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Public Health and The Law Robert Kaman, JD, PhD The Summer Institute 2006. Public Health and The Law The Constitutional Basis for Public Health Law Public Health Law and the Bill of Rights The Legal Framework for a Response to Bioterrorism Isolation and Quarantine. Public Health and the Law.

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public health and the law robert kaman jd phd the summer institute 2006

Public Health and The LawRobert Kaman, JD, PhDThe Summer Institute2006

Public Health and The Law

The Constitutional Basis for Public Health Law

Public Health Law and the Bill of Rights

The Legal Framework for a Response to Bioterrorism

Isolation and Quarantine

public health and the law
Public Health and the Law
  • Public Health is grounded in the law, and limited by it as well
  • Several basic functions in public health, all targeted to the maintenance of a healthy society:
    • Program development
      • Responding to technological advances
    • Public health enforcement
      • Sanctions for non-compliance
what is the law
What is the “Law”
  • “A set of enforceable commands based on legislative authority and authorized to be carried out by the executive, including the administrative branches of government, such as health departments.”
    • Designed to prevent us all from intentionally or unintentionally hurting or killing each other.
    • Empower agencies to provide services
      • Services to people to advance their health
        • Well baby clinics, school health, immunization
      • Services to communities to prevent the spread of disease
        • Environmental programs, sanitation, waste disposal
The Constitution and Legal Sources of Public Health Powers and the Place of Public Health in Government
the relationship between public health and the law
The Relationship Between Public Health and the Law
  • Transition of Public Health during the Twentieth Century:
    • Regulatory Orientation  Service Orientation
    • Reliance on legislative authorization
      • Public Health Sections of the US Code
      • State Public Health Law
      • Local Codes and Ordinances
bases of authority for public health programs and activities
Bases of Authority for Public Health Programs and Activities
  • Basis of Public Health Law has its origin in State and local levels
  • Federal government also has constitutionally-granted authority
sources of state and local power
Sources of State and Local Power
  • Two interpretations:
    • States granted power to regulate public health by “omission:” not mentioned in the US Constitution, and the Tenth Amendment says that “…all powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States….”
    • States have the sovereign “police power:” … the power to provide for the health, safety and welfare of the people.
      • State government, which preceded the federal government, has sovereign plenary powers
      • The police power is a sovereign power.
state and local power
State and Local Power
  • The State has the police power, and in turn, delegates it to lower levels of government: county, municipal, city or village level
  • Many state and local regulatory programs rely on this police power to provide health and sanitary codes, hospital and nursing home codes, housing and plumbing codes, and health services such as municipal hospital systems and school health services.
source of federal power
Source of Federal Power
  • Federal government is not a government of plenary powers – it only has the powers that the states originally granted to it through the federal constitution. Hence it does not have the police power – to provide for the general health, safety and welfare of the people.
  • Federal powers in public health rest largely on two constitutionally-assigned authorities:
    • The Commerce Clause (Article I, Section 8, Clause 3) ”…the power of Congress to regulate commerce with foreign nations and among the several States,…”
    • The so-called taxing and spending power (Article 1, Section 8, Clause 1) “
the commerce clause power
The Commerce Clause Power
  • Allows Congress to regulate whatever passes in commerce between the states, as well as whatever “affects” interstate commerce. Usually in the form of federal statutes, such as
    • The Federal Food, Drug and Cosmetic Act
    • The Federal Meat Inspection Act
    • The Poultry Products Inspection Act
    • The Federal Insecticide, Fungicide, and Rodenticide Act
    • The Toxic Substances Control Act
    • The Consumer Products Safety Act
    • The Fair Labor Standards Act
    • The Occupational Safety and Health Act (health and safety work conditions)
the affect on interstate commerce
The “Affect” on Interstate Commerce
  • Expands the reach of the Commerce Clause
    • Workers in a building in which interstate commerce is conducted
    • Products produced locally, since it is impossible to tell them from those produced in another state (e.g.: chickens)
the taxing and spending power
The Taxing and Spending Power
  • Federal Grants-in-Aid (indirect regulation)
    • Grants federal money to state and local governments, which, if they accept the money, must adhere to federal standards (e.g.: Hill-Burton (1944) hospital construction, now replaced by US Code Subchapter IV, on Construction and Modernization of Hospitals and Other Medical Facilities)
      • Housing and urban renewal
      • Public waste-treatment plants
      • School Lunch
      • Health Planning
      • STD prevention
      • Primary Health Care Centers
      • Community Health Centers….
    • Medicaid (Title XIX) provides money to the states to care for the medically indigent
    • Medicare (Title XVIII) is not a grant-in-aid, but is part of Social Security
grants in aid
  • Regulatory
    • Environmental Pollution (Resource Conservation and Recovery Act)
    • Categorical Grants now replaced by Block Grants
      • Federal government designates the general purpose of the grant, but allows state or local government to designate specific expenditures (e.g.: urban housing)
government departments and agencies in public health
Government Departments and Agencies in Public Health
  • Federal Organization
    • Department of Health and Human Services (DHHS)
      • Public Health Service (PHS)
        • Surgeon General of the United States
      • NIH
      • CDC
      • Indian Health Service (HIS)
      • Social Security Administration/Health Services Administration
      • FDA
      • EPA
    • OSHA (Department of Labor)
    • Military Health (Department of Defense)
    • Department of Homeland Security (bioterrorism)
