Download Public Health Law 101: Blending Law & Policy

Public Health Law 101:
Blending Law & Policy
California Public Health Association – North
January 30, 2003
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Marice Ashe, Public Health Institute
Jim Simpson, Public Health Institute
Peter Hansel, Senate Office of Research
Steve Fleisher, Steve Fleisher and Assoc.
Overview of Panel Presentations
Public Health Law 2003
– New developments
Public Health Law 101
California law related to bioterrorism
preparedness
HIPPA
Public Health Law
Primary practitioners of public health law
– Government attorneys
• Drafting legislation
• Rulemaking and guidance documents
• Advice to clients
– Statutory interpretation
– Strategizing on courses of action
• Litigation
– Either as plaintiff or defendant
Other resources available, too
Public Health Law 2003: Federal
Government
CDC Public Health Law Program
– http://www.phppo.cdc.gov/od/phlp/
– Annual conferences (June 16-18, 2003; Atlanta)
– Coming soon: training in forensic medicine
Center for Law and the Public’s Health
– http://www.publichealthlaw.net/
– Model public health laws
• Model State Emergency Powers Act
Public Health Law 2003: California
Bioterrorism preparation
– Legal authority of local health departments
– State preemption or shared responsibility
– Vaccination liability
Souvannarath v. Hadden
– New interest in the law related to TB control
– Implications for bioterrorism preparedness
Tobacco control
– Litigation
– Technical assistance for policy development
• Potential model for other public health issues
Souvannarath
Case management of noncompliant TB patient by local
health department results in violations of the patient’s
civil rights.
– $1.2 million settlement to patient
Court tells health department that it has a duty to be
aware of the legal authority under which it operates.
– “Ignorance of the law is no excuse” – especially for
government employees
Tobacco Control: Litigation
Tobacco industry
– Personal injury
– Cost recovery suits aimed at recouping ill-gotten
gains, collecting funds for health care expenses,
compensating states
– Ultimate goal is to change industry behavior by
threat of huge settlements
Also suits against lead paint industry, gun
manufacturers, etc.
Tobacco Control: Technical Assistance
Technical Assistance Legal Center
– Legal TA on tobacco control to local health departments,
community organizations, municipal attorneys
– Development of model ordinances and policies
– Review and critique of local ordinances
– Analysis of novel approaches
– Advocacy tools for normative change
– Trainings for advocates
3 Approaches to Public Health Law
Litigation
Technical Assistance
– Research and writing on policy options
– Education on the law
– Strategizing on policy approaches
Legal Advice
– Attorney client priviledge
Upcoming Presentations
Jim Simpson
– Public Health Law 101
– Legal authority and duties
– Afternoon workshop on liability issues for public health practitioners
Peter Hansel
– The Model State Emergency Health Powers Act
– Comparison to California laws
– Recommendations
Steve Fleisher
– HIPPA compliance overview
– Afternoon workshop
Comparing California’s Laws and Regulations with
the Model State Emergency Health Powers Act
Public Health Association - North
Annual Meeting
January 30-31, 2003
Oakland, California
Peter Hansel
Principal Consultant
California Senate Office of Research
Overview of Presentation

Summarize major provisions of Model Act

Compare and contrast elements of Model Act and
California law and regulations

Identify areas where California’s statutes and
regulations for planning for, anticipating, and responding
to acts of bioterrorism or public health emergencies
could be improved
Background on Model Act

Drafted at the request of the U.S. Centers for Disease Control by the
Georgetown Center for Law and the Public’s Health.

A revised draft of the Model Act was published in December 2001.

Sets forth recommended duties and powers for state governments
and state public health authorities in responding to public health
emergencies, including acts of bioterrorism.

Intended as a model for state legislative efforts to update and
augment public health statutes in light of recent concerns about
bioterrorism and major disease outbreaks.

