Public Health Law The Need for State Reforms

Because primary responsibility for protection of the public's health rests with the states, their laws and regulations concerning public health matters are critical in determining the appropriateness and effectiveness of the governmental public health infrastructure. At present, however, the law relating to public health is scattered across countless statutes and regulations at the state and local levels and is highly fragmented among the states and territories. Furthermore, public health law is beset by problems of antiquity, inconsistency, redundancy, and ambiguity that make it ineffective, or even counterproductive, in advancing the population's health.

The most striking characteristic of state public health law, and the one that underlies many of its defects, is its overall antiquity. Much of public health law contains elements that are 40 to 100 years old, and old public health statutes are often outmoded in ways that directly reduce their effectiveness and their conformity with modern legal norms in matters such as protection of individual rights.3 These laws often do not reflect contemporary scientific understandings of health risks or the prevention and treat

3 For example, a South Dakota statute passed in the late 1800s and last amended in 1977 makes it a misdemeanor for a person infected with a "contagious disease" to "intentionally [expose] himself . . . in any public place or thoroughfare" (S.D. Codified Laws § 34-22-5). Similarly, an 1895 New Jersey statute forbids common carriers to "accept for transportation ment of health problems. For example, laws aimed at preventing casual transmission of airborne diseases such as influenza and measles have little relevance for control of the sexually transmitted and blood-borne pathogens that are major concerns of health authorities today (Gostin et al., 1999). When many of these statutes were written, the science of public health, in fields such as epidemiology and biostatistics, and of behavior and behavioral interventions, such as client-centered counseling, was in its infancy.

Related to the problem of antiquity is the problem of multiple layers of law. The law in most states consists of successive layers of statutes and amendments, built up over more than 100 years in some cases, in response to changing perceptions of health threats. This is particularly troublesome in the area of infectious diseases, which forms a substantial part of state health codes. Colorado's disease control statute, for example, has separate sections for venereal diseases, tuberculosis, and HIV. All three sections authorize compulsory control measures, but they vary significantly in the procedures required and the public health philosophy expressed. Whereas the venereal disease statute simply empowers compulsory examination whenever health officials deem it necessary, the HIV section sets out a list of increasingly intrusive options (requiring use of the least restrictive) and places the burden of proof on the health department to show a danger to public health (Gostin et al., 1999).

Because health codes in each state and territory have evolved independently, they show profound variations in their structures, substance, and procedures for detecting, controlling, and preventing injury and disease. In fact, statutes and regulations among American jurisdictions vary so significantly in definitions, methods, age, and scope that they defy orderly categorization. There is, however, good reason for greater uniformity among the states in matters of public health. Health threats are rarely confined to single jurisdictions, instead posing risks across regions or the entire nation.

State laws do not have to be identical. There is often a justification for the differences in approaches among the states if there are divergent needs or circumstances. There is also a case for states' acting as laboratories to determine the best approach. Nevertheless, a certain amount of consistency within this state any person affected with a communicable disease or any article of clothing, bedding, or other property so infected" without a license from the local board of health (N.J. Stat. Ann. § 26:4-11 9). This might have made some sense in a time when diseases such as influenza, diphtheria, and measles were significant sources of serious illness and death, but it serves little purpose today. Although it may be impolite for people with the flu to walk around in public, it is not a major health threat. Furthermore, efforts to isolate people who do not pose a significant health risk would often violate modern disability discrimination law (it was held that the threat of disease did not justify excessively stringent quarantine of a blind plaintiff's guide dog) (see Crowder v. Kitagawa, 81 F.3d 1480, 1481, 9th Circuit, 1996).

is vital in public health. Infectious diseases and other health threats do not confine themselves to state boundaries but pose regional or even national challenges. States must be able to engage in surveillance and respond to health threats in a predictable and consistent fashion, using similar legal structures. Consistent public health statutes would help facilitate surveillance and data sharing, communication, and coordinated responses to health threats among the states. Consider the coordination that would be necessary if a biological attack were to occur in the tristate area of New York, New Jersey, and Connecticut. Laws that complicate or hinder data communication among states and responsible agencies would impede a thorough investigation and response to such a public health emergency.

To remedy the problems of antiquity, inconsistency, redundancy, and ambiguity, the Robert Wood Johnson and W. K. Kellogg Foundations' Turning Point initiative launched a Public Health Statute Modernization Collaborative in 2000 "to transform and strengthen the legal framework for the public health system through a collaborative process to develop a model public health law" (Gostin, 2002). The model public health law focuses on the organization, delivery, and funding of essential public health services, as well as the mission and powers of public health agencies. It is scheduled for completion by October 2003, and current drafts are available on the Turning Point website, at http://www.turningpointprogram.org.

The process of law reform took on new urgency after the events of September 11, 2001, and the subsequent intentional dispersal of anthrax through the postal system. In response, the Center for Law and the Public's Health at Georgetown University and Johns Hopkins University drafted the Model State Emergency Health Powers Act (MSEHPA) at the request of CDC (www.publichealthlaw.net). DHHS recommends that each state review its legislative and regulatory needs and requirements for public health preparedness. MSEHPA offers a guide or checklist for governors and legislatures to review their current laws. As of September 2002, three-quarters of the states had introduced a version of MSEHPA, and 19 states had adopted all or part of the act (Gostin et al., 2002). The model act, under review by federal and state officials, defines the purpose of the legislation as giving the governor and other state and local authorities the powers and ability to prevent, detect, manage, and contain emergency health threats without unduly interfering with civil rights and liberties. The legislation would address matters including reporting requirements, information sharing, access to contaminated facilities, medical examination and testing, and procedures for isolation and quarantine (Center for Law and the Public's Health, 2001).

CDC is facilitating the law reform process through its internal Public Health Law Collaborative. Efforts are in place to improve scientific understanding of the interaction between law and public health and to strengthen the legal foundation for public health practice. Through the Public Health Law Collaborative, CDC is joined in its work in public health law by a growing number of partners. These include public health practice associations, academic institutions and researchers, and public policy organizations (www.phppo.cdc.gov/PhLawNet).

The committee finds that the problems of antiquity, inconsistency, redundancy, and ambiguity render many public health laws ineffective or even counterproductive in improving population health. A set of standards and procedures would add needed clarity and coherence to legal regulation. Therefore, the committee recommends that the Secretary of the Department of Health and Human Services, in consultation with states, appoint a national commission to develop a framework and recommendations for state public health law reform. In particular, the national commission would review all existing public health law as well as the Turning Point4 Model State Public Health Act and the Model State Emergency Health Powers Act5; provide guidance and technical assistance to help states reform their laws to meet modern scientific and legal standards; and help foster greater consistency within and among states, especially in their approach to different health threats. It is essential that any reform of public health legislation address the powers needed to deal effectively with bioterrorism and other public health emergencies that pose significant threats across state boundaries. Each state could adapt the commission's recommendations to its unique legal structures and particular needs for public health preparedness. Public health is traditionally a state function, so the commission would provide guidance to the states rather than impose standards.

The following section provides a description of the federal, state, and local governmental agencies that are responsible for protecting the health of the public. Later in the chapter, the committee examines certain aspects of the state and local public health infrastructures that are of special concern.

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