    • Department of Agriculture (plant diseases and epidemics)
state and local organization
State and Local Organization
  • Each of the fifty states has a state health agency authorized by specific state law.
  • State police power allows delegation of authority to both state and local agencies.
  • States differ in government organization: Texas has home rule and general law cities.
  • Basis is usually state health code, and local (county, city, town, village) public health ordinances, rules and regulations.
  • Centralized or decentralized:
home rule versus general law cities
Home Rule versus General Law Cities
  • Texas has both: The Texas system is legislative, not constitutional
  • Cities under 5,000 population are general law cities, and abide by state code
  • Cities over 5,000 are home rule cities, although their ordinances must not be in conflict with state law (courts usually rule in favor of state in disputes)
the need for intergovernmental cooperation
The Need for Intergovernmental Cooperation
  • Region-wide problems may cross several jurisdictional boundaries
    • Transportation
    • Air/water pollution/supply
    • Waste management
  • Texas has created several public health regional districts
    • Objective is to make standards uniform
    • Creates problems with the hierarchy of laws
hierarchy of laws
Hierarchy of Laws
  • Federal law usually reigns – except if state laws are more stringent
  • Even if local law is in conflict with federal regulation, it is lawful until challenged.
  • Supremacy Clause of the US Constitution, Article VI, makes the “…Constitution, and the Laws of the United States, which shall be made in Pursuance thereof the supreme law of the Land.”
  • Concept of Preemption: the Court has ruled that if the federal government seeks to exercise exclusive authority in a field, state and local law is preempted, and must yield
    • Air emission standards for new cars
    • Noise emission standards
    • Nuclear power plant safety
  • Protection of Interstate Commerce
    • A local regulation will be invalidated if it places an undue burden on interstate commerce, unless it protects against the spread of disease, quarantine of diseased animals, or contaminated produce.
recent advances that stimulate the creation of new public health law
Recent Advances that Stimulate the Creation of New Public Health Law
  • Technology and changing economies require new laws:
    • Medicare and Medicaid (1965; 2005)
    • Reproductive Rights (Roe v. Wade, 1972)
      • Abortion, Cloning, Genetic Engineering
    • Environmental Laws
    • Physician Assisted Suicide
    • Human Genome Project
    • STD’s/HIV AIDS
    • Tobacco
    • Infectious Disease/Bioterrorism
    • Health Care Fraud/Compliance
the concepts of equal protection of the laws and of due process
The Concepts of Equal Protection of the Laws and of Due Process
  • In our dual (federal and state) system of governance, individual rights are protected at both levels:
    • Federal Bill of Rights
    • Fourteenth Amendment:
      • All persons born or naturalized in the US, and subject to the jurisdiction thereof, are citizens of the US and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
    • Protects all rights that are fundamental to the concept of ordered liberty.
    • Have the right to seek the protection of the courts if those rights are violated.
equal protection
Equal Protection
  • Concerned with the comparative treatment of individuals.
  • No governmental discrimination in the granting of privileges, or imposing burdens.
  • Allows differentiation between people or activities on reasonable grounds.
    • Classifications that are reasonably related to a legitimate government purpose are permitted.
      • Distribution of vaccine; licensing requirements, etc.
    • Classifications not based on reasonable grounds (e.g. race) are prohibited.
supreme court deliberations regarding equal protection
Supreme Court Deliberations regarding Equal Protection
  • Three approaches to examine equal protection:
    • Classifications rationally-related to the purpose of the statute (activities involving economic and liberty interest in the pursuit of a profession, occupation or trade) allowed
    • Classifications that burden a fundamental right (free speech, right to worship, right to vote, right to travel) are examined by strict scrutiny, and are prohibited.
    • Classifications based on gender and age are examined by an intermediate review.
due process
Due Process
  • For the Public Health Officer, think “notice” and “hearing.”
  • “No person shall be deprived of those rights that are implicit in the concept of ordered liberty.” Every individual shall be treated with at lease a minimum of “decency and fairness.”
    • Fifth Amendment of the Bill of Rights
    • Fourteenth Amendment (added after the Civil War) extends due process to the States
      • From the First Amendment: the Establishment Clause (separation of church and state), freedom of religion, freedom of speech and press, and the right to assembly.
      • From the Fourth Amendment: freedom from unreasonable searches and seizures
      • From the Fifth Amendment: protection of the privileges against self-incrimination and double jeopardy
      • From the Sixth Amendment: the right to a speedy, public trial before an impartial jury, the right to confront witnesses and the right to counsel
      • From the Eighth Amendment: freedom from cruel and unusual punishment.
  • For the public health officer, the courts will usually uphold enforcement actions, as long as due process has been pursued.
constitutional protection against undue interference with personal liberty
Constitutional Protection Against Undue Interference with Personal Liberty
  • Right of Privacy
    • Supreme Court judicial construction, not mentioned in the Bill of Rights. Line of cases important to Public health:
      • Jacobson v. Massachusetts (1905)
      • Griswold v. Connecticut (1965)
      • Roe v. Wade (1973)
        • Series of cases on abortion
      • Bowers v. Hardwick (1986)
      • Lawrence v. Texas (2003)
  • In Griswold, “Emanations…of…penumbras…” (J. Douglas)
    • First Amendment right of marital association
    • Third, Fourth and Fifth Amendments’ right of protection against police intrusion of the home
    • Ninth Amendment recognition of the existence of non-enumerated rights
    • A recognition of the right of privacy of sexual relations generally.
  • In Roe v. Wade:
    • “This right of privacy, whether it is founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