Introduced as AB 1763 (Richman) in the 2001-02 California
Legislative Session.
Outline of Model Act
Article I:
Article II:
Article III:
Article IV:
Article V:
Article VI:
Article VII:
Article VIII:
Title, Findings, Purposes, and Definitions
Planning for a Public Health Emergency
Measures to Detect and Track Public Health Emergencies
Declaring a State of Public Health Emergency
Special Powers During a State of Public Health
Emergency: Management of Property
Special Powers During a State of Public Health
Emergency: Protection of Persons
Public Information Regarding Public Health Emergency
Miscellaneous
Comparison of Major Profisions of Model
Act and California Law and Regulations

Public Health Emergency Planning

Declaration of Public Health Emergencies

Powers of Public Health Authority During a Public Health
Emergency or Disease Outbreak

Due Process Protections

Protection of Personal Health Information

State and Private Liability Protections
Public Health Emergency Planning — Model Act

Model Act provides a comprehensive, focused, and centralized
planning process, with emphasis on all aspects of planning for public
health emergencies.

Requires the governor to appoint a Public Health Emergency Planning
Commission.
Public Health Emergency Planning – Model Act (con’t.)
 Requires the commission
to deliver within six months, and annually review, a plan for
responding to public health emergencies, including guidelines on:
 Notifying
and communicating with the population.
 Centrally
coordinating resources, manpower, and services.
 Locating,
procuring, storing, transporting, maintaining, and distributing essential
materials.
 Effectively
continuing operations of the judicial system.
 Evacuating
populations, and housing and feeding evacuees.
 Training health
 Ensuring
that each city and county within the state identifies contingency sites;
 Acknowledging
relevant.
care providers to diagnose and treat infectious diseases.
cultural norms, values, religious principles, and traditions that may be
Public Health Emergency Planning – California
Laws and Regulations

Governor required to adopt a general State Emergency Plan and programs
necessary to mitigate emergencies.

Operational control over administration of State Emergency Plan vested in the Office
of Emergency Services.

Local plans and programs required to be coordinated with the State Emergency
Plan and with the federal government and other states, to the fullest extent possible.

Governor allowed to undertake emergency planning functions.
Public Health Emergency Planning – California Laws and
Regulations (con’t.)

Local political subdivisions allowed to provide mutual aid to one another during
a state of local emergency.

State Strategic Committee on Terrorism (SSCOT) required to evaluate the
potential threat of a terrorist attack, review California’s state of readiness to
prevent and respond to a potential attack.

Pursuant to the Emergency Supplemental Act of 2002 and the Defense
Appropriations Act of 2002, states are required to prepare plans for public health
enhancement and hospital planning and preparedness.
Declaration of Public Health Emergencies – Model Act

Authorizes the governor to declare a public health emergency and to define the
nature of the emergency, the political subdivisions or geographic areas subject to
the declaration, the conditions that caused the emergency, the duration of the
emergency, and the primary public health authority for responding to the
emergency.

Public health emergency defined as: “An occurrence or imminent threat of an
illness or health condition that is believed to be caused by bioterrorism or the
appearance of a novel or previously controlled or eradicated infectious agent or
biological toxin and that poses a high probability of a large number of deaths, a
large number of serious or long-term disabilities, or a significant risk of substantial
future harm to a large number of people in the affected population.”
Declaration of Public Health Emergencies – Model Act (con’t.)

Provides that declaration of a state of public health emergency shall activate the
disaster response and recovery aspects of state, local, and inter-jurisdictional
disaster emergency plans in the affected areas.

Gives the governor powers during a state of public health emergency to:

Suspend the provisions of any regulatory statute prescribing procedures for
conducting state business or the orders, rules, or regulations of any state
agency;

Utilize all available resources of the state government and its political
subdivisions;

Transfer the direction, personnel, or functions of state departments and
agencies;

Mobilize all or any part of the organized militia into service;

Provide aid to and seek aid from other states in accord with any interstate
emergency compact;

Seek aid from the federal government.
Declaration of Public Health Emergencies – Model Act (con’t.)

Requires the public health authority to coordinate all matters
pertaining to the public health emergency response of the
state.

