Sarah Wetter

Falling short: how state laws can address health information exchange barriers and enablers

Objective Research on the implementation of health information exchange (HIE) organizations has identified both positive and negative effects of laws relating to governance, incentives, mandates, sustainability, stakeholder participation, patient engagement, privacy, confidentiality, and security. We fill a substantial research gap by describing whether comprehensive state and territorial HIE legal frameworks address identified legal facilitators and barriers. Materials and Methods We used the Westlaw database to identify state and territorial laws relating to HIEs in effect on June 7, 2016 (53 jurisdictions). We blind-coded all laws and addressed coding discrepancies in peer-review meetings. We recorded a consensus code for each law in a master database. We compared 20 HIE legal attributes with identified barriers to and enablers of HIE activity in the literature. Results Forty-two states, the District of Columbia, and 2 territories have laws relating to HIEs. On average, jurisdictions address 8.32 of the 20 criteria selected in statutes and regulations. Twenty jurisdictions unambiguously address ≤5 criteria in statutes and regulations. None of the significant legal criteria are unambiguously addressed in >60% of the 53 jurisdictions. Discussion Laws can be barriers to or enablers of HIEs. However, jurisdictions are not addressing many significant issues identified by researchers. Consequently, there is a substantial risk that existing legal frameworks are not adequately supporting HIEs. Conclusion The current evidence base is insufficient for comparative assessments or impact rankings of the various factors. However, the detailed Centers for Disease Control and Prevention dataset of HIE laws could enable investigations into the types of laws that promote or impede HIEs.

Taxing Sugar-Sweetened Beverages to Lower Childhood Obesity: Public Health and the Law.

Consumption of sugar-sweetened beverages (SSBs) contributes to multiple health problems including obesity, diabetes, and tooth decay, especially among children. Excise taxation has been proven efficacious in changing purchasing behaviors related to tobacco use with resulting improvements in public health outcomes. Similar taxes applied to SSBs are starting to take hold internationally and domestically. SSB taxes have been proposed in over 30 U.S. jurisdictions since 2009, but only Berkeley (CA) has passed and implemented one to date. Given empirical evidence of their effectiveness, governments should consider implementation of SSB excise taxes based on uniform definitions of SSBs and other factors.

Enforcing Federal Drug Laws in States Where Medical Marijuana Is Lawful

On January 4, 2018, Attorney General Jeff Sessions issued a memorandum immediately rescinding the Obama Administration’s long-standing guidance limiting federal enforcement of medical marijuana. Federal law creates harsh penalties for the cultivation, distribution, and possession of marijuana, which Sessions deemed a “dangerous drug” and a “serious crime.” The memorandum places physicians and patients at risk of arrest and prosecution in 29 states and the District of Columbia that have legalized medical use of marijuana (eTable in the Supplement). This Department of Justice (DOJ) guidance came at a time of increasing acceptance, accessibility, and use of cannabis and its derivatives. According to a 2015 nationwide survey, an estimated 22.2 million individuals in the United States aged 12 years or older reported cannabis use in the past 30 days; 90% said their primary use was recreational, with 10% solely for medical purposes; 36% reported mixed medical and recreational use. A 2017 national poll found that 61% of respondents support legalization of marijuana and 71% oppose federal enforcement. In 2016, an estimated 1.2 million adults accessed medicinal marijuana through state-licensed dispensaries or home cultivation.

Public health “preemption plus”

Few legal concepts engender more confusion and concern in public health circles than the doctrine of preemption. Simply stated, preemption refers to “how a state or local law may be averted, displaced, or negated by conflicting laws at a higher level of government.” Federal laws may preempt state or local laws because federal law is supreme. State laws can preempt local laws because local governments are controlled by sovereign states. Even some local governments may preempt laws among lesser municipalities. Understanding the concept of preemption is easy. Applying its principles to public health objectives, however, is complex. Preemption can facilitate or hinder public health goals. Federal preemption, for example, may be used to create a national floor for public health policies (e.g., menu labeling provisions). Conversely, preemption can thwart state or local public health legal and policy objectives. In the past several years, state legislatures have preempted local innovations in diverse public health areas including gun control, tobacco use, food policies, employment protections, and the environment. Emerging tactics fueled by industry and organized through advocacy groups evince a deeper realm of preemption policy. Through what we call “preemption plus” strategies, law- and policy-makers seek to control lower levels of government through actions that exceed traditional boundaries or specific targets of preemption and carry increasingly negative impacts. These schemes, including direct threats, fines, loss of funds, and de-authorizations, are gaining traction especially in public health arenas impacting big industries (e.g., tobacco, sugar sweetened beverages (SSBs)) or specific interests (e.g., rights to bear arms, religious freedom). Collectively, they can essentially force states or localities to comply with higher level policies that are antithetical to the public’s health. This manuscript explores these tactics at federal and state levels along with political and judicial arguments to address deleterious impacts on public health policy.