What is a “Public Health Emergency”?

On October 23, 2001, in the throes of the anthrax poisonings on the East Coast of the United States, Lawrence O. (Larry) Gostin launched his highly controversial “Model State Emergency Health Powers Act” (hence: “model act”). Gostin is a Washington, DC, lawyer; former (and current?) Clinton Health Plan comrade; proud owner of a 32-page resume published online; and member of a new group founded in 2000 called “The Center for Law and Public Health at Georgetown University and Johns Hopkins University”. Gostin, under the aegis of the latter group (which he helped found), wrote up the model act, supposedly at the bequest of someone (who?) with the Centers for Disease Control (CDC). (1-5)

It is not real clear why the model act came about. Lawyers at the Law Center of Louisiana State University ventured that the principal impetus for the model was “a belief by the drafters that comprehensive reform of public health laws is needed because laws that have been in force and effect for the past eighty to one hundred years in most states are most likely unconstitutional and could not be enforced today.” (Huh?) (5a)

George Annas. Source: http://www.aslme.org/media/list_speaker .php?speech_id=13&speech_ram=/real_ audio/hlt00_audio/annas_060900.rpm; accessed November 19, 2006.

Public health law expert George Annas said in 2002 that he was “not at all clear” what problem the model act is intended to solve. He continued: “Public health officials should be put in charge of a smallpox epidemic to limit the public's exposure to the agent, provide guidance in identifying and dealing with the disease and provide laboratory facilities where exposure can be evaluated and diagnoses definitively established. However, the tasks of identifying affected persons, reporting them, treating them, and taking preventive actions should be performed by physicians, nurses, EMS personnel, and hospitals. He pointed out that ‘there is no evidence from either 9/11 or the anthrax attacks that physicians, nurses, or members of the public are reluctant to cooperate or take vaccines or drugs recommended by public health or medical personnel. In fact, the reverse has been shown to be true.’” (11a)

Gostin’s model act uses a relatively new term in American discourse--“public health emergency”—and champions the notion that state governments need to centralize powers relating to the management of most important aspects of “public health emergencies”.

Brief History of the Model Act

Gostin produced the model act draft in just 3-4 weeks apparently without consultation from any of the groups that he listed on the title page as being “in collaboration with”, including the National Governors Association, the National Conference of State Legislatures, the National Association of Attorneys General, the Association of State and Territorial Health Officials, and the National Association of City and County Health Officials. (6) Oops, Larry! He then said that the claim of collaboration was an error, and a later version of the model act, dated December 21, 2001, noted that the model act was a “draft for discussion…to assist” those organizations! (7)

The model act subsequently came under the aegis of the “Turning Point National Collaborative on Public Health Statute Modernization”—whatever that is—to revise state health laws. (8) Surprisingly, according to the website of this organization, members, allegedly including representatives of (hold your breath here) the Association of State and Territorial Health Officials, National Association of City and County Health Officials, National Association of Local Boards of Health, American Public Health Association, National Governor’s Association, National Conference of State Legislatures, Centers for Disease Control and Prevention, Health Resources and Services Administration, Alaska, Colorado, Nebraska, Oregon, and Wisconsin (!), enjoy standing in the snow together, arm in arm. (8) This “Turning Point” organization in 2004 even received an award from itself. (9)

Turning Point members in the snow. Source: http://www.turningpointprogram.org/Pages/ph_stat_mod.html; accessed November 19, 2006.

The model act, as of July 2006, has been adopted in whole or in part by 37 states and the District of Columbia (which has sent Gostin, et al, into a rapturous state), but not without concerns from keen observers. Some observers have suggested that “the model act represents an immediate, if not necessarily prudent, response to the [anthrax] attacks.” (10) The model act is thick with definitions, including one for “public health emergency”.

