Administrative and Public Health Law

1. Administrative and Public Health Law An Introduction for MPH Students Edward P. Richards Director, Program in Law, Science, and Public Health Louisiana State University Law Center richards@lsu.edu http://biotech.law.lsu.edu

2. What is Administrative Law? • Administrative law is the law that governs agency practice • Not an adversarial system • Based on expert analysis and decisionmaking • Not argument of counsel and rules of evidence • Understanding administrative law principles is critical to effective public health practice

3. Public Health in the Colonies • Most of the population lived in poorly drained coastal areas • Cholera • Yellow Fever • Urban Diseases • Smallpox • Tuberculosis • Average Life Expectancy in cities was 25 years

4. Public Health Law Actions in Colonial America • Quarantines, areas of non-intercourse • Inspection of ships and sailors • Nuisance abatement • Colonial governments had and used Draconian powers • The Police Powers

5. Police Power • Police departments came later • Power to protect the public health and safety • Communicable disease control • Sanitation • Nuisance • Drinking water

6. Actions in the 1798 Yellow Fever Epidemic For ten years prior, the yellow fever had raged almost annually in the city, and annual laws were passed to resist it. The wit of man was exhausted, but in vain. Never did the pestilence rage more violently than in the summer of 1798. The State was in despair. The rising hopes of the metropolis began to fade. The opinion was gaining ground, that the cause of this annual disease was indigenous, and that all precautions against its importation were useless. But the leading spirits of that day were unwilling to give up the city without a final desperate effort. The havoc in the summer of 1798 is represented as terrific. The whole country was roused. A cordon sanitaire was thrown around the city. Governor Mifflin of Pennsylvania proclaimed a non-intercourse between New York and Philadelphia. (Argument of counsel in Smith v. Turner, 48 U.S. (7 How.) 283, 340-41 (1849))

7. Articles of Confederation • In effect between independence and the ratification of the Constitution in 1789 • Left all powers to the states • The states provided what support they wanted to the federal effort • Did not work during the War • Remember the stories about Washington's troops not having shoes?

8. Public Health in the Constitution • Federal Powers • Interstate commerce • International trade and travel • War powers • State Powers • Powers not given to the federal government • Police Powers

9. Is there a Federal Police Power? • Constitutional Debate • US Supreme Court says no, but ... • Can the Feds do local disease control? • CDC only comes in at the state's invitation • Public Health is state and local • Can the Feds require smallpox vaccinations? • Invasion Clause?

10. Limits of the Police Power • Very broad • Protect public health and safety • Must be prospective • Public health regulations are about preventing future harm • Must be civil, not criminal • The reason for the action, and not the results, determine whether it is criminal • Confinement in jail • Megan's laws and confinement of sexual predators

11. Public Health as the First Administrative Law • Among the first acts of Congress • Public health service hospitals and quarantine stations • State and Local Government • Boards of Health - Paul Revere sat on the Boston Board of Health

12. Constitutional Basis of Administrative Law • The US Constitution does not mention agencies • The founders did not anticipate that there would be much federal government • Administrative law doctrines have been shaped by Congress and the courts, within the constraints of the Constitution

13. Separation of Powers • Agencies are part of the executive branch of government • Created by legislatures • Reviewed by courts • Federal agencies are under the President • Independent agencies have appointed commissions • States can have multiple executives • AG, Insurance Commissioner, etc.

14. Legal Justification for Agencies • Expertise • Agencies are meant to have expert staff who manage complex problems • Efficiency • Agencies have more efficient enforcement powers because they are not limited by criminal law protections • Flexibility • Agencies can act without new legislation • Agencies can tap new expertise as needed

15. Enabling Legislation • Agencies are established by legislation • Establishes structure and mission • Budget • Can be detailed or broad • Protect the public health • Cheap electric power and plenty of it • Contrast with the ADA • Agency is limited by the legislation and the state and US constitutions

16. What do Public Health Agencies Do? Core Public Health Functions

17. Disease reporting • No right of privacy • No right to refuse reporting • Can inspect medical records • Child abuse and violent injury reporting • Also extended to medical procedures, occupational illnesses, use of scheduled drugs, and other areas of public health concern

18. Disease Investigation • Contract Tracing • Partner Notification • Investigations of business and food establishments • Public health data can be reported to the police, but it cannot be the basis of prosecution

19. Mandatory treatment and restrictions • Vaccination law • Jacobson - no free riders • No requirement for religious exception • VD/STI/TB, others • Can require testing or treatment • Can hold in jail if you refuse • Habeas Corpus is the remedy • Many states have weakened these laws due to political pressure over AIDS

20. Environmental Health • Food sanitation, drinking-water treatment, and wastewater disposal • Most public health orders are directed at environmental health problems. • Two central legal questions: • When does the government owe compensation to the owners of regulated property? • When can inspectors enter private premises to look for public health law violations?

