Author Archives: Harini Kidambi

California Law Requires Chefs to Wear Gloves

A California law (Section 113961 of the California Retail Food Code) that went into effect on January 1, 2014 prevents restaurant workers in the state from handling ready-to-eat food. (NBC Los Angeles, Inside Scoop SF)  The law was previously only a suggestion in the food safety code, and has now become a requirement.  (Inside Scoop SF)  This makes it difficult for establishments in the industry, such as delis and those serving sushi.  Additionally, the law impacts those cooks who work with breads, fresh fruits, vegetables, and any cooked parts of meals that must be put together for diners.  The law itself requires “chefs to wear single-use disposable gloves while working with prepared foods,” unless the establishment has attained previous approval from the local enforcement agency.  (NBC Los Angeles) Angelica Pappas, the spokeswoman for the California Restaurant Association, opined that the law was not unexpected, and that other states have similar rules, and California is simply catching up.

The purpose of the legislation that Governor Jerry Brown signed into law is to “curtail foodborne illnesses.” (LA Times)  However, this has caused many chefs in the state to say that the law is “confusing, ineffective, bad for the environment, and can compromise a final dish.” (LA Times)  In fact, Neal Fraser a chef based in the state, believes that the law could actually have the opposite impact of promoting food safety.  The Chef believes that the glove requirements will lead chefs to “not wash their hands” which then might increase food-related illness rather than to prevent it. (LA Times)  Jordan R. Berstein, an attorney who has been providing general counsel for restaurant clients, has attacked the law for its lack of clarity calling it a law that was intended to regulate fast food chains, but is now being applied to fine dining establishments. (LA Times, SCPR.org)

On the other than, not all chefs have such a problem with the law.  Niki Nakayama, who makes sushi at her restaurant, stated that “for the most part I use gloves through my whole preparation process and I have no problem wearing gloves for plating something.” (LA Times)  She too, however, stated that she did not know whether the cleanliness of the gloves would remain consistent, and whether it would actually achieve the law’s ultimate goal.  Aditionally, Mary C. Fitzgerald of Safe & Sound food safety consultants is in favor of the law and had stated that “it both raises awareness and raises the bar that everyone’s responsible to prevent foodborne illness.” (LA Times)

Like many restaurants, the law too will have a soft opening over the next six months meaning that restaurants who are not complying with the law will get only warnings rather than harsher violations on their inspection reports.  (LA Weekly, Inside Scoop SF)  The application for exception requires restaurants to show that they are not serving a “highly susceptible population.” (SCPR.org)  Despite this, no one at the Los Angeles County health department was available for comment regarding how specifically the department would seek to enforce regulations and afford exemptions.  (SCPR.org)

The new California law is yet another very interesting example of how the law has the power to impact our daily lives.  Though it is brand new, and therefore yet to be seen what impact the law will have on California restaurants and consumers, it is certain that the law has the potential to impact elements of the law, public health, and economics of the state.

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PPACA Contraceptive Coverage Challenge

On Tuesday, November 26, 2013, the Supreme Court granted certiorari to review portions of the Patient Protection Affordable Care Act requiring employers of a certain size to offer insurance coverage for birth control and other reproductive health services without a co-pay.  In enacting the Affordable Care Act, Congress required large employers who offered health care services to provide a range of preventative care, including no-copay contraceptive services.  However, religious nonprofits were exempted from this requirement, but not for-profit corporations. (NPR) The case will present the issue of whether private companies can refuse to provide coverage for birth control and contraceptives on the basis that it violates their religious beliefs. (CNN)  The case will be heard in the country’s highest court as a result of approximately 50 pending lawsuits filed in federal court by a variety of corporations challenging the coverage benefits under “Obamacare.”  (CNN)

This case will be the first challenge to reach the Supreme Court since it upheld the Affordable Care Act 17 months ago in a 5-4 decision written by the Chief Justice.  (National Federation of Independent Business v. Sebelius)  Beyond that milestone, the recent challenge is significant because it will answer a question with far-reaching consequences — can corporations pray? (USA Today) Hobby Lobby, an Oklahoma City corporation, believes the answer is yes.  In fact, the company closes on Sundays, funnels millions of dollars in profits to ministries, does not sell shot glasses in order to avoid the appearance of promoting alcohol, and does not provide insurance coverage for drugs or devices which it claims are capable of terminating a pregnancy.  (Hobby Lobby Website)

The 10th U.S. Circuit Court of Appeals agreed with Hobby Lobby. It said that the 1993 Religious Freedom Restoration Act protects corporations the same way it protects individuals, ruling that “the contraceptive-coverage requirement substantially burdens Hobby Lobby’s rights under” the law.  (FOX News) The Obama Administration, in its Supreme Court brief, argued that the 10th Circuit was incorrect, and that if the ruling were allowed to stand, it would make the law “a sword used to deny employees of for-profit commercial enterprises the benefits and protections of generally applicable laws.” (FOX News) Furthermore, the Administration and Justice Department point to a long line of Supreme Court cases that have not found a for-profit company to be a religious organization for purposes of federal law. (NPR)

Women’s rights advocates, such as Planned Parenthood, released statements in light of the Supreme Court’s grant of certiorari, expressing that if the Court were to rule in favor of for-profit corporations, that the decision would “create a very slippery slope, giving for-profit employers their own right to impose medical preferences on their employees.” (Planned Parenthood)