Definition of “Public Health Emergency”

The definition of a “public health emergency” proposed by the model act in Article I (there are eight Articles) follows (again, hold your breath here):

“A public health emergency” is an “occurrence or imminent threat of an illness or health condition that is believed to be caused by bioterrorism, the appearance of a novel of previously controlled or eradicated infectious agent or biological toxin, a natural disaster, a chemical attack or accidental release, or a nuclear attack or accident AND poses a high probability of a large number of deaths in the affected population, a large number of serious or long-term disabilities in the affected population, or widespread exposure to an infectious or toxic agent that posses a significant risk of substantial future harm to a large number of people in the affected population.” (11) Thus, using this definition, a “public health emergency” is “a natural disaster” that poses “a high probability of a large number of deaths” or harm to a population.

Special State Powers over Private Resources–Article V

Article V of the model act states that the governor and his or her appointed state public health official have a set of powers over the public during a disaster. For example, in the state of Illinois in 2006, Governor Rod Blagojevich and director of public health, Eric E. Whitaker, could declare a “state of public health emergency.” (11a) This declaration gives them broad powers to take over all health care facilities in the state, order physicians to act in certain ways, and order citizens to submit to examinations and treatment, with those who refuse to do so subject to quarantine or criminal punishment.” (11a)

Examples of these special state powers, as articulated in Article V of the model act, are:

1. Emergency powers with respect to facilities and materials: The act, once adopted by a state legislature, would authorize the public health agency to evacuate, close, or decontaminate any facility if it has a reasonable belief that the facility poses a threat to the public health. Materials that pose a threat to the public health may be destroyed.

2. Use of facilities: The model act would allow the public health agency by condemnation, lease, contract, or other method the facilities it needs and supplies including, but not limited to, real property, fuels, food, communications devices, and clothing. The public health agency could also require health care facilities to provide necessary services in the event of a public health. Further, the public health agency would be empowered to control other materials and their distribution such as food, clothing, fuel, and other commodities and arrange for their distribution by rationing or other methods. Finally, the public health agency would have control over the use of pubic highways to ensure orderly movement of evacuees and to control entry into areas stricken with illness or other public health threat.

3. Control over and disposal of infectious wastes and human remains: The model act gives the public health agency the authority and power to decide about these.

4. Control over health care supplies: The model act gives the public health agency power and authority over health care supplies and pharmaceuticals needed to respond to the emergency.

Special State Powers over Quarantine and Vaccination–Article VI

Here the model act addresses treatment of persons, including vaccination and quarantine of infected persons. Under its provisions, the public health agency may isolate, quarantine, vaccinate, and treat persons believed to be a public health threat during a “public health emergency”. The bill also provides for judicial review of any action that would result in mandatory isolation, quarantine, or treatment.

Critics of the Model Act

Some heads remained cool during the frantic period following the launch of the “Model State Emergency Health Powers Act” amidst the sorting out of the anthrax poisonings. Some heads, such as the Mississippi State Legislature, are just now weighing in on the pros and cons of Gostin’s model act.

Groups critical of the original October 2001 draft have been as varied as the American Civil Liberties Union (ACLU) and the American Legislative Exchange Council (ALEC), groups organizations that traditionally have been at opposite ends of the political continuum. What do they see wrong with the model act?

Definition of “Public Health Emergency” is Overly Broad

Critics say that the definition (see above) is overly broad. Both groups have asserted that this broad definition could embrace something as inconsequential as an outbreak of a flu strain that, while discomforting, might not pose the serious risk to the population at large and could trigger the imposition of forced immunizations or treatment on persons not desiring such. (12)

Threats to Privacy

Critics have raised concerns regarding the broad Article VI powers that would require mandatory treatment and possible quarantine of persons who are infected with an illness that gives rise to the public health emergency. These critics note that “these powers provide little in the way of exceptions to the exercise of state power and because of the broad definition of what constitutes an emergency, any number of illnesses (e.g., chicken pox, AIDS) could be the triggers to a round-up of persons into quarantine camps.” (13)

Furthermore, the ACLU principally has asserted that some of the provisions in Article III dealing with the reporting of information by pharmacists to public health authorities could result in the distribution of persons’ confidential health care information. (13)

Observer George Annas (14) in the “New England Journal of Medicine” wrote that “the model act seems more appropriate to the last century when we did not recognize that persons may have the right to reject examination of treatment. The same commentator also suggests that most persons who are infected would be desirous of treatment and would be likely to be more interested in obtaining any assistance available from public health authorities than in holding out against treatment. In cases in which this does occur, quarantine might be a useful public health tool that would be best exercised by the federal [not the state] government.” (14)