-J. Blackmun

  • The Roe right of privacy is not absolute, but complements the State’s increasing level of government interest, as the term of pregnancy progresses:
    • First trimester primarily woman’s right
    • Second trimester intermediate
    • Third trimester primarily State’s compelling interest in the unborn child
attacks on roe
Attacks on Roe
  • Line of cases (e.g.: Akron v. …Center for Reproductive Rights (1983) ; Doe v. Bolton (1973)…) requiring second trimester abortions to be performed in hospitals
  • Requirement for approval by committee or second physician (Doe v. Bolton, (1973)...)
  • Line of cases (e.g.: Bellotti v. Baird (1979)…); requiring approval by husband or parents
    • Texas legislature enacted parental consent law that has not yet been challenged
  • State not obligated to pay for non-therapeutic abortions (Maher v. Roe (1977)…)
  • Constitutional protections extended to “persons;” A fetus becomes a person only at birth.
  • Since a woman’s right to terminate a pregnancy is “constitutionally” determined, can only be abolished by constitutional amendment, or a reversal of opinion by the Supreme Court – Congress, to its immense relief, cannot.
webster v reproductive health services 1989
Webster v. Reproductive Health Services (1989)
  • Constitutional challenge of a Missouri law that that sought to regulate the performance of abortions in that state.
  • The law’s preamble stated that the life of each human being begins at conception and that unborn children have protectable interests in life, health and well-being, equivalent to same rights enjoyed by other “persons.” (upheld)
  • Law required physician to ascertain viability of fetus. (upheld)
  • Law prohibited use of public resources to perform non-therapeutic abortion (upheld), or to provide pro-abortion counseling. (not addressed)
  • In a mixed decision, a plurality upheld the Missouri law in most instances, but did not overrule Roe; its significance is that it still leaves that key issue to the future.
partial birth abortion stenberg v carhart 2003
Partial Birth AbortionStenberg v. Carhart (2003)
  • “…to make criminal the performance of a partial birth abortion violates the federal constitution as earlier interpreted in Roe, and in the Casey decision because the (Nebraska) law lacks any exception for the preservation of the health of the mother,and because it imposes an undue burden on the woman’s ability to choose a D&E abortion, thereby unduly burdening the right to choose abortion itself.

-J. Dreyer

the privacy right in other medical treatment decisions
The Privacy Right in other Medical Treatment Decisions
  • A competent adult has the right to make decisions relating to medical treatment
  • A person is free to seek or refuse treatment for any illness, injury or defect.
  • A person is free to refuse treatment to sustain life (the right to die, but not a “right” to commit suicide).
  • Distinction between euthanasia and the withdrawal of life support.
  • Surrogate decisions for incompetent patients– best interest of the patient by the court
  • Balance state’s interest in protection of life against patient’s interest in a dignified death
  • Advanced directives
  • Physician-assisted suicide
  • Parents’ withholding of treatment for children – State intervention (In re Infant Doe (1982)…) led to the Child Abuse Prevention and Treatment Act
informational privacy
Informational Privacy
  • The right of privacy extends (from decisional privacy – abortion, treatment, sexual activity – to informational privacy - the right to limit and control other person’s knowledge of intimate facts about our state of health, our diseases, our genetic propensities, and our life expectancy.
  • This privacy right is best understood within the context of the patient health information sections of HIPAA – the Health Insurance Portability and Accountability Act
hipaa guidance from the cdc and the us department of hhs
HIPAA: Guidance from the CDC and the US Department of HHS
  • Introduction and General Overview – transition from paper to electronic format
  • Impact on Public Health
  • Who is covered
  • Types of Health Information
    • De-identified Information
    • Limited Data Sets
    • Use or disclosure of PHI
    • Vested rights of individuals in their PHI
  • Required PHI disclosures
  • Permitted PHI disclosures
  • Other authorized disclosures

