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?