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STATUS OF THE STATE PUBLIC HEALTH LAW

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Status of the State Public Health Law

 

“The mission of public health is fulfilling society’s interest in assuring the conditions in which people can be healthy.”  

National Academy of Sciences, 1988

 

One of the most important goals of government is the preservation of the public health.  Public health law encompasses the prevention of injury and chronic illness, improvement of the environment, protection of the food and water supply, better housing, sanitation, hygiene, and the control of infectious disease.  Even though the role of the federal government has increased in matters of public health, the states remain the primary public health authority.  The inherent power of the state as a sovereign government preserves this authority. 

 

Under these state governments, health authorities at the local level, municipal and county, often have delegated authority to monitor, implement, and enforce these objectives.  Public health officials at the local level are often the first to identify and respond to health threats through county or ordinances and regulations.  

 

At the very least, public health law should ensure that public health agencies are fully capable of responding to current and coming health threats.  

Due to the limits to the legislative approach, many problems are addressed through improved leadership and training, improved infrastructure for surveillance, and innovative prevention strategies.

 

The law is only one factor that guides public officials, first responders, and the companies contracted to treat and dispose of health threats.  Public health law statutes are not standardized from state to state and it is difficult to deduct generalizations for a group statute for comparison and compliance.  

 

These statutes evolved independently, leading to significant variations in the structure and substance.  The process for detecting, controlling, and preventing communicable diseases varies between states .

 

The majority of communicable disease law in the United States has been passed in reaction to specific disease threats.  Communicable disease statutes focused on smallpox, yellow fever, and the plague in the 1700’s.  In the 1800’s, the communicable disease statutes focused primarily on combating cholera and tuberculosis.  

 

Epidemics of poliomyelitis, influenza, and venereal disease in the early to middle 1900’s forced the legislatures to react with disease-specific laws.  In the later 1900’s, legislatures passed HIV/AIDS-specific law that added another layer to the piecemeal public health law.  The scientific understanding of diseases was very different from today 100 years ago.  

 

The concept of communicable disease was established, but the technology to identify the most common infectious agents is relatively new.  Public health laws that have been passed down from generation to generation may lack the adoption of more technically advanced tools used for diagnosis, treatment, and epidemiological review of the spread of disease.  

 

Older statutes may fail to distinguish between methods of disease transmission such as casual contact, prolonged contact, or contact with blood or other bodily fluids.  For example, a South Dakota statute passed in the late nineteenth century last amended in 1977 made it a misdemeanor for a person infected with a communicable disease to “intentionally expose himself in any public place or thoroughfare.”  

 

We now know, through our updated understanding of disease transmission, that this statute is inappropriate for diseases that are transmitted through blood or other bodily fluids.  Modern developments in constitutional law may not reconcile with existing public health law.  

 

Evolving standards in disability discrimination were not even contemplated when some of these statutes were enacted.  For instance, federal disability law prohibits discrimination against individuals with infectious diseases.  

 

This conflict between the individual and the protection of the public health may require officials to adopt statutes based on “significant risk” when addressing persons with infectious diseases in employment, public services, and public accommodations.  Each individual state possesses the police power to produce laws that protect the health, safety, and welfare of its citizens.   

 

This power can be enforced provided that the states do not act in an unreasonable manner, but there isn’t a national standard that dictates the scope of the states police power in protecting the public health.  

 

Some states due address, through detailed statutes, an individual’s right to travel, privacy, and the right to associate freely when applying these restrictions due to the risk to public health.  Still, other states leave this type of power within the discretion of the public health officials. 

 

Ebola infection hit the continental United States in Fall of 2014.  Before his trip to the U.S., Thomas Eric Duncan’s temperature was screened 3 times and had a consistent reading of 97.3 degrees Fahrenheit (CNN.com).  Mr. Duncan then boarded a flight in Liberia to Brussels.  His trip continued from Brussels to Washington and arriving to his destination visiting family in Dallas, TX.  

 

Questionnaires are given to those taking flights out of Liberia to combat infection by segregating those with a higher risk of infection.  Those with a higher risk of infection would include those who cared for Ebola patients or handled the bodies of those who passed away from the disease.  

 

The obvious risk is that the one being questioned is honest in their answers and lack of honesty puts scores at risk.

 

 The Liberian President Ellen Johnson 

Sirleaf condemned Mr. Duncan’s actions directly when it was uncovered that 

Mr. Duncan cared for Ebola patients and failed to be honest in his questionnaire.

 

“The fact that he knew (he was exposed to the virus) and he left the country is unpardonable, quite frankly.” 

Liberian President Ellen Johnson Sirleaf (Canadian news service CBC)

 

California authorized its department of health to “quarantine, isolate, inspect and disinfect persons, animals, houses, rooms, other property, places, cities or 

localities, whenever in its judgment such action is necessary to protect or preserve the public health.”  Texas quarantined dozens in relation to Mr. Duncan and those he came in contact with.   

 

The hospital where Mr. Duncan received treatment, Texas Health Presbyterian Hospital, felt like a “ghost town” according to a local health care vendor.  Before the Ebola infection, average wait times were 52 minutes but for a short time after Mr. Duncan was treated there was no wait time. (abcnews.com).  

 

Traffic to this state-of-the-art hospital had virtually stopped.  This fear spread beyond the hospital building to 

adjoining buildings on the campus in the form of 40% to 60% appointment 

cancellations in doctor’s private offices.  Confidence was quickly restored and fear subsided once healthcare workers stopped testing positive for Ebola. 

 

Of course, in writing public health legislation, legislators must afford health authorities discretion because:

•    Legislators are not necessarily medical or scientific experts and will not be able to project every possible scenario that the statute will apply to.

•    Statutes must be flexible to be effective over time.

 

This flexibility does not omit the use of scientific discretion, but statutes must hold health officials accountable by requiring them to justify their decisions based on science and the need to protect public health.  

 

In the legislative development process, the subject matter experts with direct knowledge of field activities must be consulted in order to produce useful statutes with the flexibility to be useful over time.  In addition to statutes, official guidelines offer a quick outline to organize a review of infection control policies across the spectrum of healthcare in facilities, providers, and outbreak response.  

 

The Centers for Disease Control and Prevention (CDC) has produced guidelines that for Ebola and pandemic preparedness that cover a vast ecosystem of controls to review in topics such as laboratory safety, evaluating patients, and disinfecting healthcare environments.

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