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Flint, Water Safety & Public
Health Infrastructure
Wendy. E. Parmet
Director, Center for Health Policy & Law
Northeastern ...
2
“ The Flint water crisis is a story of government
failure, intransigence, unpreparedness, delay,
inaction, and environme...
3
Timeline
4
Nov. 2011
Governor appoints
Emergency
Manager (EM)
Agreement signed
to switch water
supply
Apr. 2013 Mar. 2014
...
Timeline
5
Oct. 2014
GM stops using Flint
water
Mayor says water is
safe
Jan. 2015
EPA questions water
safety
Mar. 2014
Au...
Timeline
6
Dec. 2015Oct. 2015
Public health emergency
declared; Flint reconnects to
Detroit water
Mayor and Governor
decla...
Health Impact
• At least 87 cases of Legionnaire’s disease
• 9 deaths
7
• 50 % increase in children < 6 with elevated bloo...
Over 60 Civil Suits
8
Photo credit: ACLU of Michigan
Federal Claims
9
Constitutional:
• Substantive Due Process – State Created Danger
• Substantive Due Process – Violation of...
Environmental Claims
10
Safe Drinking
Water Act:
Lead & Copper
Rule
• Requires monitoring , corrosion control & mitigation...
State Claims
11
Gross Negligence
Conversion
Unjust EnrichmentNuisance
Breach of ContractBreach of Warranty
Consumer
Protec...
Defenses & Hurdles
12
• Lack of a “Right to Public Health Protection”
–DeShaney v. Winnebago County
–SDP claims available ...
13 Criminal Cases
13
Defendants include:
• Dep’t of Environmental Quality Employees
• Flint Laboratory and Water Quality S...
Mitigation Steps
14
Jan. 2016 – Obama issued emergency declaration
• But Flint was ineligible for a federal disaster decla...
Beyond Flint: The Lead Problem
15
“A Reuters examination of lead testing results across the country found
almost 3,000 are...
Beyond Flint: Law Reform
Reforming Emergency Manager Laws
 HR 4754 (Emergency Financial Manager Reform Act of 2016)
 Mic...
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Wendy Parmet, "Flint, Water Safety, and Public Health Infrastructure"

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Published on

January 23, 2017

The Fifth Annual Health Law Year in P/Review symposium featured leading experts discussing major developments during 2016 and what to watch out for in 2017. The discussion at this day-long event covered hot topics in such areas as health policy under the new administration, regulatory issues in clinical research, law at the end-of-life, patient rights and advocacy, pharmaceutical policy, reproductive health, and public health law.

The Fifth Annual Health Law Year in P/Review was sponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, Harvard Health Publications at Harvard Medical School, Health Affairs, the Hastings Center, the Program On Regulation, Therapeutics, And Law (PORTAL) in the Division of Pharmacoepidemiology and Pharmacoeconomics at Brigham and Women’s Hospital, and the Center for Bioethics at Harvard Medical School, with support from the Oswald DeN. Cammann Fund.

Learn more on our website: http://petrieflom.law.harvard.edu/events/details/5th-annual-health-law-year-in-p-review

Published in: Healthcare
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Wendy Parmet, "Flint, Water Safety, and Public Health Infrastructure"

