freedom and economic prosperity. Somehow we have lost sight of the collective values of public health and the social contract. In the surge of interest in individual rights, we have forgotten the duty that each person owes, one to another, to ensure mutual health, safety, and security.

The field of public health law, however, is experiencing a renaissance in the early 21^st Century. Consider these important developments. The CDC, as Gene Matthews thoughtfully explains, has developed a Public Health Law Program headed by Anthony Moulton and a Public Health Law Collaborative (<www.phppo.cdc.gov/phlawnet>). Recently, the CDC designated Johns Hopkins and Georgetown Universities as the CDC Collaborating Center on Law & the Public's Health (<www.publichealthlaw.net>). The CDC, the Collaborative, and the new Center are developing a national research agenda, state-of-the-art assessments on important problems in public health, and wide ranging initiatives in scholarship, training and education. I have recently completed two books that are intended for use in teaching and scholarship in Schools of Law, Medicine, Public Health, and Health Administration (see the book review by Seth J. Chandler): Public Health Law: Power, Duty, Restraint (2000) and Public Health Law & Ethics: A Reader (Forthcoming January 2002) (University of California Press and the Milbank Memorial Fund). Finally, Robert Wood Johnson's Turning Point project is currently developing a model state public health law (< (http://www.hss.state.ak.us/dph/APHIP/ collaborative>).

The related field of public health ethics similarly has been rejuvenated. The Hastings Center and the Association of Schools of Public Health have each commenced important projects to develop model curricula and related scholarship in the field.

In reading this important issue of Health Law News, it will be helpful explore the meaning of public health and how it is different from medicine and personal health care. In 1988, the Institute of Medicine (IOM) proposed an influential definition in The Future of Public Health: "Public health is what we, as a society, do collectively to assure the conditions for people to be healthy." The IOM's definition emphasizes the collective responsibility of organized society to promote the health of the population. Public health concerns those activities and services designed to prevent injury and disease and promote health throughout the population by creating the essential conditions of health. Each of us, if we have the resources, can purchase health care services, shelter, and clothing. But only society as a whole can assure uncontaminated food and water, a clean environment, safe products, healthy workplaces, and control of infectious diseases. In February 2001, the IOM formed a major study committee to make recommendations on Assuring the Health of the Public in the 21^st Century.

The articles in this issue of Health Law News demonstrate the breath and vibrancy of public health law. Nancy Lemon deals with the important and controversial issue of domestic violence as a public health issue. Violence has often been seen purely as a matter for the criminal justice system but, as Ms. Lemon articulately demonstrates, it has profound public health significance. Arnold Reitze examines the essential issue of air pollution control in the new millennium. The air and water are common-pool resources that are vital to the health of current and future generations. He ably explains the threats of global warming and the legal tools needed to maintain a healthy environment. Finally, Danny McGoldrick uses tobacco litigation and legislation as models for public health policy. There is perhaps no field that demonstrates the role of law as a tool for the public's health as well tobacco control. At the national level, the Global Tobacco settlement has been a landmark in public health law reform; at the international level, the World Health Organization is moving toward a ground-breaking Framework Convention on Tobacco Control.

Most scholarship in health law is devoted to medicine and health care services--clinical decision-making, delivery, organization, and finance. Personal medical services are an important part of what makes a community healthy. Yet, medicine is only one contributor to health and, at that, probably only a relatively small contributor. Virtually all of national health expenditures (excluding environmental funding) are devoted to medical care; only about 1% is allocated to population-based public health initiatives.

Sound scholarship and education in law and ethics can change the complacency in the United States about the importance of population health. I hope that in reading this issue of Health Law News, scholars, students and practitioners will become engaged in this subject and actively pursue law as a tool to improve the public's health.

Gene W. Matthews
Legal Advisor
Centers for Disease Control and Prevention

This is an exciting time in public health law. This issue of Health Law News contains a comment by Larry Gostin, who has recently published a number of manuscripts in this field. These efforts, together with current work by other scholars, serve as examples of the growing interest by many different stakeholders about the intersections of law and the practice of public health.

The Centers for Disease Control and Prevention (CDC) is now focusing more attention on the value that can be added to public health practice through collaborative efforts to examine and improve laws at the federal, state, and local levels. These improvements to public health are demonstrated by (1) increased attention to the laws that assist infectious disease control, (2) better understanding of the role of law in helping prevent other non-infectious diseases and conditions, and (3) the initiation of CDC’s own Public Health Law Program.

