Administrative and Public Health Law

Administrative and Public Health Law An Introduction for MPH Students Edward P. Richards Director, Program in Law, Science, and Public Health Louisiana State University Law Center richards@lsu.edu http://biotech.law.lsu.edu

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

Administrative Law • Public health law, and most health law, is carried out by government agencies • State Department of Health • HHS - CDC, FDA • EPA • 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

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

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

Handout on LA General Powers

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

Limits on Agency Power • Agencies cannot act beyond the constitution or the enabling legislation • Agencies must follow appropriate procedures • APAs • Agency rules

Federal Court 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

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

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

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?

Study Problem • Bathhouses in LA

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 • 10-20 contacts a night • 1000+ 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

Administrative and Public Health Law