A Pox on Outdated Public Health Laws

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While trying to help citizens stay healthy, public health officials sometimes confront a surprising foe: their own state laws.

On issues from quarantine to vaccination, the various statutes that limit or require government action can be as much as a century out of date. While a chorus of experts has long touted legal modernization, until recently, they met with little success.

During the past few years, though, one promising reform effort, led by the Robert Wood Johnson Foundation, has helped states make progress. An upcoming paper in the American Journal of Public Health examines why some states have seen forward movement, while others merely maintain the status quo.

Few in the field dispute that change is needed: A range of professional and academic organizations, from the National Association of Attorneys General to the Institute of Medicine, part of the National Academy of Sciences, back broad reform. Nevertheless, until the past few years, hardly any state public health laws took into account current health threats or advances in biological knowledge and ethics.

Though the flaws vary from state to state, some broad themes emerge: Most statutes were built up in layers over time in response to specific diseases, such as smallpox or tuberculosis. When new infectious diseases like West Nile virus or SARS appear, officials are left legally unprepared. The laws also seldom reflect recent precedents in constitutional law, neglecting accepted standards that guard against discrimination or protect privacy. Several states give health departments nearly unlimited power to quarantine citizens in the face of a disease, others very little.

“The issue here is that people in the public health field know what their agencies need to do. Then the lawyers say: ‘Your laws don’t authorize you to do this.’ So you can’t do what you need to do,” said Benjamin Mason Meier, a lawyer and Columbia University public health graduate student and co-author of the paper.

In some cases, regulation and executive orders may provide sufficient remedies, but, often, the only solution is to change the underlying legislation. Few states have done so.

During the late 1990s, the Robert Wood Johnson Foundation launched a broad initiative, Turning Point, aimed at modernizing public health. Beginning in 2000, the foundation convened policymakers, public health officials, academics, lawyers and other experts to address the legal piece of the project.

The group soon agreed that the best way to help states confront the problem was to create a model version of a modern public health law, with provisions enabling health departments to deliver up-to-date public health services. They published the Turning Point Model State Public Health Act in late 2003. (To view the 72-page PDF of the model law, click here.)

The act provided consensus legal best practices on issues ranging from epidemiological investigations of outbreaks to partner notification. By 2007, legislators in 33 states had introduced 133 bills or resolutions incorporating the model law. However, just 48 of such statutes passed, many of them using only some language or provisions from the Turning Point proposal.

Meier, James Hodge of Johns Hopkins University and Kristine Gebbie of Hunter College have spent years trying to understand why some states virtually rewrote their entire public health laws in response to Turning Point, but advocates in other states failed to pass any modernization bill at all.

In many states, officials helped marshal support using a relatively simple technique called a “gap analysis.” They laid out a list of provisions in their existing laws and compared them with the model version. That helped legislators and citizens understand exactly what was missing from current law, and what effects the disparities might have on government action.

Advocates in some states built grassroots partnerships over time to effectively push for reform, but in others, powerful legislators or governors championed bills through the legislative process. Some officials relied on the politics of fear. The threat of SARS, which struck several Western countries during 2002 and 2003, pushed the public health law reform issue onto many states’ legislative agendas. In Alaska, for example, reform backers successfully stoked worries of a government too hamstrung by old laws to handle a SARS outbreak or bioterror attack.

Despite such varied reform paths, proposals stalled in many states. In South Carolina, the Department of Health and Environmental Control’s chief counsel said the state “had never been confronted with a public health issue that couldn’t be dealt with (under) existing public health law.” No well-placed advocate emerged, and legislative initiatives died. In Nebraska, a similar situation led to public health advocates pursuing more limited regulatory reform.

In every state, advocates faced concerns over legislative backsliding — worries that once the laws were open to discussion, a rogue legislator might push provisions that would weaken public health authorities. Sometimes, this troubled even officials who might otherwise have supported changes to the law.

On imminent public health dangers, most legislatures seem interested. Post-9/11 bioterrorism fears led many states to pass a more limited Model State Emergency Health Powers Act created by another blue-ribbon panel in 2001. On non-emergency powers, though, legislators often don’t have strong opinions on what are often seen as sleepy issues.

“Pushing a bill through the legislature is not an easy task,” Meier said. “For many, state public health law doesn’t have the same priority as drugs, violence or terrorism.”

Meier and his co-authors did find several disparate ways that states have modernized their health laws or regulations relatively quickly, with an array of paths to reform. They’re now working on research into how these legal changes affect health department performance in a way that actually improves public health. Promising outcomes might persuade some skeptical legislators.

The longer they wait, though, the worse the situation may be for the officials who must deal with new diseases and threats.

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