8. The Privacy Rule and Public Health

9. Disclosures for Public Health Purposes

10. Requirements for covered entities

11. Notice of Privacy Practices of covered entities

12. Minimum Necessary standard

13. Public Health Authorities performing covered


14. HIPAA and Public Health Research

15. HIPAA and other law, including pre-emption

16. Additional materials in the Guidance; Registries

17. Enforcement and Penalties

18. No private right of action – enforcement lies with

DHHS – delegated to the OCR

freedom of religion and separation of church and state
Freedom of Religion and Separation of Church and State
  • Establishment clause protects religious beliefs, not religious practices
  • Does not exempt religion from the normal application of law to protect public health.
    • Churches must obey ordinances relating to health
    • Sectarian schools must obey as well
  • Some religious exemptions have been granted (immunizations) for both organized and individual beliefs
  • Faith-based services receiving government funds may present basis for establishment clause challenge
  • Supreme court ruling on the “Chastity Act:” not unconstitutional even though its effort to discourage abortion counseling agrees with the tenets of some religions
freedom of speech press and assembly
Freedom of Speech, Press and Assembly
  • Constitutional protection of freedom of speech: anti-littering laws can prohibit some commercial material, but may not prohibit the distribution of non-commercial messages bearing political, religious or other non-commercial messages.
  • Commercial advertising does not enjoy First Amendment protection.
  • Free speech extends to health professions advertising: pharmacies, physicians, etc. prohibited by traditional professional standards of “misconduct.”
    • Based on value to the consumer
    • Must not be misleading.
  • Free speech allows publication of unsubstantiated texts, but when associated with sale of un-efficacious drugs or devises, may be seized as mislabeled products.
  • Freedom of assembly may be disallowed in light of a genuine threat of naturally-occurring health emergencies, or instances of bioterrorism
protection against unreasonable searches and seizures
Protection Against Unreasonable Searches and Seizures
  • Fourth Amendment right:
    • “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…”
  • Extended to include the privacy right, and to be free from unwarranted government interference.
  • May be countered by Public Health Law enforcement (administrative searches and inspections) which will be examined in detail in a later chapter.
  • “Reasonable” searches may be allowed without a warrant. Texas State Code may allow such searches by a duly authorized public health official.
privilege against self incrimination
Privilege Against Self-Incrimination
  • Fifth Amendment right of a defendant in a criminal trial to refuse to give testimony against himself may apply to the extent that a violation of public health law may be prosecuted as a criminal misdemeanor.
  • Highly regulated industries, and licensed activities, such as health care, pharmaceutical manufacture, nursing homes, etc. are not protected. Required report submissions may be subpoenaed, even if self-incriminatory.
  • Self-disclosures may be protected to encourage remediation.
rights of accused persons
Rights of Accused Persons
  • Misdemeanor prosecution of public health law violations must adhere to same constitutional protections as apply in other areas (speedy and public trial, right to know the details of the charge, right to confront witnesses, right of subpoena, jury trial, counsel representation, or court appointed counsel, reasonable bail, double jeopardy protections, and cruel and unusual punishment).
writ of habeas corpus
Writ of Habeas Corpus
  • Judicial order, commanding that the detained person be brought before a magistrate to assess the lawfulness of the detention.
  • Applied to patients in hospitals, sanitariums, and in cases of quarantine and isolation.
bio terrorism robert kaman jd phd

Robert Kaman, JD, PhD




-- Tom Clancy

“The Sum of All Fears”

the failure of the public health response
The Failure of the Public Health Response
  • Pearl Harbor all over again? Following 9-11 and the Afghanistan attacks, we were subjected to an anthrax attack.
    • Health officials did not realize that powder as fine as chalk dust might leak from an envelope
    • Postal workers were not tested and treated as quickly as congressional staffers
    • Public statements about the size and hazards of the spores were inconsistent and confusing
    • Still no guilty parties identified
what do we have now
What do we have now?
  • Ill-funded system
  • Fragmented
  • Highly respectful of personal choice
  • Founded on antiquated laws which actually thwart decisive public health action
    • They often prohibit data-sharing between public health, law enforcement and emergency management agencies;
    • They do not provide adequate powers for controlling property and persons in the event of bio-terrorism.
  • Unprepared for a nationally-coordinated response to crisis.
biological warfare

