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HomeMy WebLinkAboutBOH minutes 102298MINUTES ORANGE COUNTY BOARD OF HEALTH October 22, 1998 Board of Health Minutes Transcription completed by Patsy L. Bateman 1 October 22, 1998 ORANGE COUNTY HEALTH DEPARTMENT MISSION STATEMENT: To enhance the quality of life, promote the health, and preserve the environment for all people in the Orange County community. THE ORANGE COUNTY BOARD OF HEALTH MET ON THURSDAY, October 22, 1998 AT SOUTHERN HUMAN SERVICES CENTER MEETING ROOM, CHAPEL HILL, NORTH CAROLINA. BOARD OF HEALTH MEMBERS PRESENT: Timothy J. Ives, Melvin Hurston, Barry Adler, Jonathan Klein, Margaret Brown, Brenda Crowder-Gaines, Barbara Chavious BOARD OF HEALTH MEMBERS ABSENT: Janet Southerland, Richard Marinshaw, Beverly Foster, Ron Cammarata STAFF PRESENT: Rosemary Summers, Health Director; Ron Holdway, Environmental Health Division Director; Eileen Kugler, Personal Health Division Director; Cornelia Ramsey, Health Education; Patsy Bateman, Administrative Assistant; Jerry Pipoly, Personal Health; Ruth Efird, Personal Health; Polly Swick, Personal Health; Diane Rocker, Personal Health; Leigh McFalls, Personal Health; Pam McCall, Personal Health; Evelyn Aabel, Personal Health; Melinda Schlesinger, Personal Health; Susan Rankin, Personal Health GUESTS PRESENT: Geoff Gledhill, County Attorney; Trevor Gledhill; Lisa Vollmer, UNC Nutrition Dept.; Lara Bruce, UNC Nutrition Dept.; Sharon Dunn, UNC School of Nursing I. CALL TO ORDER AND INTRODUCTION OF GUESTS Dr. Ives called the meeting to order at 7:30 p.m. Rosemary Summers introduced the staff present. A. SPECIAL STAFF RECOGNITION On the afternoon of 9/18/98 a child about 18 months old and its mother were at the DSS office here at SHSC. While the mother was on the phone after finishing her business, the child somehow managed to get access to very hot water in a coffee vending machine that was in the vending area in the lobby and the child was burned. Several health department staff reacted quickly and effectively to this situation. At this time please recognize Pam Petch, Jerry Pipoly, Jacqueline Dale, Evelyn Aabel, Sue Rankin, Pam McCall, Melinda Schlesinger, Polly Swick, and Eileen Kugler. B. APPROVE OCTOBER 22, 1998 AGENDA The October 22, 1998 agenda was approved. II. DISCUSSION ITEMS - PART ONE A. ADVERSE PUBLIC HEALTH CONDITION (This section is primarily a direct transcription of the presentation by Mr. Gledhill.) Geoff Gledhill was invited to answer questions of the Board of Health. Gledhill -- The County is trying to figure out what to do about extension of public water and sewer and probably even more generally trying to figure out what to do about the boundaries for the public sewer and water providers in the county. Out of that discussion, the idea of how to address failing septic systems has come up and also how to think about where public water and sewer is going to go. One of the reasons that’s an issue is because the extension of public water and sewer is seen as something that drives development or that creates an opportunity for more intensive development than would exist otherwise. The other is that we have more than one public water MINUTES ORANGE COUNTY BOARD OF HEALTH October 22, 1998 Board of Health Minutes Transcription completed by Patsy L. Bateman 2 October 22, 1998 and sewer provider in the county. The concept was to get public water and sewer providers in our case, OWASA and Hillsborough together with the land use planners, in our case, Hillsborough/Orange County/Chapel Hill/Carrboro to try and develop public water and sewer boundaries and also to create a set of rules for where those public water and sewer utilities can go, where they can’t go, and under what circumstances they can go. In discussing that whole idea one of the points of focus became what if you have an existing system and it is failing or what if you have more than one septic system and it is failing. This is an area where you won’t normally put water and sewer. How do you address it? Out of that concept came the idea of defining an adverse public health condition as specified in the documents which you were provided. The definitions were developed principally by Ron Holdway but in the context of this water and sewer policy idea. The Water and Sewer Boundary Task Force has now incorporated into the draft of its proposed agreement everything you have in the proposed rules. There are a few differences, this is a little bit broader than just applying to waste water and well water. Summers -- There were several situations the first few months I was here that were very difficult to deal with because the situations were not imminent hazards nor public health nuisances, both of which are narrowly defined statutorily. There are situations that arise that we would like to be able to do something to intervene, but we can’t under the current rules. Examples of broader situations might include the problem with the sharp’s recycling situation and we also had a case where there was hepatitis A in a grocery store produce section employee. We couldn’t under current rules do anything about these situations. The broadening of this definition would at least give us a way to help those agencies/organizations come to a remedy. This is why it’s been broadened slightly. Gledhill -- The broadening you’re talking about is in the occupational exposure to a reportable communicable disease? Summers -- Right, or the other one which is a potential to cause personal injury. Gledhill -- The Water and Sewer Task Force or the Boundary Agreement could work without the BOH adopting this as a rule. The reason is because the Water and Sewer Boundary Agreement as proposed has a role for the Health Department/Environmental Health folks. The role is more a fact-finding role, that is using these definitions and these ideas, and making a determination that an adverse public health condition exists. It’s a defined term in the agreement and it doesn’t require the Health Department making the determination to do anything different than what they’re already doing as a matter of course. Example: Is a waste water system a failing waste water system? The way a failing waste water system is defined both in the rule and in the proposed agreement is the waste water system is failing when sewage or effluent is seeping or discharging to the ground or to surface water. This is something that Environmental Health can determine without looking at a rule. The same will be true with each one of the definitions that are in here. Example: An approvable onsight repair is one that can be completed and is approvable under Health Department rules and regulations. Everything that’s in the Water and Sewer Boundary Agreement and everything in this rule takes you back to something that Environmental Health is already doing. Could the abatement of public health nuisance statute be used in lieu of this rule? In my view, first of all there is virtually no litigation that I’m aware of in N.C. having to do with the abatement of public health nuisance. We don’t have much help from the courts about what that term means. In my view, the adverse public health condition idea is more workable than the public health nuisance. The reason is if you are working with a statutory term you’re going to be held to be applying that statute and we don’t know what that statute means, but we can create our own terms like adverse public health condition and define it in our own way and then we know what that term is. That term is not only defined by us but it refers to other things that Health Department is already doing. I think it’s a safer way to proceed and it’s also more practical. MINUTES ORANGE COUNTY BOARD OF HEALTH October 22, 1998 Board of Health Minutes Transcription completed by Patsy L. Bateman 3 October 22, 1998 Once you start declaring public health nuisances or once a determination is thought to be a public health nuisance, that requires the government to make some kind of response and this does not. This empowers the government to make some response, but doesn’t require a response. One thing different about this rule, this rule suggests a BOH remedy. The present draft of the Water and Sewer Boundary Agreement uses the same terminology and comes to the same conclusions that your rule does. It then goes on to say that the final decision to use any particular means or tools for rectifying particular adverse public health condition remains through the zoning regulations or other land use ordinances with the governmental entity or entities having jurisdiction (planning) over the area where the adverse public health condition exists. Water and Sewer Boundary folks are thinking that how you fix it once it exists, is a land use decision as opposed to a Health Department decision. If you adopt this rule, I’m not sure what will happen. They haven’t seen it that way. In fact, the group has devised a set of “tools” that can be used for fixing one of these adverse public health conditions. Those tools are not in the boundary agreement yet and they are not in your rules, but they range from doing nothing to actually running public water and sewer and the idea will be that which tool you use to fix the problem will depend on where the problem is and again the idea is, that under no circumstances would the determination of a adverse public health condition automatically mean a public sewer or water fix. It may be that some other fix would be appropriate. In fact, when you start talking about the examples in the University Lake Watershed, etc. you would almost never have a public sewer fix for that problem, which is what the Brookefield problem is. Elected officials don’t think public sewer is the answer in some of those situations, in fact they believe the cure is worse than the problem. By putting public sewer in to correct a problem, they believe it will generate additional problems that are bigger than the problem you’re curing. Ives -- Perhaps the three of you (Paul Thames, Ron Holdway, Geoff Gledhill) could come to some rough understanding and be put into writing under the responsibilities section. Summers -- It strikes me that the Board of Health is responsible for public health rules, not planning and zoning. Gledhill -- That’s right, but, the Board of Health doesn’t have the authority to say you can run public sewer. What you run the risk of doing is the same thing that is now going on with public health nuisance. If you say to somebody, you have an adverse public health condition in your home, you have to fix it and they can’t fix it, then what are you going to do? That’s the dilemma you have with the present statute. You can declare public health nuisance and you can declare public health emergencies, but if you do declare those, what are you going to do about it? Are you going to kick them out of their homes? If the only solution is to run public sewer, you have no way of making that happen. The Board of Health may be forced into a situation it doesn’t want