APHA 2005 The Administrative Law Basis for Public Health Practice

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APHA 2005The Administrative Law Basis for
Public Health Practice

• Edward P. Richards
• Director, Program in Law, Science, and Public
  Health
• Louisiana State University Law Center
• richards_at_lsu.edu
• Slides and other info http//biotech.law.lsu.edu/
  cphl/Talks.htm

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What is Administrative Law?

• Administrative law is the law of government.
• Public health includes many personal behaviors
• Public health law deals with the powers of the
  government to protect the public health
• Based on expert analysis and decisionmaking, not
  jury decisions
• Understanding administrative law principles is
  critical to effective public health practice

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Objectives

• Understand how the history of public health law
  shapes current practice
• Understand how administrative law principles
  govern public health practice
• Understand that the government's public health
  powers are very broad, and have not been limited
  by modern constitutional law decisions
• Understand that government power must be used
  wisely or the public will not support public
  health initiatives

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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

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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

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Police Power

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

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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))

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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 Revolutionary War
• Remember the stories about Washington's troops
  not having shoes?

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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

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The Jurisprudential Consequences of
Pre-Constitutional Disease Control Efforts

• The founders saw communicable diseases as the
  same type of threat as the threat of invasion by
  foreign troops
• The drafters of the Constitution clearly intended
  to give broad powers to the states to protect the
  public health
• The United States Supreme Court has not limited
  these powers
• Few state courts have limited public health power
• Political support has declined as successful
  public health has reduced the fear of
  communicable diseases

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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

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Public Health as National Security Law

• Can the Feds require smallpox vaccinations?
• Invasion Clause?
• Using national security powers?
• Do national security powers depend on an external
  threat or an insurrection?
• Can they be used for disasters and diseases?
• The founders saw this as the role of the states

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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

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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

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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.

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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

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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

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What do Public Health Agencies Do?

• Core Public Health Functions

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Public Health BasicsControlling Communicable
Diseases

• Most legally contentious because of the direct
  impact on individuals
• What are the public health actions the law needs
  to support?

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Surveillance

• The beginning point for all disease control
• What is the incidence and prevalence of the
  disease?
• Are these changing?
• Is there a new disease?
• In the community?
• Anywhere in the world

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Case Investigation and Notification

• Who is infected?
• Is there an index case?
• Who is at risk of the disease?
• What can contacts do to reduce the risk of
  contracting or spreading the disease?

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Outbreaks

• What is an outbreak?
• Controlled diseases are increasing beyond
  expectations
• New diseases such as West Nile
• Diseases that should not be in the community
• What can be done to manage the outbreak?

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Emergencies

• Most outbreaks are not emergencies
• What makes an emergency?
• Public fear, often driven by the media
• Real threats to the public - West Nile
• Smallpox
• How do public health powers change in an
  emergency?

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Public Health Legal Tools
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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

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What about Privacy?

• No right of privacy when the individual's
  condition threatens the public health
• No right to veto the report
• No duty to inform the patient that you will make
  the report
• Strong policy reasons to not inform the patient
• Public health reporting is exempt from HIPAA, but
  many health care providers do not understand this

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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

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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

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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?

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Vital Statistics

• Birth and death records
• Disease registries

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Agency Legal Functions

• What are the legal tools to carry out these
  functions?

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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

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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

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Permits and Licenses

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

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Inspections

• Legally classified as an adjudication
• License and permit holders
• Consent to inspections as a condition of the
  license or permit
• Other individuals as businesses
• What the expectations of privacy?
• Is it a valid administrative search?

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Administrative Searches

• Administrative warrants
• No probable cause
• Area warrants
• Limits to administrative warrants
• Cannot be used to undermine criminal due process

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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

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Protection for Public Health Decision-Making

• Sovereign Immunity
• The government cannot be sued without its
  permission
• The federal government has a limited right to
  allow individuals to sue states
• Discretionary Authority
• The right to make wrong decisions without
  liability
• Suits against individuals are shifted to the
  state
• Individuals can be sued if they act outside their
  job

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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

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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

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Limits on Public Health Powers
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Prevention, Not Punishment

• Must be prospective
• Public health regulations are about preventing
  future harm
• Cannot be used to imprison to punish
• Must be civil, not criminal
• The reason for the action, and not the results,
  determine whether it is criminal
• Quarantine in a jail
• Megan's laws and confinement of sexual predators
• Charleston Case - testing pregnant women for drugs

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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

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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
  after the quarantine?
• No - the Constitution guarantees habeas corpus
• Right to contest your confinement
• Statutes can limit judicial review
• Requiring administrative appeal before judicial
  review

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Breakout

• Can You Really Make a Quarantine Work?

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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

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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

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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

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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."

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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

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Freedom of Information Acts

• State and federal laws allowing access to public
  information
• Anyone may request information
• You do not need to say why you want it
• The government cannot withhold it just because
  you are the front for terrorists
• There exemptions for national security, law
  enforcement, individual privacy, trade secrets,
  and internal government operations

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Can the Health Department Keep Information
Private?

• Who can get public health investigation info?
• Restaurant inspections?
• STI records?
• The state controls access to public information
• Legal privilege
• Freedom of Information Act exceptions
• Look to your state law
• The feds may preempt state protections

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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

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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

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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?

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Breakout

• HIV and the Failure of Public Health

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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

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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

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Transmissibility (rough)

• Contact efficiency X number of contacts__________
  _______________________
• percent of immune/infected persons

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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

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What did this mean for HIV?

• HIV came into the US in the late 1970s
• Hard to transmit sexually
• More contracts, 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

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Bathhouses today

• Some states closed them in the mid 1980s
• Many went broke because their customers died
• 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?

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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

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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