Biological Warfare

The intentional use of microorganisms or toxins derived from living organisms to produce death or disease in humans, animals, or plants

biological warfare history
Biological Warfare History

● 14th Century: plague at Kaffa

● 18th Century: smallpox blankets

● 1943: USA program established

● 1953: Defensive program established

● 1969: Offensive program disestablished

● 1979: Sverdlovsk Anthrax incident

● SE Asia: Yellow Rain

● London, Virginia: Ricin

the sverdlovsk incident
The Sverdlovsk Incident

● April-May 1979

- 66 Anthrax fatalities

● 1988

- Soviets present data:

● 96 cases

● 79 gastrointestinal

● May 1992

- Yeltsin admits “military developments”

soviet biological warfare priorities agents likely to be used
Soviet Biological Warfare PrioritiesAgents Likely to be Used

● Plague

● Anthrax

● Botulism

● VEE (Venezuelan equine fever)

● Tularemia

● Q Fever (Australian rickettsial infection)

● Melioidosis (Pseudomonas Pseudomallei)

● Typhus


“There were more INSTITUTES working on Plague in the USSR than PERSONNEL working on Plague in the USA”

-- Dr Ken Alibek

advantages of biological warfare are biologicals the ultimate weapon
Advantages of Biological Warfare:Are Biologicals the Ultimate Weapon?

● Agents easy to procure

● Inexpensive to produce

● Can disseminate at great distance

● Agent clouds invisible

● Detection quite difficult

● First sign is illness

● Overwhelms medical capabilities

● Simple threat creates panic

● Perpetrators escape before effects

● Ideal terrorist weapon

acquisition of etiologic agents
Acquisition of Etiologic Agents

● Multiple Culture Collections

● Universities

● Commercial Supply Houses

● Foreign Laboratories

● Field Samples or Clinical Specimens

delivery of hazardous biologic material
Delivery of Hazardous Biologic Material

● Letters

● Packages

● Cultures

● Person – to – Person

● Airborne Distribution



● Not Typical First Responders

● Bio-terror First Responders

Health Care Providers

Public Health Officials

● All Organizations Involved

biological warfare agreements
Biological Warfare Agreements
  • 1925 Geneva Protocol
  • 1969 Nixon renounces Biological Warfare
  • 1972 Biological Weapons Convention
  • 1975 Geneva Conventions Ratified
us biological weapons policy
US Biological Weapons Policy
  • No use under any circumstance
  • Research limited to defensive measures
  • We possess NO weaponized biologicals
  • Previous weapons stocks destroyed
  • Destruction supervised:


- DNR of AR, CO, MD

- Dept of HHHS

destroyed u s biological warfare agents
● Incapacitating

- Brucella suis

- Vee virus


- Q fever agent

Destroyed U.S. Biological Warfare Agents

● Lethal

- B. anthracis

- Botulinum toxins

- F. tularensis

● Anticrop

- wheat stem rust

- rye stem rust

- rice blast

the threat
The Threat
  • In an era of intercontinental travel, the US is vulnerable to epidemics of potentially massive proportion:
    • Anthrax
    • Multi-drug resistant tuberculosis
    • AIDS
    • West Nile Virus
    • Smallpox
    • Ebola
    • SARS
solution new federal and state laws
Solution?: New Federal and State Laws
  • Mobilization of needed resources and the permission - no – the requirement to share information and to establish interagency (public health, law enforcement, emergency management) cooperation
  • Effective utilization of the medical technology we possess (antibiotics, vaccines, other biological security measures) to cope with the threats that we will face
  • Willingness to sacrifice certain virtues of personal autonomy against the larger backdrop of the common good.