1. The Law and Emerging Infections:


Recent media coverage has highlighted the problems that new and emerging infections pose to society. West Nile virus outbreaks over the past two summers in the Northeast have increased public awareness and also have resulted in litigation over controlling the disease through aerial spraying for mosquitoes. Outbreaks of Ebola virus in central Africa have raised concerns about legal procedures for screening international travelers who might spread infectious hemorrhagic fevers. Bioterrorism threats have caused the reevaluation of many aspects of public health preparedness. It is expected that state and local officials, who would be the first decision-makers in a bioterrorism situation, would need to accurately exercise their residual emergency health powers in order to close a contaminated facility and to control the spread of a dangerous infectious disease. It should be noted that many of these state emergency health powers are contained in statutes that have not been changed, or used, in over 50 years. Efforts are now underway to reexamine these laws, based upon current medical and legal standards.
 

2. The Law Assisting In Other Public Health Circumstances:


Proceeding beyond infectious disease situations, legal strategies provide key assistance in reducing morbidity and mortality in such fields as chronic disease prevention, occupational health, environmental protection, immunization coverage, injury prevention, and smoking cessation programs. For example, state statutes can assure that school children are properly immunized or that cases of eldercare abuse are reported. Administrative rules and regulations can encourage the design and development of safer and more livable communities. Managed care contracts are being fine-tuned to reinforce prevention activities, thereby reducing health care costs and improving our quality of life. Exciting research is now underway to demonstrate how specific changes in the law can impact the health of the community.
 

3. The CDC Public Health Law Program:


The CDC Public Health Law Program was created in 2000 to improve the understanding and use of laws as tools of public health. Efforts are underway in a number of areas:

--Research. CDC has inaugurated a research strategy, and peer-reviewed extramural grants have been awarded to examine the impact of specific laws on many of the topics described above.

--Training. Up-to-date training in public health legal issues can assist health professionals, and the attorneys who serve them, in understanding the relevance of law to their public service mission. Initial areas include administrative law, privacy and confidentiality, and disease reporting.

--Information. Improved information sharing can facilitate effective implementation of public health laws by identifying successful innovations and exchanging information about best practices.

--Partnerships. Most importantly, CDC is helping found the concept of a "Public Health Law Collaborative" consisting of (a) public health agencies, (b) attorneys, (c) academia, and (d) non-profit organizations, all working to assure the improvement of public health through effective laws, expertise, and timely access to law-related information. This key concept was first articulated in meetings at CDC last year with interested external partners. The ongoing vision of a "Public Health Law Collaborative" is to nurture the growth of "nodes of expertise" in this field and then connect such growing expertise with public health practitioners, especially those at the state and local level.

________________________________________________________

The views expressed herein are those of the author and do not necessarily represent the official policy of the U.S. Department of Health and Human Services, the Centers for Disease Control and Prevention, or the Office of the General Counsel.

For more information about the CDC Public Health Law Program and to learn how to join the "Public Health Law Collaborative" please contact CDC at 770-488-2404 or visit http://www.phppo.cdc.gov/phlawnet.
________________________________________________________

Arnold W. Reitze, Jr.
J.B. and Maurice C. Shapiro
Professor of Environmental Law
The George Washington University
Special Consulting Counsel to LeBoeuf, Lamb, Greene & MacRae,
Washington, D.C.

Since 1970 the Clean Air Act (CAA) has pursued two primary strategies to clean up the nation's ambient air. The first strategy is to impose controls on stationary sources aimed at reducing the atmospheric concentration of "criteria pollutants" -B particulate matter, sulfur dioxide, nitrogen dioxide, ozone, carbon monoxide and lead. This program was designed at the federal level, but is usually implemented by the states, which use construction permits and operating permits to impose controls on emission sources. The second strategy is aimed at the control of emissions from new motor vehicles. This program is primarily implemented at the federal level, except in California, with the states being relegated to the more limited role of controlling emission from in-use vehicles.

The CAA was amended in 1977 to provide a program to protect clean areas where air quality does not adversely affect public health and a program to impose more stringent requirements in areas where health-based standards were being violated. The CAA Act was amended again in 1990 to create a more complex statute that expanded the approaches of the 1970 and 1977 CAA Amendments. The 1990 CAA Amendments added new programs to create an operating permit program, to protect stratospheric ozone, to provide a sulfur dioxide emissions trading program for electric utilities, and to create a substantially more comprehensive program for the control of hazardous air pollutants. The 1990 CAA Amendments also imposed more stringent controls on conventional vehicles; provided new controls on gasoline and diesel fuels to reduce air pollution emissions; created a program to encourage the development of "clean fuel" vehicles; and added controls on nonroad mobile sources, such as trains, ships, and mobile equipment.

