Public Health Law

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Public Health Law

• BIO-TERRORISM
• Robert Kaman, JD, PhD

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KILL ONE,
FRIGHTEN 10,000
-- Tom Clancy The Sum of All Fears
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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

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Isolated case, or symptomatic of a failed system?

• Fifty years of decreasing commitment to an
  effective public health system.
• Liberals viewed public protection as an attack on
  civil liberty
• Conservatives have opposed government funding of
  medical services, viewing it as a personal choice
• Different reasons, but the same effect
• An absence of political support for public health
  programs and institutions.

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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.

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Example Public Health Response to AIDS

• Minimal intrusion on personal autonomy and
  privacy
• Government viewed as a threat rather than a
  solution
• Civil-libertarian response to AIDS is reflective
  of the individualism and the cult of the
  entrepreneur that has predominated in American
  society for the past twenty years

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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

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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.
  

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Federal Programs
? Domestic Preparedness - Interagency effort
directed by Congress - AKA Nunn-Lugar
Domenici City Training ? Consequence Management
Program - Department of Defense efforts
directed by SECDEF - Improve Department
of Defense support for response to WMD
attacks - Integrate National Guard and
Reserve components
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STATE PROGRAMSThe Model State Emergency Health
Powers Act (MSEHPA)

• Principal Author Lawrence O. Gostin, JD
• Professor and Director
• Center for Law and the Publics Health
• Georgetown University Law Center, Johns Hopkins
  University and the CDC
• Washington, DC

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MSEHPA

• 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

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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 or serious disabilities in the
  population.

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MSEHPA

• Facilitates systematic planning for a public
  health emergency
• Coordination of services
• Procurement of vaccines and pharmaceuticals
• Housing, feeding and caring for affected
  populations appropriate to physical, cultural
  and social needs
• Proper vaccination and treatment of individuals
• Authority for surveillance of health threats
• Continuing power to follow a developing public
  health emergency.

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MSEHPA

• Requires prompt reporting by health care
  providers, pharmacists, veterinarians, and
  laboratories
• Provides for exchange of relevant data among lead
  agencies such as public health, emergency
  management and public safety
• Comprehensive power to manage property and to
  protect persons, and to safeguard the publics
  health and security

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MSEHPA

• Authority to close, decontaminate or procure
  facilities and materials to respond to a public
  health emergency
• Safely dispose of infectious waste
• Obtain and deploy health care supplies
• Physically examine or test individuals as
  necessary for diagnosis or treatment
• Vaccinate or quarantine individuals to prevent
  transmission of contagious disease
• Waive licensing requirements to facilitate
  treatment

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MSEHPA

• Provides for a set of post-declaration powers and
  duties to ensure appropriate public information
  and communication.

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MSEHPA

• 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.

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MSEHPA

• Declaration of a Public Health Emergency
• Governor declares
• Content
• The nature of the emergency
• The political subdivisions or geographic areas
  involved
• The conditions that have caused the emergency
• The duration of the emergency, if less than 30
  days
• The primary public health authority responding

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MSEHPA

• Effect of the Declaration activation of the plan
• Emergency powers
• Coordination of resources
• Personnel identification
• Enforcement
• Public health authority may request from public
  safety and militia

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MSEHPA

• Measures to Detect and Track Public Health
  Emergencies
• Reporting
• Illness or health condition
• Pharmacists
• Manner of reporting
• Animal diseases
• Laboratories
• Enforcement

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MSEHPA

• Tracking
• Identification of individuals
• Interviewing individuals
• Examination of facilities or materials
• Enforcement
• Information Sharing
• Public safety authority must notify the public
  health authority, and vice versa upon evidence of
  a possible public health emergency
• Information restricted to the minimum required

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MSEHPA

• Special Powers
• Management of Property
• Facilities
• Materials
• Access to and control of facilities and property
• Use of materials and facilities
• Use of health care facilities
• Control of materials
• Control of roads and public areas

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MSEHPA

• Safe Disposal of Infectious Waste
• Adopt measures
• Control facilities
• Use of facilities
• Identification of waste
• Safe Disposal of Human Remains
• Adopt measures
• Possession
• Disposal
• Control and use of facilities
• Labeling
• Identification

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MSEHPA

• Control of Health Care Supplies
• Procurement
• Rationing
• Priority
• Distribution
• Compensation
• Destruction of property

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MSEHPA

• Special Powers Protection of Persons
• Medical examination and testing
• Vaccination and treatment
• Isolation and quarantine
• Authorization
• Conditions and principles
• Least restrictive
• Isolated persons separated from quarantined
  persons
• Health status monitored
• Immediate release upon elimination of risk
• Cooperation
• Entry into isolation or quarantine premises
• Authorized entry only
• Extensive further considerations

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MSEHPA

• Collection of Samples for Testing
• Marking
• Contamination
• Chain of custody
• Criminal investigation
• Access to and Disclosure of Protected Health
  Information

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MSEHPA

• Licensing and Appointment of Health Personnel
• Health care providers must serve as a condition
  of state licensing
• Health care providers from other jurisdictions
  licensing waived
• Appointment of medical examiner or coroner

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MSEHPA

• Public Information Regarding Public Health
  Emergency
• Dissemination of Information
• Means of dissemination
• Languages
• Accessibility to persons with disabilities
• Access to mental health support personnel

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MSEHPA

• Miscellaneous
• Rules and regulations by public health authority
• Financing and expenses
• Transfer of funds
• Repayment Conditions
• Expenses authorized
• Liability and immunity
• Compensation

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MSEHPA

• Termination of Declaration
• Executive Order
• Automatic Termination
• State Legislature
• Content of termination order

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MSEHPA

• What will Texas do? Senate Bill 399 was
  introduced by Letitia van Puttin in the Spring of
  2003, 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

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Local Actions

• Tarrant County Public Health Department created
  three 3-member Health Response Teams (HRTs) 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

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RECOMMENDATIONS

• Be aware
• Do not over-react
• Listen to authorities
• Take common sense precautions
• - radio and batteries
• - 3 - 5 day supply of food and water
• - full tank of gas
• - location of shelters
• Participate in planning
• Continue usual behavior
• Follow the upcoming legislature look for the
• reintroduction of a bill similar to SB 399