● Crisis Management

- Measures to anticipate, prevent, and/or resolve a terrorist threat or incident

● Primary Responsibility: Federal Government

● Lead Federal Agency: FBI

● Consequence Management

- Measures to alleviate the damage, loss, hardship, or suffering caused by incident

● Primary Responsibility: State/Local Government

● Lead Federal Agency: FEMA, coordinating Federal

● Consequence Management support to the state

state programs the model state emergency health powers act msehpa
STATE PROGRAMS:The Model State Emergency Health Powers Act (MSEHPA)
  • Principal Author: Lawrence O. Gostin, JD
    • Professor and Director
    • Center for Law and the Public’s Health
    • Georgetown University Law Center, Johns Hopkins University and the CDC
    • Washington, DC

Five basic public health functions to be facilitated by the MSEHPA:

  • Preparedness
    • Takes effect immediately
  • Surveillance
    • Takes effect immediately
  • Management of Property
    • Takes effect only after governor declares emergency
  • Protection of Persons
    • Takes effect only after governor declares emergency
  • Public Information and Communication
what is a public health emergency
What is a Public Health Emergency?
  • “The occurrence of imminent threat of an illness or health condition caused by bio-terrorism or a novel or previously controlled or eradicated infectious agent or biological toxin. The health threat must pose a high probability of a large number of deaths of serious disabilities in the population.”
  • Creates a Public Health Emergency Planning Commission which
    • Must deliver a plan for responding to a public health emergency within six months of its formation.
    • Fifteen or more elements:
      • declaration,
      • central coordination,
      • organization of resources,
      • compliance with reporting requirements,
      • engagement of the judicial system,
      • population evacuation,
      • housing and feeding plan,
      • organization of personnel,
      • vaccination,
      • treatment of persons exposed,
      • disposal of infectious waste and human remains,
      • isolation and quarantine plan,
      • tracking,
      • involvement of city and county government in the above,
      • cultural, ethnic and religious relevance plan,
      • other measures that may be deemed necessary.
the legal response
The Legal Response
  • What will Texas do? In the 2003 session, Senate Bill 399 was introduced by Letitia van Puttin, based on the MSEHPA.
    • “An act relating to the powers of the governor and certain state agencies relating to public health, including public health emergencies.”
  • The legislature failed to vote on the final bill, and it was not added to the special session agenda.
  • Texas did pass a homeland security bill, which contains some elements of the MSEHPA
  • Texas did not pass comprehensive legislation in the 2005 session regarding a response to a bio-terrorist attack
local actions
Local Actions
  • Tarrant County Public Health Department created three 3-member Health Response Teams (HRT’s) to respond to bio-terrorism
    • Investigation, assessment and coordination of response to suspected bio-terrorism
    • Coordinate response with law enforcement and hazmat officials
    • Receive and deliver bio-terrorism training on medical recognition of signs and symptoms of biological agents
restricting individuals for the sake of public health isolation and quarantine
Restricting Individuals for the Sake of Public Health: Isolation and Quarantine
  • During a bio-terrorism attack that involves the potential for mass casualties or disabilities, public health authorities may need to employ powers that restrict individual activities and behaviors
    • Authorities can quarantine or isolate persons exposed to or infected with a contagious disease during a public health emergency.
    • Authorities can encourage persons to be vaccinated or treated where necessary to prevent the spread of a contagious disease.
    • Persons who refuse to be vaccinated or treated may, if needed, be quarantined or isolated.
Balancing Individual Rights with Health and Welfare of Society During a Public Health Emergency - Revisited
  • What are the modern constitutional criteria for exercising confining public health powers?
    • A compelling state interest in confinement. Only persons that are truly dangerous (i.e. pose a significant risk of transmission) can be confined.
    • A “well-targeted” intervention. Must not be over- or under-inclusive.
    • The least restrictive alternative. Avoid confinement if less drastic means are available.
    • Procedural Due Process. Court order, followed by a hearing with counsel to contest the confinement, unless emergency circumstances demand otherwise.
isolation and quarantine
Isolation and Quarantine
  • Isolation: the separation and restriction of movement of ill people to stop the spread of that illness to others
  • Quarantine: the separation and restriction of people who have been exposed to contagious illness and may be infected but are not yet ill.
  • Separating exposed and infected people and restricting their movements is intended to stop the illness.
judicial history 1
Judicial History-1
  • Jacobson v. Massachusetts , 197 US 11 (1905)
    • An early example of society’s welfare winning out over individual rights
      • Jacobson refused to receive a smallpox vaccination following the order of the Cambridge board of health which required the “vaccination and re-vaccination of all the inhabitants thereof who had not been successfully vaccinated.”
      • Jacobson invoked the Fifth Amendment (“ person deprived of ..liberty, ..without due process of law.”)
      • Also claimed the police power of the state did not extend to compulsory vaccination