to be in is the point I make. You have the power to kick them out, but you don’t have the power to fix it. Brown -- Asked a question regarding Carden’s Mobile Home Park on Highway 70. This was an old mobile home park that had serious septic problems and this came before the Commissioners last year and asked to be connected to the sewer line across the street that was run to a business located there. Our water and sewer policy said no, the mobile home park could not connect to that. In that case, those people I think are having to move. Gledhill -- That’s right. They’re not having to move right away, but if one of them does move that home cannot be re-occupied. To my knowledge, Orange County has never made an imminent hazard declaration except in the Piney Mountain situation (for privately owned homes). Under the present rules an existing system that’s failing for the most part, gets to stay and you fix it as best you can. If you adopt this set of rules, you will up that bar. The Board of Health will put itself in the position of perhaps not being able to do that. You will definitely put yourself in conflict with the elected officials thoughts, at least the task force’s thoughts about how to deal with this situation. They recognize that the factual determinations are Health Department determinations MINUTES ORANGE COUNTY BOARD OF HEALTH October 22, 1998 Board of Health Minutes Transcription completed by Patsy L. Bateman 4 October 22, 1998 and it took some doing to get them there. It was Ron Holdway’s and my constant urging to get that out of the political arena and let the Health Department do what it does, making factual determinations. As far as the remedies, the remedies right now will be decided through the zoning regulations to fix the problem. So it is an adverse public health condition for purposes of looking at the zoning remedies available. It wasn’t envisioned by that group that it would become a new thing that the Health Department would do like declaring public health nuisance or declaring imminent health hazards. Gledhill’s Summation: I don’t know what to advise the BOH about whether to adopt these rules. I think you have the power but, I don’t have a recommendation. Ives -- From my perspective, I would suggest we defer this until next month. The one person I would love to hear from is not here, Rick Marinshaw and he has the greatest expertise among Board of Health members to make a determination. Crowder-Gaines -- You said that adopting these rules would be in opposition to the elected officials? Gledhill -- Not exactly in opposition. If you adopt these rules you (the Board of Health), you will put yourselves, the Board of Health/Environmental Health will be regulating what is not envisioned to be a regulatory matter in the Water and Sewer Boundary Agreement. You will be regulating adverse public health condition and right now you’re not. So you will be elevating your level of regulation to say that failing septic systems is an adverse public health condition that must be remedied and that presently is not the case. The present case is you have to do the best you can. The rules would say you have to fix it and that will not only raise your bar, it will be brand new in N.C. This is worth another meeting at least. The tool box piece is the step that the Water and Sewer Boundary group took after coming up with this Adverse Public Health Condition idea and it has not yet been adopted by anybody, but it probably will end up being an appendix or something to the Water and Sewer Boundary Agreement. Does the BOH have that tool box? Summers -- I can get it to them. Gledhill -- I should talk about that after the Board of Health has received it. It is a matrix of solutions and it relates land use / zoning categories with remedies. The idea is the more sensitive the land use category is, the less restrictive the remedy is so that you don’t make a bigger problem than the failing septic system. B. SMOKING CONTROL RULES (Gledhill Transcription) Summers -- The Board has been working on revising or cleaning up the rules for a number of months. The concern was that as we conduct a more active clean-air campaign, there may be additional complaints turned in to the Health Department regarding rule violations. Mr. Gledhill has looked at the rules several times and we have talked through potential weak areas on the phone. The rules in the Board of Health packet contain strikethroughs that would clarify some of the confusion for people when they read the rules, because the rules have differential dates which were necessary when these rules were adopted, but are no longer necessary. There may be some prohibition around even doing this. Gledhill -- The General Assembly that preempted local smoking regulations left a window of about 3 months. After that, any regulation that gets adopted after the window is closed has to conform with the State law. The State law says you have to make a certain percentage of public places or regulated places available for smoking. As opposed to limiting smoking it sort of preserves smoking areas in public facilities. The concern that’s raised has to do with the way the law was written. There are some people who think that the law was written in a way that if you amend any smoking rule after the window is closed, that the whole law has to conform to that [the State law]. My guess is that it would not be interpreted that way. One of the risks we run in N.C. with any smoking rules, is that our courts tend to have a