The air pollution control program in the United States has been successful. The ambient air concentration of all criteria pollutants has decreased since 1978 -- ranging from a twenty-five percent decrease for nitrogen dioxide to a ninety-seven percent decrease for lead. The actual emissions of criteria pollutants have decreased by comparable amounts, except for nitrogen dioxide which has increased by eleven percent. A major contribution to air quality improvement is the decrease in emissions from highway vehicles from 1970 to 1998 by over forty percent for carbon monoxide and by nearly sixty percent for volatile organic compounds.

While air quality has improved, the challenge is to continue to keep air pollution below the levels that produce significant adverse health effects. To protect air quality is analogous to the challenge facing health professionals trying to improve the health of a population that wants to smoke, eat a high fat diet, and not exercise. In dealing with air pollution the challenge is to protect the public health of a continuously expanding population that is "high" on energy consumption.

In 1970, when the modern air pollution program began, the population in the United States was about 205 million; in 2000 it had grown to over 281 million. In 1970 Americans drove about 1.10 trillion miles; in 1997 the vehicle miles driven had increased to 2.56 trillion miles. In 1970 there were 89.244 million automobiles and 14.211 million light trucks registered in the United States; in 1997 the number had increased to 129.749 million automobiles and 70.224 million light trucks. Improvement on automobile fuel efficiency have ameliorated some of the adverse effects of the growth in vehicle travel, but this has been partially offset by the increased substitution of light trucks for automobiles. The fossil fuel used for transportation increased from 16.04 quads in 1970 to 24.25 quads in 1998 and represents about two-thirds of the petroleum consumed in the United States. The reason that air quality in the United States has improved despite more vehicles being driven more miles is that new technologies have significantly reduced emissions per vehicle mile traveled.

Air pollution from stationary sources also is driven by consumer demand for products and energy, and electric power generation is the most important stationary source category of air pollution. Fossil fuel combustion is used to produce about sixty-nine percent of the electricity generated in the United States. Coal-fired electric power plants, most of which were constructed prior to 1979, produce about 60% of the nation's emissions of sulfur dioxide, as well as about 25% of the nitrogen oxides, 33% of the mercury, and 32% of the carbon dioxide emissions. In 1970 the electric power industry generated 1,513.9 billion kilowatt hours of electricity; in 1997 this figure had more than doubled to 3,125.5 billion kilowatt-hours.

To deal with the ongoing threat to human health and to protect our ecosystems has led to new efforts to control air pollution from sources that in the past escaped stringent control. Prior to 1990, the effort to control stationary source air pollution was aimed primarily at sources of the six criteria pollutants and their chemical precursors. Other pollutants, notably hazardous pollutants that threaten public health in low concentrations, were subject to few specific controls. The 1990 CAA Amendments created a list of 189 hazardous air pollutants that were to be evaluated for control by the Environmental Protection Agency (EPA). The EPA was to promulgate regulations for the various industries that require the use of the maximum available control technology (MACT) that is appropriate for each industry. To date, the EPA has promulgated approximately 50 final MACT regulations. These regulations have resulted in a major shift in direction for the CAA with less emphasis on atmospheric concentrations of pollutants and more emphasis on using the best technology to control hazardous emissions. However, the CAA also provides for additional controls on hazardous air pollutant emissions if necessary to protect public health.

The CAA when originally enacted provided for developing stringent standards applicable to new stationary sources, but significantly less stringent standards were imposed on existing stationary sources. The expectation was that over time the new source standards would become the generally applicable standard as old facilities were replaced by new facilities. Unfortunately, the advantages of avoiding expensive air pollution controls has helped keep existing dirty facilities operating beyond their expected useful life. Since the end of 1998 the EPA has pursued an aggressive enforcement effort aimed primarily at old electric power generating plants by seeking to have maintenance and repairs of old facilities deemed to be "modifications" which under the CAA trigger the applicability of new source standards. This government effort has had some notable successes, and if this program is continued under the new Bush administration it could have a positive effect on air quality.

The most significant unknown concerning air quality involves the global warming issue. The combustion of fossil fuels produces carbon dioxide, a global warming gas, even if there is no other air pollution. The CAA does not cover emissions of carbon dioxide. The effort to develop a global regime to control global warming gases so far has failed, and there is no national consensus on how to proceed.

From 1970-2000 air pollution was controlled using technology-based approaches. Automobiles were designed to run cleaner; electric power plants, as well as other industries, installed air pollution control devices and combusted cleaner fuels. In the future, improved technology will continue to be adopted, and emission standards will continue to become more stringent. However, we cannot indefinitely protect the public health using quick technology fixes when the underlying causes of air pollution continue their steady exponential growth.