      • Court held that indeed, police power did extend to that level
      • Also held that the rights granted to the individual were not absolute, but that it was “…a fundamental principle that persons shall be subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the State.”
      • Such a restraint or burden can easily be construed to include isolation and quarantine when appropriate.
judicial history 2
Judicial History-2
  • People et rel. Baker et al. v. Strautz, 386 Ill. 360 (1944)
    • Two women arrested on a charge of prostitution, and suspected of suffering from a communicable venereal disease
    • Refused to be examined; court denied bail unless they agreed to the examination
    • Basis for their refusal is again based on the Fifth and Fourteenth Amendments
    • Court rules in favor of the State: “.. The power to detain a person who is suspected of having a contagious disease rests in the police power of the State; …when a State employs its police power to safeguard the public health, it may act in a summary manner even though the result is to deprive a citizen of his liberty.”
judicial history 3
Judicial History-3
  • Best v. Bellow, 2003 WL 21767656
    • Plaintiff Best claims defendants Bellevue Hospital Center illegally detained him after doctors diagnosed him with active tuberculosis
    • Court held that defendants determination that Best posed a threat to the public health was reasonable, and there is a substantial government interest in depriving him of his liberty in order to protect the community.
    • Also, strict compliance with the city health code satisfied the plaintiff’s due process rights.
take away lesson
Take Away Lesson
  • The courts, supported by the Constitution, have always provided public health officials with the authority to invoke the police power to protect the health and welfare of society at the expense of individual liberties.
  • The critical decision for public health authorities during a bio-terrorism emergency is whether that extends to the sacrifice of individual civil liberties versus the restrictive measures of isolation and quarantine.
criteria for confinement repeated again
Criteria for Confinement Repeated - Again
  • There must be a compelling interest that is furthered by civil confinement; only persons that are truly dangerous can be confined
  • Interventions that confine individuals must be well-targeted to accomplish public health objectives
  • Least drastic means must be used
  • Persons subject to confinement are entitled to some form of procedural due process; court order, hearing, counsel.
Process for Determining Whether Isolation/Quarantine is an Appropriate Response to a Bio-terrorism Threat to US
  • Initial Authority for Isolation and Quarantine held by local or state public health officials
  • When threat expands to more than one community, or more than one jurisdiction within the state, then the state assumes the authority
  • When a bio-terrorism event crosses, or threatens to cross state lines, then the federal government assumes the authority to enact an isolation or quarantine
  • If this occurs, then as mandated by legislation, the president authorizes, and the CDC implements
  • The CDC also has authority to enact a quarantine if an outbreak occurs while travelers are entering the US (SARS)
cdc s quarantine authority
CDC’s Quarantine Authority
  • Title 42 US 264 [Section 362 of the Public Health Service (PHS) Act]; http://www.cdc/ncidod/dq/42USC264.htm
    • Assigns the Secretary of HHS responsibility for preventing the introduction, transmission and spread of communicable diseases from foreign countries into the US
    • CDC is empowered to detain, medically examine, or conditionally release persons suspected of carrying a communicable disease
to what diseases does cdc s quarantine authority apply
To What diseases does CDC’s Quarantine Authority Apply
  • Under the PHS Act, the list of diseases for which quarantine is authorized must be specified in an Executive Order of the President, on recommendation of the HHS Secretary.
  • Since 1983, this list has included:
    • Cholera, diphtheria, infectious TB, plague, smallpox, yellow fever and viral hemorrhagic fevers
    • SARS added in April, 2003
has the cdc used its quarantine power
Has the CDC Used its Quarantine Power?
  • Last case was a 1963 smallpox case
  • In 2001, CDC temporarily detained an incoming plane in Seattle to interview passengers to determine if a reported case of smallpox was a hoax – it was
  • Did not compel the isolation or quarantine of anyone for SARS in 2003 outbreak – but created a plan
  • CDC routinely monitors passengers arriving into the US for the presence of communicable diseases
  • CDC relies on state and local health authorities for the primary use of isolation and quarantine powers.
  • Would use federal authority only if a person posed a threat to public health, and refused to cooperate with a voluntary request.
source of power for area quarantine and isolation in texas
Source of Power for Area Quarantine and Isolation in Texas
  • Texas Health Code § 81.082 – 81.089
  • Heading of Communicable Disease Control Measures, which include:
    • Immunization, detention, restriction, disinfection, decontamination, isolation, quarantine, dis-infestation, chemoprophylaxis, preventive therapy, prevention and education
language of control measures
Language of “Control Measures”
  • “If the department or a health authority has reasonable cause to believe that an individual is ill with, has been exposed to, or is the carrier of a communicable disease, the …authority… may order the individual…to implement control measures (e.g. isolation and quarantine) that are reasonable and necessary to prevent the introduction, transmission and spread of disease in this state”

