Administrative and Public Health Law
An Introduction for Health Care Administrators
Presented Spring 2003University of New Orleans
First Things 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 nonintercourse between New York and Philadelphia.
Communicable Disease in the Colonies Mostly poorly drained coastal areas
Malaria, Yellow Fever Smallpox
Terrible epidemics Nearly wiped out the Constitutional
Convention Quarantines, areas of non-intercourse Colonial governments did public health
Constitutional Provisions
Articles of Confederation Left all powers to the states Did not work during the War
Constitution Divided powers between the state
and federal government Reserved the police power to the
states
Police Power
Police departments came later Power to protect the public health
and safety Communicable disease control Sanitation Nuisance Drinking water
Federal Powers
Direct constitutional powers Interstate commerce Foreign Trade War Civil Rights (13, 14, 15th amendments) Income Tax
Most regulation is Commerce Clause
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 Can the Feds require smallpox
vaccinations? Invasion Clause?
Limits of the Police Power Very broad Protect public health and safety Must be prospective
Public health regulations are about preventing future harm
Must be civil, not criminal The reason for the action, and not the
results, determine whether it is criminal Confinement in jail Megan's laws and confinement of sexual
predators
Constitutional Criminal Rights Right to remain silent Confront accusers and present witnesses Right to counsel Trial by jury Certain other protections attendant on
their criminal prosecution. These rights make criminal prosecutions
slow and expensive Specific laws limit the ability of law
enforcement to respond to new problems.
Administrative Law
Public health law, and most health law, is carried out by government agencies State Department of Health HHS HCFA, now CMS
More generally, government works through agencies
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
Historical Background First 100 years - state law
Through the late 1800s, the states did almost all regulation
They were very intrusive Limited some by the US Supreme Court
in the late 1800s Interference with interstate commerce Due process and equal protection Chinese Laundry cases
Federal Agencies Interstate Commerce Commission
Antitrust Railroads
New Deal Modern agencies Supreme Court fights - switch in time, saves
nine Still very limited
Post-WW II - never really demobilized
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
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
Agency Functions
Rulemaking Agencies make rules to particularize
statutes and for public guidance The public is allowed to participate in
rulemaking Adjudications
Agencies take enforcement actions through agency courts
Judicial Review
Agencies cannot act beyond the constitution or the enabling legislation
Agencies must follow appropriate procedures APAs Agency rules
Deference to Agency Action
Courts defer to agency decisionmaking on area of agency expertise Fact finding Rulemaking Cannot be "arbitrary or capricious"
Courts do not defer to agency interpretations of the law
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.
Core Public Health Activities
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
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
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
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?