While future developments are difficult to accurately prognosticate, the marginal costs of attempting to control air pollution in the way it has been controlled in the past are pressuring public and private decision makers to seek more imaginative solutions. Environmental concerns need to be a more important component of our energy, transportation, and land use policies and programs. Air pollution problems are unlikely to go away, and the solutions may involve more profound life-style changes than have been required by the existing air pollution control programs. Solutions are going to require an interdisciplinary approach to be successful and will require more consideration of economic impacts than has occurred in the past, but building the necessary public consensus will be the major challenge.

©Arnold W. Reitze, Jr.

Time for Action on Tobacco

Danny McGoldrick
Director, Research
Campaign for Tobacco-Free Kids

There is no bigger step we can take to improve the public health than to continue to take on the problem of tobacco use with great vigor. The good news is that there are proven strategies for doing so, but we have to act now. If states invest just a portion of their tobacco settlement money in comprehensive tobacco prevention programs, they will save lives and dollars by reducing smoking among both kids and adults. These programs must be complemented by effective policies at the state and federal level. It is particularly critical that the U.S. Food and Drug Administration be given the authority to regulate tobacco in order to restrict deceptive marketing practices and marketing aimed at children, to limit kids’ access to tobacco, and to require that tobacco products are manufactured in ways that produce the least harm to those who become addicted to them.

Tobacco use remains the leading preventable cause of death in the United States, killing over 400,000 Americans each year. It accounts for 30 percent of all cancer deaths and 87 percent of all lung cancer cases, as well as 20 percent of all deaths from heart disease, and a majority of the deaths from emphysema and chronic bronchitis. It results in $89 billion in unnecessary health care costs in the U. S. each year. What's worse is that almost 90 percent of all smokers start as kids, when they begin what is often a lifelong battle with addiction, illness, and ultimately death. Three thousand kids become regular smokers every day in this country, and even accounting for those who will quit, one-third will die an early death caused by their addiction to tobacco.

The Opportunity Presented by the Master Settlement Agreement (MSA)

The tobacco companies have spent hundreds of millions of dollars since the Master Settlement Agreement (MSA) in late 1998 to convince policy makers and the American public that they have changed and that the tobacco problem is being solved. We believe them at our peril. In fact, the MSA affects only a small proportion of the $7 billion that the tobacco companies spend every year ($18 million each day) on the marketing and promotion of their deadly and addictive product, much of it aimed at kids. To the contrary, studies have shown that the cigarette companies actually increased their advertising in magazines with large numbers of youth readers in the year after the agreement was signed. In addition, despite the $246 billion in payments to the states over the first 25 years of these settlements, the MSA does not require the states to spend one dime on comprehensive tobacco prevention programs that have proven effective in the states like California, Massachusetts, and Florida that have implemented them. Finally, the agreement still preserves the special status of tobacco products as the only food or drug not regulated by the U. S. Food & Drug Administration.

The best opportunity provided by the Master Settlement Agreement to reduce tobacco use is for states to invest part of their settlement payments in comprehensive tobacco prevention programs. These integrated programs, which include public education through hard-hitting media campaigns, community and school-based programs, help for smokers who want to quit, and strict enforcement of youth access laws have resulted in dramatic reductions in tobacco use in states like California, Massachusetts, Florida, and a handful of others. However, as indicated in a recent report (www.tobaccofreekids.org), only six states have used settlement funds or other sources to fund tobacco prevention programs at even the minimum level recommended by the Centers for Disease Control and Prevention. If state legislatures continue to fail to appropriate settlement funds for tobacco prevention programs that work, the opportunity afforded by the MSA will be missed.

The Need for FDA Authority over Tobacco

Despite the fact that tobacco products are so lethal and addictive, they remain the only products consumed by Americans that are not regulated by the Food and Drug Administration. This protected status, preserved for decades by the political and economic muscle of the tobacco industry, allows tobacco products to be marketed, manufactured, and sold in ways that no other food, drug, or medical device can be. Indeed, every other product manufactured by tobacco companies, like Kraft macaroni and cheese or Nabisco Oreos, and every product containing nicotine made by anyone other than a tobacco company, is fully regulated by the FDA.

