APHA 2005 The Administrative Law Basis for Public Health Practice

1. APHA 2005The Administrative Law Basis for Public Health Practice Edward P. Richards Director, Program in Law, Science, and Public Health Louisiana State University Law Center richards@lsu.edu Slides and other info: http://biotech.law.lsu.edu/cphl/Talks.htm

2. What is Administrative Law? • Administrative law is the law of government. • Public health includes many personal behaviors • Public health law deals with the powers of the government to protect the public health • Based on expert analysis and decisionmaking, not jury decisions • Understanding administrative law principles is critical to effective public health practice

3. Objectives • Understand how the history of public health law shapes current practice • Understand how administrative law principles govern public health practice • Understand that the government's public health powers are very broad, and have not been limited by modern constitutional law decisions • Understand that government power must be used wisely or the public will not support public health initiatives

4. Public Health in the Colonies • Most of the population lived in poorly drained coastal areas • Cholera • Yellow Fever • Urban Diseases • Smallpox • Tuberculosis • Average Life Expectancy in cities was 25 years

5. Public Health Law Actions in Colonial America • Quarantines, areas of non-intercourse • Inspection of ships and sailors • Nuisance abatement • Colonial governments had and used Draconian powers • The Police Powers

6. Police Power • Police departments came later • Power to protect the public health and safety • Communicable disease control • Quarantine • Sanitation • Nuisance • Drinking water

7. Actions in the 1798 Yellow Fever Epidemic 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 non-intercourse between New York and Philadelphia. (Argument of counsel in Smith v. Turner, 48 U.S. (7 How.) 283, 340-41 (1849))

8. Articles of Confederation • In effect between independence and the ratification of the Constitution in 1789 • Left all powers to the states • The states provided what support they wanted to the federal effort • Did not work during the Revolutionary War • Remember the stories about Washington's troops not having shoes?

9. Public Health in the Constitution • Federal Powers • Interstate commerce • International trade and travel • War powers • State Powers • Powers not given to the federal government • Police Powers

10. The Jurisprudential Consequences of Pre-Constitutional Disease Control Efforts • The founders saw communicable diseases as the same type of threat as the threat of invasion by foreign troops • The drafters of the Constitution clearly intended to give broad powers to the states to protect the public health • The United States Supreme Court has not limited these powers • Few state courts have limited public health power • Political support has declined as successful public health has reduced the fear of communicable diseases

11. 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

12. Public Health as National Security Law • Can the Feds require smallpox vaccinations? • Invasion Clause? • Using national security powers? • Do national security powers depend on an external threat or an insurrection? • Can they be used for disasters and diseases? • The founders saw this as the role of the states

13. Public Health as the First Administrative Law • Among the first acts of Congress • Public health service hospitals and quarantine stations • State and Local Government • Boards of Health - Paul Revere sat on the Boston Board of Health

14. 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

15. 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.

16. 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

17. 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

18. What do Public Health Agencies Do? Core Public Health Functions

19. Public Health Basics:Controlling Communicable Diseases • Most legally contentious because of the direct impact on individuals • What are the public health actions the law needs to support?

20. Surveillance • The beginning point for all disease control • What is the incidence and prevalence of the disease? • Are these changing? • Is there a new disease? • In the community? • Anywhere in the world

21. Case Investigation and Notification • Who is infected? • Is there an index case? • Who is at risk of the disease? • What can contacts do to reduce the risk of contracting or spreading the disease?

22. Outbreaks • What is an outbreak? • Controlled diseases are increasing beyond expectations • New diseases such as West Nile • Diseases that should not be in the community • What can be done to manage the outbreak?

23. Emergencies • Most outbreaks are not emergencies • What makes an emergency? • Public fear, often driven by the media • Real threats to the public - West Nile • Smallpox • How do public health powers change in an emergency?

24. Public Health Legal Tools

25. 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

26. What about Privacy? • No right of privacy when the individual's condition threatens the public health • No right to veto the report • No duty to inform the patient that you will make the report • Strong policy reasons to not inform the patient • Public health reporting is exempt from HIPAA, but many health care providers do not understand this

27. 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

28. 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

29. 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?