Provides that a declaration of a state of public health
emergency may be terminated by executive order of the
governor or by a majority vote of the Legislature, or shall
terminate automatically after 30 days unless renewed by the
governor.
Declaration of Public Health Emergencies
– California Law and Regulations

Governor has general powers to declare a state of emergency in an area of
disaster or extreme peril to the safety of persons and property caused by
conditions that overwhelm local resources, such as fire, flood, epidemic, riot,
drought, sudden and severe energy shortages, plant or animal infestation or
disease.

Governor has emergency powers similar to those spelled out in Model Act in the
event of a state of emergency.
Declaration of Public Health Emergencies –
California Law and Regulations (con’t.)

A state of emergency may be terminated by proclamation of the governor
or by adoption of a concurrent resolution by the Legislature.

Local governments authorized to declare local emergencies, defined as
the existence of conditions of disaster or extreme peril to the safety of
persons and property caused by conditions such as fire, flood, epidemic,
riot, drought, sudden and severe energy shortage, plant or animal
infestation or disease, or earthquake which are beyond the resources of
the affected political subdivision.

Governing body of a political subdivision allowed during a state of local
emergency to promulgate orders and regulations necessary for the
protection of life and property.
Powers of Public Health Authority During a Public
Health Emergency or Disease Outbreak — Model Act


Public health authority required during a state of public health emergency to
use every available means to prevent transmission of infectious disease.
Examples of powers given to public health authorities during a state of public
health emergency:

Close, direct, evacuate or decontaminate any facility or material that is
reasonably believed to endanger the public health.

Construct, transport, store, maintain, renovate, distribute, or procure
including by condemnation any materials and facilities found reasonably
necessary to respond to the public health emergency.

Require a health care facility to provide services or the use of its facility if
reasonable and necessary to respond to the public health emergency.
Powers of Public Health Authority During a Public Health
Emergency or Disease Outbreak — Model Act (con’t.)






Control or limit egress to and from any affected public area, the movement of
persons within the area, and the occupancy of the premises therein, if such
action is reasonable and necessary to respond to the public health emergency.
Perform physical examinations and/or tests as necessary for the diagnosis or
treatment of individuals.
Vaccinate persons as protection against infectious or contagious disease.
Collect specimens from both living and deceased persons and to acquire any
previously collected specimens or test results that are reasonable and
necessary to respond to the public health emergency.
Treat persons exposed to or infected with disease.
Isolate or quarantine individuals or groups of individuals – including those who
refuse medical examination, testing, or vaccination – through petition to the trial
court, with a process for expedited court review.
Powers of Public Health Authority During a Public Health
Emergency or Disease Outbreak — Model Act (con’t.)





Adopt and enforce measures to provide for the safe disposal of infectious
waste as may be reasonable and necessary to respond to the public health
emergency.
Adopt and enforce measures for the safe disposal of human remains as
may be reasonable and necessary to respond to the public health
emergency.
Require in-state health care providers to assist in the performance of
vaccination, treatment, examination, or testing of any individual as a
condition of licensure or authorization.
Appoint and prescribe the duties of out-of-state health care providers as
may be reasonable and necessary to respond to the public health
emergency.
Authorize the medical examiner or coroner to appoint and prescribe the
duties of emergency assistant medical examiners or coroners as may be
necessary.
Powers of Public Health Authority During a Public Health
Emergency or Disease Outbreak — Model Act (con’t.)

Requires the state to pay just compensation to the owner of any
facilities or materials that are lawfully appropriated by a public
health authority, with exemptions.
Emergency Powers of Public Health
Authorities – California Laws and
Regulations

Allows local health officers to take preventive measures as are necessary to
protect against public health hazards during states of emergency or local
emergencies, as well as when they know or have reason to believe that any
case of a reportable disease or other contagious, infectious, or
communicable disease exists.

DHS and local health officers authorized to order isolation or quarantine for
any case of contagious, infectious, or communicable disease when
necessary to protect public health.