  1. 1. Flint, Water Safety & Public Health Infrastructure Wendy. E. Parmet Director, Center for Health Policy & Law Northeastern University
  2. 2. 2 “ The Flint water crisis is a story of government failure, intransigence, unpreparedness, delay, inaction, and environmental injustice.”
  3. 3. 3
  4. 4. Timeline 4 Nov. 2011 Governor appoints Emergency Manager (EM) Agreement signed to switch water supply Apr. 2013 Mar. 2014 EM decides to use water from Flint River pending new system Mar. 2014 Apr. 2014 Water supply is switched June 2014 Residents complain about water quality Aug. 2014 Flint water tests positive for e-coli; boil water alert issued
  5. 5. Timeline 5 Oct. 2014 GM stops using Flint water Mayor says water is safe Jan. 2015 EPA questions water safety Mar. 2014 Aug. 2015 State declares two water samples showing high lead invalid Aug. 2015 Virginia Tech researchers publish study showing high levels in Flint water Aug. 2015Jan. 2015 Outbreak of Legionnaire’s disease detected
  6. 6. Timeline 6 Dec. 2015Oct. 2015 Public health emergency declared; Flint reconnects to Detroit water Mayor and Governor declare states of emergency Mar. 2016 US HHS approves extended Medicaid coverage to children of Flint Mar. 2014 Apr. 2016 First criminal charges brought Dec. 2016 Congress passes $170 million aid for Flint Sept. 2015 Dr. Mona Hanna-Attish reports blood lead levels have doubled in Flint children since the switch Jan. 2016 President declares state of emergency
  7. 7. Health Impact • At least 87 cases of Legionnaire’s disease • 9 deaths 7 • 50 % increase in children < 6 with elevated blood lead levels (> 5 ųg/dL) • 5 % of children < 6 had elevated blood lead levels: ̵ “lead affects children’s brain development resulting in reduced intelligent quotient (IQ), behavioral changes such as shortening of attention span and increased antisocial behavior, and reduced educational attainment. Lead exposure also causes anemia, hypertension, renal impairment, immunotoxicity and toxicity to the reproductive organs. The neurological and behavioral effects of lead are believed to be irreversible.” WHO
  8. 8. Over 60 Civil Suits 8 Photo credit: ACLU of Michigan
  9. 9. Federal Claims 9 Constitutional: • Substantive Due Process – State Created Danger • Substantive Due Process – Violation of Bodily Integrity • Equal Protection • Contracts Clause • Takings Clause -- Inverse Condemnation
  10. 10. Environmental Claims 10 Safe Drinking Water Act: Lead & Copper Rule • Requires monitoring , corrosion control & mitigation • Requires consumer notification • Creates Private Right of Action for Injunctive Relief • Concerned Pastors for Social Action v. Khouri (E.D. Mich. 2016)(rejected motion to dismiss request for injunctive relief under SDWA) • Boler v. Early (ED Mich. 2016)(app. pending)(SDWA violation cannot form basis for 1983 claim)
  11. 11. State Claims 11 Gross Negligence Conversion Unjust EnrichmentNuisance Breach of ContractBreach of Warranty Consumer Protection Substantive Due Process
  12. 12. Defenses & Hurdles 12 • Lack of a “Right to Public Health Protection” –DeShaney v. Winnebago County –SDP claims available only in narrow circumstances • Immunities – Federal Qualified Immunity – Michigan Tort Claims Act ̵ Absolute immunity for highest executive officers in a jurisdiction ̵ Other officials immune except for gross negligence ̵ Cites immune with limited exceptions including for proprietary functions • Equal Protection – must prove invidious intent • No Public Duty Doctrine
  13. 13. 13 Criminal Cases 13 Defendants include: • Dep’t of Environmental Quality Employees • Flint Laboratory and Water Quality Supervisor • Michigan Dep’t of Health & Human Services Employees Charges include: • False Pretenses • Misconduct in Office (for failing to provide safe water and protecting the public health) • Conspiracy to tamper with and tampering with evidence • Violating Michigan Safe Drinking Water Act – including manipulating collection samples • Willful neglect of duty
  14. 14. Mitigation Steps 14 Jan. 2016 – Obama issued emergency declaration • But Flint was ineligible for a federal disaster declaration. March 2016 – HHS approved $3.6 million expansion for Head Start and Early Head Start in Flint May 2016 -- Expansion of Medicaid Coverage for 15,000 children in Flint Dec. 2016 -- Congressional Appropriates $170 million for Flint and other communities
  15. 15. Beyond Flint: The Lead Problem 15 “A Reuters examination of lead testing results across the country found almost 3,000 areas with poisoning rates far higher than in the tainted Michigan city.” Reuters Investigates, Feb. 19, 2016 12 states (of 27 reporting) have a higher percentage of children under 6 with lead levels above 5 micrograms per deciliter 8.5 % of children in Pennsylvania have high lead levels
  16. 16. Beyond Flint: Law Reform Reforming Emergency Manager Laws  HR 4754 (Emergency Financial Manager Reform Act of 2016)  Michigan’s law upheld by federal court in 2016 Rethinking the Siloing of Public Health & Environmental Protection Health in All Policies Rethinking Immunities 16 What happens when the harm is caused by negligence, rather than criminal actions? How do we implement policies that protect communities and hold government responsible for public health?

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