All of these views, and more, will undoubtedly be on display when the Court hears the oral arguments that will likely be held in March, with a ruling by late June 2014.  (Politico) Regardless of the Supreme Court’s decision, the nation will be paying attention because the decision is not only important in the context of the Affordable Care Act, but will also answer the question of whether these companies can assert religious freedoms, which will have importance for decades and centuries to come.  (US News)

 

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Patient Protection and Affordable Care Act: Smoking Surcharges Could Cost You

        After strong opposition from multiple states which culminated in the Supreme Court case National Federation of Independent Business v. Sebelius, health insurance exchanges of the Patient Protection and Affordable Care Act (PPACA) began implementation on October 1, 2013.  Though not without website glitches and continuing opposition from House and Senate Republicans, the White House has claimed that many people have signed up and have begun to take advantage of the benefits the PPACA has to offer. (White House)  To be clear, the PPACA is a federal law with state components, including specific state insurance exchanges.  Following the NFIB v. Sebelius, several states with legislatures controlled by Republicans opted to reject the expanded Medicaid coverage provided for by the Act.  As of September 2013, 25 states and the District of Columbia have adopted the Medicaid expansion.  (Advisory.com)  States that have not yet expanded their Medicaid programs can choose to opt in at a later time.  (CNN Money)

            What has come to light since the PPACA has been implemented is the significant impact it will have for smokers.  (Journal Times)  While one of the purposes of the PPACA exchanges is to reduce the cost of insurance across the board, not enrolling without a penalty (or having an alternate source of health insurance) is currently not an option for smokers and non-smokers alike.

            In fact, smokers in some states may have to pay as much 50% more in premiums than non-smokers if they sign up for insurance through the PPACA. (USA Today)  In some cases, the premium that smokers will pay might completely negate the subsidy for which some smoking health plan enrollees would qualify for in the marketplace. (Chicago Sun Times)  For example, if someone would qualify for a $6,000 subsidy on an insurance policy costing $8,000, his out-of-pocket cost would be $2,000.  Under the PPACA, factoring in the 50% surcharge on the original $8,000 sticker price, the same plan might cost $12,000.  However, he would still only get a $6,000 subsidy, because the subsidy cannot be applied to the smokers’ penalty.  That means he would ultimately pay $6,000 out of pocket, instead of $2,000. (Reuters)

            Smokers tend to be overrepresented in the lower income demographic, who currently rank high among the uninsured.  Incidentally, those who fall in the relatively lower income bracket are the people who would be most likely to want to buy insurance through the PPACA because they are currently uninsured.  If the goal of the Affordable Care Act is to protect the most vulnerable by offering them affordable insurance, then it seems paradoxical to dissuade smokers — who make up a fifth or more of the population — from signing up.  (Reuters)

            Organizations such as the American Lung Association favor the 50% premium surcharge, as they see it potentially providing the impetus smokers need to quit their habit.  They have characterized the premium as providing a focus on prevention in healthcare, especially as related to tobacco cessation.  (Lung.org)  It seems as though the purpose of the higher premium charges are to penalize the people who put not only themselves but others at risk by smoking, and incentivize ceases such behvarior. (USA Today)

            Regardless of the purpose of the PPACA’s treatment of smokers, Washington, D.C. and states including California, Massachusetts, Rhode Island, Connecticut, New Jersey, New York and Vermont have already taken the steps to prohibit insurers from applying a tobacco surcharge.  Many other states have lowered the maximum surcharge allowed.  (Web MD)  How this premium will impact the popularity of the PPACA with the 20% of the population comprised of smokers is yet to be seen.

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Forcibly Medicating Mentally Ill Death Row Inmates

First year law students are taught the basic theories of punishment in their Criminal Law classes within the first week — deterrence, rehabilitation, isolation, education, and retribution.  These relatively straightforward concepts seem simple enough until they are complicated by obstacles that exist solely outside of textbooks and in the real world like mental illness and the death penalty.

On September 11, 2013, the Texas Court of Criminal Appeals held that a court may not order the forcible medication of a mentally ill death row inmate to render him competent to be executed.  (see Staley v. Texas ; Chattanooga Times Free Press; Death Penalty Information Center)  This decision is one of a number of cases across the country, including state supreme courts in Louisiana and South Carolina, that have had the same essential ruling — that an inmate on death row cannot be forcibly medicated to stand trial or be executed.  (Star-Telegram)

In the cases dealing with forcibly medicating mentally ill death row inmates, the court is faced with the task of considering a host of difficult questions in addition to keeping the delicate balance, including issues of public health, policy, state law, and the specific facts of each case.  Still, regardless of the appreciation for the challenge of the task at hand, many critics of decisions such as the one that the Texas court handed down believe that the American court system is not a strong enough institution because of its apparent inability to protect the collective security of the public.  Those in favor the decision believe that the court intelligently practiced judicial restraint in remaining faithful to the text of the state’s constitution.   (John Katz, PC; Penn State Law Review)

Interestingly, both the American Psychiatric Association (APA) and American Medical Association (AMA) have publicly denounced the practice of forcible medication, calling it ethically unacceptable.  (see http://www.medscape.com/viewarticle/747795)  The APA is specifically concerned that when a court is making life-altering decisions and writing about psychiatric illness and treatments, judges have an accurate set of facts to work from.  Furthermore, the APA is concerned that that the authorities who have custody of a defendant to make decisions regarding forcible medication can do so in a timely and efficient manner.  (Death Penalty Information Center)

Considering the gravity of any decision involving forcible medication and the potential it has for serious health law and policy consequences, it is surely an issue that will be highly scrutinized and debated for years to come.

 

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