Allows persons whose property is taken or damaged in the course of use by
the governor in a state of emergency to be reimbursed. Authorizes the
governing body of a locality where property is destroyed to make provision
for compensation.
Due Process Protections — Model Act

Provides explicit due process protections, including notice and process of
court petition, hearing, and order but contains no explicit measures to address
cultural and language barriers that may impede observance of due process
rights.

Public health authority must petition court for order authorizing isolation or
quarantine of an individual or group of individuals.

Authority must provide notice to persons identified in the petition within 24
hours.

Hearing on petition must be held within five days of filing.

Court shall grant petition if, by a preponderance of the evidence, isolation or
quarantine is shown to be reasonably necessary to prevent or limit the
transmission of a contagious or possibly contagious disease to others.
Due Process Protections — Model Act (con’t.)

Individuals subject to isolation or quarantine may apply for order to show
cause for need to continue isolation or quarantine. Court must rule on
application within 48 hours of filing and schedule follow-up hearing within
24 hours of any order to show cause.

Court shall appoint counsel if necessary.

Public health authority may temporarily isolate or quarantine individuals
through written directive if delay would significantly jeopardize the public
health authority’s ability to prevent or limit the transmission of a contagious
or possibly contagious disease.
Due Process Protections — California Law
and Regulations

With limited exceptions, no statutory due process
protections.

California and U.S.Constitution contain protections
against deprivation of life, liberty, or property without
due process of law.
Protection of Personal Health Information –
Model Act

Allows transfer of medical information gathered in the process of medical
testing, treatment, vaccination, isolation, and quarantine to be shared
among persons who have a legitimate need for the information in order to
effectively provide treatment, research or investigation related to the public
health emergency.

Prohibits disclosure of protected health information by a public health
authority to others without written, specific informed consent.
Protection of Personal Health Information
– California Law and Regulations

Provides no specific exception in statute to general prohibition against
disclosure of medical information without written authorization of the
patient for information received from persons who have participated in
medical testing, treatment, vaccination, isolation, or quarantine
programs during a public health emergency.
State and Private Liability Protections –
Model Act

Provides liability protections for state personnel and private persons
and or entities that provide facilities or services in the course of a public
health emergency.

Provides that neither the state, its political subdivisions, nor, except in
cases of gross negligence or willful misconduct, the governor, the public
health authority, or any other state or local official referenced in the act,
is liable for death or injury to persons, or damage to property, as a result
of complying with the act or any rule or regulations promulgated
pursuant to the act during a state of public health emergency.
State and Private Liability Protections – Model Act (con’t.)

Persons owning real estate who voluntarily and without compensation
grant permits to use the real estate for sheltering persons during a state of
public health emergency are not liable for causing the death or injury of any
person or damage to property.

Persons, businesses or their agents who render assistance to the state or
its political subdivisions by contract during a state of public health
emergency are not civilly liable for causing death or injury to any person or
damage to property, except in the event of gross negligence.
State and Private Liability Protections –
California Law and Regulations

The state and its political subdivisions and their employees are protected from
liability for claims stemming from exercise of official functions or duties or failure to
exercise any discretionary duty or function during a state of emergency.

Extends to enrolled or registered volunteers or persons pressed into service during
a state of emergency or local emergency the same degree of responsibilities and
immunities as officers and employees of the state or its political subdivisions
performing similar work, including immunity from liability for personal injury or
property damage.

Physicians and other health care providers who render services during a state of
emergency or local emergency provided immunity, except for willful acts or
omissions.
Ideas on How California Can Improve its
Laws Relating to Public Health Protection

Improve public health emergency planning process.

Consider adopting emergency powers provisions contained in Model Act as a
supplement to existing emergency powers possessed by governor, local
governments, and local health officers.

Add due process protections contained in Model Act to existing public health
emergency powers statutes. Incorporate measures to deal with language and
cultural barriers that may hinder exercise of due process rights.

Clarify medical privacy laws to allow health care personnel responding to a disease
outbreak or public health emergency to receive and use medical information
gathered in the course of treatment, examination, vaccination, isolation, or
quarantine without first obtaining consent.