30. Vital Statistics • Birth and death records • Disease registries

31. Agency Legal Functions What are the legal tools to carry out these functions?

32. Rulemaking - Public Health Regulations • Legislature must delegate its power • Why promulgate regulations? • Gives direction to regulated parties • Allow public participation • Harmonize practices between jurisdictions • Limits the issues if there is Judicial Review • Can be overruled by the legislature

33. When Agencies Make Decisions – Adjudications • How is an adjudication different from a rule? • Specific facts and specific parties • How is an adjudication different from a trial? • Expert decisionmakers • Agency makes the final decision so decisions are uniform (Current controversy in LA) • Conflict of interests can be a problem

34. Permits and Licenses • Permits • Licenses • Rights for duties • Issued on Set Criteria • Conditioned on accepting regulatory standards • Warrantless inspections

35. Inspections • Legally classified as an adjudication • License and permit holders • Consent to inspections as a condition of the license or permit • Other individuals as businesses • What the expectations of privacy? • Is it a valid administrative search?

36. Administrative Searches • Administrative warrants • No probable cause • Area warrants • Limits to administrative warrants • Cannot be used to undermine criminal due process

37. Enforcement Actions • Civil fines • Injunctions to stop dangerous activities • Court orders to force compliance with public health regulations • Criminal prosecution for disobeying a court orders

38. Protection for Public Health Decision-Making • Sovereign Immunity • The government cannot be sued without its permission • The federal government has a limited right to allow individuals to sue states • Discretionary Authority • The right to make wrong decisions without liability • Suits against individuals are shifted to the state • Individuals can be sued if they act outside their job

39. The Advisory and Consultative Role • Public health is about prevention as well as enforcement • Opening a new restaurant • Designing food handling area • Training kitchen personnel • Managing day to day problems • The major role of the CDC

40. Acting in an Emergency • Power expands with necessity • Courts do not block emergency actions • Knowing what to do is what matters • Emergency powers laws are easy to pass, but do not solve resource and expertise problems • Law matters a month after • The more laws you pass, the more loopholes you can create

41. Limits on Public Health Powers

42. Prevention, Not Punishment • Must be prospective • Public health regulations are about preventing future harm • Cannot be used to imprison to punish • Must be civil, not criminal • The reason for the action, and not the results, determine whether it is criminal • Quarantine in a jail • Megan's laws and confinement of sexual predators • Charleston Case - testing pregnant women for drugs

43. Due Process in Public Health • When do you get a hearing? • Classic Food Sanitation Case - North American Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908) • Is there a Constitutional Right to a Hearing before the Health Department Acts? • Is this a taking - Must the state pay for the chicken? • Post-action hearings can satisfy due process • Judicial protection through injunctions

44. What if You are Quarantining People? • Must there be a hearing first? • Not under the US Constitution • (Some states require hearings by statute) • Must there be a statutory provision for a hearing after the quarantine? • No - the Constitution guarantees habeas corpus • Right to contest your confinement • Statutes can limit judicial review • Requiring administrative appeal before judicial review

45. Breakout Can You Really Make a Quarantine Work?

46. Appealing Rulemaking • The agency must have the legal power to make rules • The rule must be consistent with the agency's legal mission • The agency must follow the proper procedures • If this is done, there is no legal right to challenge the rule in court • You can ask the agency to reconsider a rule

47. Appealing an Adjudication • The agency may not be bound by the recommendations of the administrative judge • The agency can require an internal appeal • The agency can set deadlines for appeals • Exhaustion of remedies • Required before judicial review • Unless the agency has acted illegally

48. Judicial Review of Agency Actions • Standards is set by the legislature • De novo • Arbitrary or capricious - most common • No review – smallpox compensation act • Cannot limit constitutional right of review to allow illegal actions • Using public health powers to punish • Using public health power for a taking

49. Can You Challenge the Agency's Policy Decisions - 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."

50. 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