The tobacco companies used the Courts to successfully fight the FDA's assertion of jurisdiction over tobacco products. Now, they will use their considerable political might, including millions in political contributions, friends in Congress and the administration, and an army of lobbyists, along with a continued massive public relations campaign, to resist real and effective regulation by the FDA, even as some tobacco companies claim to support it. It is critical that Congress and the Bush administration pass meaningful FDA legislation that gives the agency the authority, among other things, to 1) require ingredient disclosure and the removal or reduction of harmful and addictive components; 2) require the testing of the components of tobacco products, including additives, for safety just as with any other product; 3) evaluate health claims, including those relating to so-called "reduced risk" products to ensure such claims are substantiated and that they will not discourage quitting or encourage initiation; 4) encourage the development of products that reduce consumer health risks or serve as less harmful alternatives; 5) restrict youth access to tobacco products; and 6) limit tobacco marketing and promotion to minimize its impact on kids.

Perhaps neither the harm from tobacco, nor the opportunity to do something about it has ever been greater. Without proper regulatory oversight and effective programs to counter tobacco company marketing efforts, the companies will continue to market with free reign a product that they have known for decades is deadly, yet which they nonetheless manipulated to make even more addictive and that they aggressively marketed to children. And the toll will continue to mount.

Domestic violence, abuse between teen or adult intimate partners, is a public health issue, so severe that it has been called an epidemic. It is the most common cause of injury to adult women in the US. The AMA has estimated this problem as affecting 4 million women each year, and one in four US women over their lifetime. And of course, sometimes men are victims. Children in domestic violence homes are also in great danger of physical and emotional abuse, starting in utero.

Medical schools around the country are starting to address domestic violence. For example, California mandates that all medical, nursing, therapy, and social work students be provided with domestic violence training.

The first step in addressing domestic violence in the health care setting is to screen for it. Such screening is mandated by some states and is required of all Emergency Room departments by JCAHO. But even if this is not mandated, it is good practice to conduct universal screening in all primary care settings as well as in the ER.

With adults, health care workers can ask, "Have you been hit or scared since the last time I saw you?" Many facilities have incorporated a question about domestic violence on the intake form for all OB/GYN appointments. Posters and brochures about domestic violence should be placed in all women's bathrooms and outpatient visit rooms. Children should be screened at all well-child visits. If the child is young, the pediatrician can ask the parents about conflict resolution, disciplinary techniques, substance/alcohol abuse, weapons, and police coming to the house. If the child is old enough, the patient can be asked directly, "Have the police ever come to your home?"

If domestic violence is suspected or confirmed, the patient may or may not be willing to acknowledge that this has occurred. Either way, it is very important for health care workers to document what they observe in the medical record, and to use photos and body maps as well as a written description of the injuries, the story, and the identity of the abuser. This documentation can be very useful in the future, even if the patient is not now ready to leave.

Telling the patient, "You don't deserve to be abused!" can make a huge difference in her life.

If the patient is willing to talk with a health care worker, it is advisable for the worker to conduct safety planning with her, or to call in social workers or local domestic violence advocates to do this. This would include discussing a safe place to stay, restraining orders, legal help, counseling or support groups, financial help, etc. Other resources which doctors may be able to access for patients may include home visitation and public health nursing.

If the patient says she or he has not been abused, but a health care worker sees indicia of abuse, a health care worker may say, "I understand you may not want to talk to me about this, but usually if I see injuries like yours, it's because someone is being hurt by their partner. I want to give you this safety plan and hotline number."

If domestic violence is suspected or confirmed, the issue arises whether the doctor should report it to the police. In some states, this is mandated. In others, reports are made only for statistical purposes or are made to a social services agency. The issue of mandatory reporting is very controversial among health care professionals. Proponents argue that such reports can help stop the domestic violence by bringing it to the attention of the criminal justice system. Opponents point out that there may be severe consequences if the batterer finds out about the report, such as retaliation against the victim or refusal to allow the victim to go back to the doctor the next time she has injuries.

Reports to law enforcement may also trigger responses from the child welfare system, with the mother charged with "failure to protect" the children. It is critical to link intervention for domestic violence and child abuse, so that both the adult and child victims receive the help they need, rather than being further victimized.

Dealing with patients who have domestic violence issues can feel overwhelming at times. Medical workers can make a significant difference in stopping this epidemic. Many battered women will not call the police or a shelter or seek a restraining order. A non-judgmental response by health care workers can make a difference in terms of the patient's willingness to seek other types of help, or to come back for help in the future even if she is not now ready to leave her partner. But whether or not the patient decides to leave the abuser and is successful in accomplishing this, bringing up the topic of domestic violence, documenting injuries, telling the patient she does not deserve this, and giving out referrals and safety information may save a patient's life, or the life of her child.