§ 81.083 (b)

communicable disease versus bio terrorist attack
Communicable Disease versus Bio-terrorist Attack
  • Under previous law, commissioner and/or health authority has ability to quarantine an area in the event of an outbreak of communicable disease.
  • Such law did not authorize quarantine in the event of a bio-terrorist attack.
  • New law, HB 627 (enacted 5/21/2003) gave quarantine authority in the event of a bio-terrorist attack
procedures for isolation and quarantine
Procedures for Isolation and Quarantine
  • Voluntary Isolation
  • Emergency Detention Order
  • Petition to Court for Ordered Quarantine
voluntary isolation
Voluntary Isolation
  • Individual agrees to stay home
  • Health Department checks periodically
  • Health Department and emergency management partners attend to health and other needs
involuntary isolation
Involuntary Isolation
  • Health Officer may order immediate involuntary detention:
    • Must have made reasonable efforts which have been documented to obtain voluntary compliance, or
    • Must have determined that seeking voluntary compliance would create a risk of serious harm
involuntary detention
Involuntary Detention
  • Must have reason to believe that person(s) is or is suspected to be, infected with, exposed to or contaminated with communicable disease or chemical, biological or radiological agent that could spread to others, and
  • Must have reason to believe that person(s) would pose a serious and imminent risk to the health and safety of others if not detained
involuntary detention94
Involuntary Detention
  • Emergency Detention Order must be issued (within 12 hours of detention).
  • Provide copy to person(s) detained
  • Detention pursuant to Emergency Detention Order cannot exceed (ten?) days
contents of emergency detention order
Contents of Emergency Detention Order
  • Identity of person(s) subject to isolation or quarantine
  • Premises subject to isolation or quarantine
  • Date and time at which isolation and quarantine commences
  • Suspected communicable disease or infectious agent
contents of emergency detention order96
Contents of Emergency Detention Order
  • Measures taken by health officer to seek voluntary compliance, or basis on which health officer determined that seeking voluntary compliance would create risk of serious harm
  • Medical basis on which isolation and quarantine is justified
  • Notice of right to petition Court for release from isolation, a right to counsel (at government expense, if cannot afford counsel).
enforcement of emergency detention order
Enforcement of Emergency Detention Order
  • Texas law [Health and Safety Code §81.085 (h)] requires that the public comply with orders of boards of health and local health officers/authorities made for prevention, suppression, and control of dangerous contagious and infectious diseases. Violation is a felony of the third degree, or a Class B misdemeanor.
enforcement of emergency detention orders
Enforcement of Emergency Detention Orders
  • Police officers, sheriffs, constables and all other officers and employees of any political subdivisions within the health department jurisdiction should be available to enforce orders given to effectuate isolation and quarantine. Check local procedures.
  • Persons may petition the court for release from detention ordered by health officer.
court ordered detention
Court Ordered Detention
  • Alternative to health officer ordering involuntary detention
  • Ex-parte petition to court must contain much of the same information as the Emergency Detention Order
  • Detention Order cannot exceed (10?) days
  • Advantage: Court order, extra protection against due process challenge
  • Disadvantage: Additional step in process
other considerations
Other Considerations
  • Petition to the Court for continued detention
    • Seek order for continued involuntary detention
    • Hearing to be held within 72 hours (excluding Saturday, Sunday, holidays)
    • Prior to expiration of court order – continued involuntary detention
      • For period of up to 30 days
contents of petition for continued detention
Contents of Petition for Continued Detention
  • Much of the same information as in Emergency Detention Order
  • Declaration of health officer attesting to facts asserted in petition
  • Statement of compliance with conditions and principles for isolation and quarantine
  • Optional pleadings:
    • Motion to seal records (HIPAA)
    • Motion for court-appointed counsel
special considerations
Special Considerations
  • Coordinate with public defender regarding
    • Logistical problems: court hearings with potentially contagious individuals
    • Telephonic hearings
    • Video conferencing
    • Hearings at detention site
further conditions and principles for isolation and quarantine
Further Conditions and Principles for Isolation and Quarantine
  • Least restrictive means
  • Isolated persons confined separately from quarantined persons
  • Health status monitored regularly
  • Subsequently infected quarantined individuals to be transferred to isolation
  • Isolated/quarantined persons to be released as soon as possible
conditions and principles for isolation and quarantine
Conditions and Principles for Isolation and Quarantine
  • Persons needs must be addressed to greatest extent possible
  • Safe and hygienic premises
  • Cultural and religious beliefs should be considered
  • Shall not abridge the right of persons to rely exclusively on spiritual means alone through prayer to treat their communicable disease
  • Persons right to be isolated or quarantined in private place of his/her choice should be honored, provided it is approved by health officer
isolation or quarantine premises
Isolation or Quarantine Premises
  • Entry restricted into isolation or quarantine premises, as determined by health officer
  • All persons allowed entry into premises must be provided with infection control training and/or wear protective clothing, and/or be vaccinated
  • Persons allowed entry must follow rules established by health authority of orders of health officers.
  • Prisons and jails not designed for disease-related isolation and quarantine – last resort only