21. Vital Statistics • Birth and death records • Disease registries

22. Agency Legal Functions What are the legal tools to carry out these functions?

23. Rulemaking - Public Health Regulations • Legislature must delegate its power • Why promulgate regulations? • Gives direction to regulated parties • Allow public participation • Harmonize practices between jurisdictions • Limits the issues if there is Judicial Review • Can be overruled by the legislature

24. When Agencies Make Decisions – Adjudications • How is an adjudication different from a rule? • Specific facts and specific parties • How is an adjudication different from a trial? • Expert decisionmakers • Agency makes the final decision so decisions are uniform (Current controversy in LA) • Conflict of interests can be a problem

25. Permits and Licenses • Permits • Licenses • Rights for duties • Issued on Set Criteria • Conditioned on accepting regulatory standards • Warrantless inspections

26. Inspections • Legally classified as an adjudication • License and permit holders • No warrant • Administrative warrants • No probable cause • Area warrants • Limits to administrative warrants • Cannot be used to undermine criminal due process

27. Enforcement Actions • Civil fines • Injunctions to stop dangerous activities • Court orders to force compliance with public health regulations • Criminal prosecution for disobeying a court orders

28. The Advisory and Consultative Role • Public health is about prevention as well as enforcement • Opening a new restaurant • Designing food handling area • Training kitchen personnel • Managing day to day problems • The major role of the CDC

29. Acting in an Emergency • Power expands with necessity • Courts do not block emergency actions • Knowing what to do is what matters • Emergency powers laws are easy to pass, but do not solve resource and expertise problems • Law matters a month after • The more laws you pass, the more loopholes you can create

30. Limits on Agency Power

31. Due Process in Public Health • When do you get a hearing? • Classic Food Sanitation Case - North American Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908) • Is there a Constitutional Right to a Hearing before the Health Department Acts? • Is this a taking - Must the state pay for the chicken? • Post-action hearings can satisfy due process • Judicial protection through injunctions

32. What if You are Quarantining People? • Must there be a hearing first? • Not under the US Constitution • (Some states require hearings by statute) • Must there be a statutory provision for a hearing? • Constitutional basis for Habeas Corpus • Right to contest your confinement • Limiting Judicial Review • Requiring Administrative Appeal

33. Appealing Rulemaking • The agency must have the legal power to make rules • The rule must be consistent with the agency's legal mission • The agency must follow the proper procedures • If this is done, there is no legal right to challenge the rule in court • You can ask the agency to reconsider a rule

34. Appealing an Adjudication • The agency may not be bound by the recommendations of the administrative judge • The agency can require an internal appeal • The agency can set deadlines for appeals • Exhaustion of remedies • Required before judicial review • Unless the agency has acted illegally

35. Judicial Review of Agency Actions • Standards is set by the legislature • De novo • Arbitrary or capricious - most common • No review – smallpox compensation act • Cannot limit constitutional right of review to allow illegal actions • Using public health powers to punish • Using public health power for a taking

36. Can You Challenge the Agency's Policy Decisions - St. Mark's Baths ... defendants and the intervening patrons challenge the soundness of the scientific judgments upon which the Health Council regulation is based .... They go further and argue that facilities such as St. Mark's, which attempts to educate its patrons with written materials, signed pledges, and posted notices as to the advisability of safe sexual practices, provide a positive force in combating AIDS, and a valuable communication link between public health authorities and the homosexual community. While these arguments and proposals may have varying degrees of merit, they overlook a fundamental principle of applicable law: "It is not for the courts to determine which scientific view is correct in ruling upon whether the police power has been properly exercised. The judicial function is exhausted with the discovery that the relation between means and end is not wholly vain and fanciful, an illusory pretense."

37. State Variations • Most states are more suspicious of agencies than is the United States Supreme Court • States tend to give greater rights of judicial review • States often require more agency due process • Not unreasonable, given the limited expertise of many state agencies

38. Political Control of Agencies • Agency heads are political appointees • Federal independent agencies are different • Some states have boards of health, but not much improvement • Agency goals are subservient to other political agendas • Salary is also a political control

39. Impact of Political Control • Feds • Conformation battles at the federal level • Can still get talented people at the top • More problems at midlevel, esp. for experts • States • Salaries limit expertise in many positions • Very difficult to get real experts at the top because of improper political pressures

40. Impact on Public Health • Future of Public Health • IOM 1988 • No career track for high level public health professionals • Fired for political disputes • No pension rights, no severance, not contracts • You cannot stay in public health if you protect the public health • Do agencies have expertise any more?

41. Study Problem • Bathhouses in LA

42. Bathhouse History • Stonewall Riots in 1969 • Beginning of the gay rights movement • Politicians realize the power of gay voting blocks • Bathhouses • Originally really steam baths, but the old guys died off • Became commercial sex clubs

43. Disease Epidemiology in Bathhouses • Exposure patterns • 10-20 contacts a night • 1000+ contacts a year • Everything is an STD • As contact frequency goes up, overall transmission increases, even if the disease is not very contagious

44. Transmissibility (rough) Contact efficiency X number of contacts_________________________________ percent of immune/infected persons

45. Hepatitis B • Sexually transmitted, but low efficiency • Gonorrhea - about 100% efficient • Bathhouses • Lots of contacts • Lots of uninfected people • Quickly became endemic • Also a syphilis epidemic and lots of gonorrhea • No action to close the bathhouses because of politics

46. What did this mean for HIV? • HIV came into the US in the late 1970s • Hard to transmit sexually • More contacts, more transmission • Co-infection with other STDs increases transmission • Bathhouses allowed the infection to spread rapidly in gay men • 500,000 infected before we figured out what was happening

47. Bathhouses today • Some states closed them in the mid 1980s • Many went broke because their customers died • Some never closed • Now they are reopening as a new cohort of young gay men comes of age without knowledge of the AIDS holocaust • Should we close them?

48. Failed efforts • New Orleans tried to use zoning violations • Said they were not really health clubs • Already zoned for health clubs • Presumption for the owners in zoning denials • Court said they met the zoning criteria • This was just an end run

49. What would be a better attack? • General Powers • Keeping a disorderly house • Criminal violation for keeping a place where criminal activity goes on • What are the crimes? • Unsafe sex can be reckless endangerment • LA Crimes against Nature Law is probably unconstitutional after the recent United States Supreme Court case on sodomy