APHA 2005 The Administrative Law Basis for Public Health Practice Edward P. Richards Director, Program in Law, Science, and Public Health Louisiana State University Law Center Slides and other info:

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

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

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

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

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

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 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, (1849))

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?

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

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

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

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

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

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

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.

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

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

What do Public Health Agencies Do? Core Public Health Functions

Public Health Basics: Controlling Communicable Diseases Most legally contentious because of the direct impact on individuals What are the public health actions the law needs to support?

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

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?

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?

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?

Public Health Legal Tools

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

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

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

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

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?

Vital Statistics Birth and death records Disease registries

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

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

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

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

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?

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

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

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

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

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

Limits on Public Health Powers

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

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

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

Breakout Can You Really Make a Quarantine Work?

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

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

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

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."

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

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

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

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

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

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?

Breakout HIV and the Failure of Public Health

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

Disease Epidemiology in Bathhouses Exposure patterns contacts a night contacts a year Everything is an STD As contact frequency goes up, overall transmission increases, even if the disease is not very contagious

Transmissibility (rough) Contact efficiency X number of contacts _________________________________ percent of immune/infected persons

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

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

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?

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

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