Confiscating and Rationing Private Resources

ALEC raises the concern that the model act gives broad authority to confiscate and ration private property. Many of the provisions in the model act authorize a pubic health agency to make ‘quick takes’ of property, thereby taking immediate possession prior to making any determination of just compensation for property.” (13)

Are the Criticisms of the “Model Act” Valid? What the Mississippi State Legislature Found

The Joint Committee on Performance Evaluation and Expenditure Review (PEER), an organ created by the Mississippi Legislature by statute in 1973, prepared a report in response to legislative concerns (published October 10, 2006) that had arisen over the state’s authority to respond to possible avian flu pandemics or acts of bioterrorism. (15) The PEER reviewed Mississippi law regarding emergency responses to these occurrences, using the model act as a criterion for evaluating the adequacy of Mississippi’s emergency response laws. PEER found minor deficiencies, as follows.

The PEER found that “Mississippi laws are generally sufficient to respond to such emergencies”, however, “in some areas incremental change would enable a more effective response to emergencies, such as those that could be posed by a pandemic or act of bioterrorism.

“Respecting pandemics, state law at present does not include such in the definition of a natural emergency, thereby creating some concerns that the Governor might not have the legal power to respond to the fullest extent allowable under current emergency management laws. Another area of weakness is that present law does not require veterinarians and pharmacists to provide information to the State Board of Health on certain diseases.

“Further weaknesses include no provisions dealing with the licensure of out-of-state medical professionals who assist in the event of emergencies, no state control over the management or disposal of human remains, and no specific authority over materials and property that might become contaminated.

“PEER recommends changes in legislation to correct these minor deficiencies.” (15)

Comments

The “Model State Emergency Health Powers Act” seeks to centralize control in the state governor’s office most important aspects of the management of a “public health emergency”, which the act broadly defines.

The model act exemplifies the bureaucratic approach to provision of public services, as described elsewhere. (16) As noted there, bureaucratic approaches to provision of public services are based on and protect the deeply-held American value of equality of access to public services. When there is time, bureaucracies are tolerated by most Americans and are useful in protecting the deeply-held value of equality. But bureaucracies are slow and, furthermore, they are designed to be slow. (17)

Bureaucracies are inefficient and insufficient in disaster situations, when bodies are mounting up or hospitals or clinics need resources to provide needed services to the public.

Marketplace (entrepreneurial) approaches AND mutualistic approaches to provision of public services can and DO fill in the gaps to meet people’s needs, particularly during the first 72 hours of a disaster, as additional resources make their way down bureaucratic channels.

Centralizing control in the state during the impact phase of a crisis does not solve the problem of getting services to the public that needs them at the time those services will do the most good.

Centralization looks good on paper but does not work well in the realities of severe social stress situations, including bioterrorism and pandemics.

As a former first responder, I always tried to locate the bureaucrats who engineered the impossible systems I was asked to use to obtain resources during disasters, but I could never find one. They were at home hiding and probably cowering. Shame on them. The public has always taken care of itself during the early stages of disasters. The proponents of the model act need to ask how or whether it enhances provision of services to the public that needs them when they need them during a disaster, or whether it is simply a control tool that gives social engineers and state officials a feeling of power over the citizenry.

Sources:

1. “Model State Public Health Laws” at: http://www.publichealthlaw.net/Resources/Modellaws.htm; accessed November 19, 2006.

2. For more on Larry Gostin, see: http://www.publichealthlaw.net/About/AboutPDFs/GostinCV.pdf, his online curriculum vita, and http://en.wikipedia.org/wiki/Lawrence_O._Gostin; accessed November 19, 2006.