smoking agenda too. There is some risk associated with any amendment. I think the better interpretation of what the State law is that if you were to amend a rule/law and then a set of smoking rules, that anything you do with the amendment would have to conform to MINUTES ORANGE COUNTY BOARD OF HEALTH October 22, 1998 Board of Health Minutes Transcription completed by Patsy L. Bateman 5 October 22, 1998 what the State law says. Example: If we were going to clean up an ordinance to take out offending provisions, the way we would clean them up would be to make them conform to what the State law says. That’s the big picture I have of how that could be done. One of the things we don’t know is whether the Board of Health has the power to adopt smoking rules at all. That question wasn’t touched in the Halifax County case. The Halifax County court decision said that the set of rules they were looking at didn’t make the grade because they took economic impact, not just health effects into consideration and threw those rules out without deciding to question the power of the Board of Health to make rules. There were arguments made in that case throughout the litigation process that the Board of Health rule making power doesn’t extend to economic decisions. Those are some of the same arguments being made in Chatham County in context of the hog waste rules. If you do any kind of serious enforcement, you run the risk of somebody saying Boards of Health don’t have the power to do this. The other thing is if you tinker with the set of rules you already have, you also run some risk of somebody saying, “You tinkered with them, therefore you’ve lost what you had”. Probably the final idea would be that if you were to amend the rules to clean up some of the problems that we know are in our rules as a result of the Halifax County Rules decision, then you might be in the best position of all to begin some kind of rigorous enforcement. There are a couple of things that Rosie has talked about that might cause difficulty if a court challenge were to be initiated. The Halifax County Rules failed principally because they were deemed to be not health rules but more like the kind of laws that an elected government might have and that they balanced health and economics, which is something that county commissioners and town council people do all the time. The Halifax County Rules balance that by excluding certain things from their coverage. The exclusions we have [Orange County Smoking Rules] are private clubs, federal facilities, tobacco shops and jails. I think the only one that runs a risk of running a foul of the Halifax rules decision is probably the tobacco shop exclusion. Excluding private clubs is probably something we would have to do anyway, it would be the same as excluding your home. I doubt the Board of Health has the power to say nobody can smoke at home. I doubt they can say that nobody can smoke in my private club. Federal facilities are excluded because you don’t have the power to regulate federal facilities, so excluding those doesn’t do anything but rectify the obvious. Local governments can’t regulate federal facilities. Tobacco shops is the one vulnerable area as it is the only place where economics probably entered into the decision of the Board of Health. If you were to change the rules to make them applicable to tobacco shops, according to State rules, nothing would happen to the tobacco shop. It isn’t big enough to make a difference. There isn’t a lot of risk in cleaning up this tobacco shop thing. Even though it is causing some confusion, I would leave these date provisions that no longer apply in the regulations. There is some concern that in removing them, someone would say you need to change those sections in a way that conforms with State law and you don’t want to do that. Leave it alone and deal with it. The answer to the jail is that exempting the jails and confinement facilities is not an economic decision. Here you would be balancing other health issues. Requiring jails to be smoke-free is running the risk of having a jail uprising. It’s possible to make our jail smoke free. Klein -- The Orange County Jail has gone smoke free, this is new, when the new addition was put on. Gledhill -- The reason this was done probably had nothing to do with economics and you can leave that alone. If you change it, the only way I think you can change it would be to again make it conform to the State rules and I think it’s better off left alone and let Lindy Pendergrass manage the jail. Fixing tobacco shops eliminates the only economic decision you made in the rules. The State has said that we probably have the best set of rules in the book right now. The motion to proceed with the amendments to the rules regarding tobacco shops was made by Jonathan Klein, seconded by Brenda Crowder-Gaines and carried without dissent. MINUTES ORANGE COUNTY BOARD OF HEALTH October 22, 1998 Board of Health Minutes Transcription completed by Patsy L. Bateman 6 October 22, 1998 III. ACTION ITEMS A. APPROVAL OF MINUTES (SEPTEMBER 24, 1998) There were no additions, deletions nor amendments to the minutes of the September 24, 1998 meeting. The motion to approve the September 24, 1998 minutes was made by Brenda Crowder- Gaines, seconded by Mel Hurston / Margaret Brown and carried without dissent. C. ITEMS FOR DECISION - REGULAR AGENDA Dr. Summers presented an overview of mandated health department services in the context of Board adopted core functions and essential services to lay the groundwork for the next several agenda items. The Early Head Start request, the Children’s Clinical Services and Sexually Transmitted Disease Prevalence item all relate to this background. 