3. The Center for Law and Public Health at both Georgetown and Johns Hopkins Universities is a private entity that sees itself as a “primary, international, national, state, and local resource on public health law, ethics, and policy for public health practitioners.” It says that it is funded by one or more grants it has sought from the Health Resources and Services Administration (also a component of the DHSS), the Robert Wood Johnson Foundation, and the Alfred P. Sloan Foundation. Its goal is to promote the use of law to shape the public’s health.” Source: “The Center for Law and the Public’s Health at Georgetown and Johns Hopkins Universities” at: http://www.publichealthlaw.net/; accessed November 19, 2006.

4. The current executive director of “The Center” is lawyer James G. Hodge, Jr., who states that he, along with a few others, drafted the “Model State Emergency Health Powers Act” in 2001. He earned his law degree in 1993 from Salmon Chase College of Law in Highland Heights, Kentucky. Source: “James Hodge” at: http://faculty.jhsph.edu/?F=James&L=Hodge; accessed November 19, 2006.

5. The identities and biographies of other directors of “The Center” are available at: http://www.publichealthlaw.net/About/Facstaff.htm; accessed November 19, 2006.

5a. “A legal analysis of emergency powers given in Mississippi law regarding pandemics and bioterrorism”, Joint Legislative Committee on Performance Evaluation and Expenditure Review, Report to the Mississippi Legislature. October 2006, p. 12. Available online at: http://www.peer.state.ms.us/reports/rpt491.pdf; accessed November 19, 2006.

6. “Model State Emergency Health Powers Act” at: http://en.wikipedia.org/wiki/Model_State_Emergency_Health_Powers_Act; accessed November 19, 2006.

7. For revised title page, see: http://www.publichealthlaw.net/MSEHPA/MSEHPA2.pdf; accessed November 19, 2006.

8. Webpage of “Turning Point” at: http://www.turningpointprogram.org/Pages/ph_stat_mod.html; accessed November 19, 2006.

9. For award, see: http://www.publichealthlaw.net/Resources/Modellaws.htm#TP; accessed November 19, 2006.

10. “A legal analysis of emergency powers given in Mississippi law regarding pandemics and bioterrorism”, Joint Legislative Committee on Performance Evaluation and Expenditure Review, Report to the Mississippi Legislature. October 2006, p. 9. Available online at: http://www.peer.state.ms.us/reports/rpt491.pdf; accessed November 19, 2006.

11. Article I of the model act.

11a. SEMP Biot #2: Bioterrorism, Public Health and Civil Liberties” (10May2002). Available online at: http://www.semp.us/biots/biot02.html; accessed November 19, 2006.

12. “A legal analysis of emergency powers given in Mississippi law regarding pandemics and bioterrorism”, Joint Legislative Committee on Performance Evaluation and Expenditure Review, Report to the Mississippi Legislature. October 2006, p. 7. Available online at: http://www.peer.state.ms.us/reports/rpt491.pdf; accessed November 19, 2006.

13. Ibid, p. 11.

14. George J. Annas: “Bioterrorism, Public Health, and Civil Liberties” in The New England Journal of Medicine, April 25, 2002, vol. 346, no. 17, pp. 1337-1341. See also: George J. Annas: “Bioterrorism and Public Health Law” (letter). In the Journal of the American Medical Association, December 4, 2002, vol. 288, no. 12, pp. 2685-6. See also: George J. Annas: “Terrorism and Human Rights” in “In the Wake of Terror: Medicine and Morality in a Time of Crisis.” JD Moreno (ed). Basic Bioethics Series, Cambridge, Mass, the MIT Press, 2003.

15. “A legal analysis of emergency powers given in Mississippi law regarding pandemics and bioterrorism”, Joint Legislative Committee on Performance Evaluation and Expenditure Review, Report to the Mississippi Legislature. October 2006, p. v. Available online at: http://www.peer.state.ms.us/reports/rpt491.pdf; accessed November 19, 2006.

16. See SEMP Biot #411: “Government Bureaucracy and Two Newer Cultural Approaches to Provider Service Delivery to the Citizenry during Disasters” (November 7, 2006), available at: http://www.semp.us/biots/biot_411.php; accessed November 19, 2006.

17. SEMP Biot #145: “What Is Bureaucracy?” (December 3, 2004). Available online at: http://www.semp.us/biots/biot_145.html; accessed November 19, 2006.