1. PROPOSAL TO CONTRACT WITH EARLY HEAD START This was a request to the Orange County Health Department from Chapel Hill Training and Outreach (CHTO), it was not something Orange County Health Department sought. This is a request for Orange County Health Department to add two family service coordinators, which CHTO would pay for through a federal grant. These positions would be county employees. They asked us to do this because this is a similar population to our intensive home visiting population 0-5 years in age. These are children who are at- risk for developmental delays and other health problems. CHTO sees the services that these families would get to be the same that the health department is providing through the intensive home visiting grant. This would provide for additional families to be covered and it recognizes the health department’s ability to deliver those community- based in-home services. We also have strong support from the Orange County Partnership for assuming this role. The two coordinators will likely be social workers. This has not been decided yet. In the intensive home visiting, there is one social worker and one nurse. Brenda Crowder-Gaines expressed concern about CHTO providing “facility upgrades and training” only in the first year of the grant. She asked whether the health department would be responsible for absorbing that after the first year. Summers replied that we could clarify that in the contracting process and that it was her understanding that this statement meant that CHTO was not developing its own daycare but using existing ones. The motion to authorize the Health Department to proceed with developing a contractual agreement with Chapel Hill Training Outreach was made by Jonathan Klein, seconded by Barbara Chavious and carried with an abstention by Brenda Crowder-Gaines. 2. CHILDREN’S CLINICAL SERVICES PROPOSAL The staff has prepared a draft proposal that has a six step plan of implementation. This is still a draft plan and needs input from the Board. The effort here is to look at the population of children being served by Orange County Health Department clinical services and to develop a plan for transitioning them to private providers. Why? Because the private providers can provide a full range of primary care services that we do not provide at the health department. The bottom page of the plan lists several items the Orange County Health Department would need in order to become a full primary care provider for those children. We believe, unsubstantiated at this point, that there are MINUTES ORANGE COUNTY BOARD OF HEALTH October 22, 1998 Board of Health Minutes Transcription completed by Patsy L. Bateman 7 October 22, 1998 sufficient provider resources in the county to take care of Orange County Health Department children. The advent of the N.C. Health Choice Program makes it more attractive for providers to care for these children. The biggest concern is for those children that might still fall between the cracks. There are three groups of children being served by the Orange County Health Department. The first are children who are covered by Medicaid insurance. These children already have a designated private provider. The Orange County Health Department needs to find out why they are coming to us rather than their own provider. The second group of children are the Health Choice children. The Orange County Health Department needs to find out whether the private providers will provide services to them. This is a fee-for-service reimbursement. The third group of children are those 201% - 205% or more of the poverty level who remain uninsured. Where do they go for services? We don’t know how large that group of children is in the county. This is basically a plan to gather some additional information to make these determinations as a first step. There were multiple concerns expressed by board members regarding client and community perceptions of the proposed change in services. The Board requested additional information in this regard and a careful examination of the alternative of expanding services to full primary care. A report by the staff will be made at a future board meeting. The motion to recommend that the Board of Health approve the proposed plan to study the feasibility of transitioning the Orange County Health Department Child Health Clinic patients to other primary care providers in the community and to discontinue the Orange County Health Department Child Health Clinic Services was made by Barbara Chavious, seconded by Mel Hurston and carried without dissent. IV. DISCUSSION ITEMS – PART TWO (Due to the time, by common consent the only item on the remaining agenda to be considered was Item IV. C.) C. Extended November Board Meeting The motion to conduct the November 19, 1998 Board of Health meeting from 6:00pm until 10:00pm was made by Jonathan Klein, seconded by Barbara Chavious and carried without dissent. V. ADJOURN A motion was made by Mel Hurston and seconded by Barbara Chavious / Brenda Crowder-Gaines to adjourn the meeting at 10:10 p.m. The next regular Board of Health meeting will be held on November 19, 1998 at the Health Department Conference Room in Hillsborough, North Carolina. Respectfully submitted, Rosemary L. Summers, MPH, DrPH Health Director Secretary to the Board RLS:plb