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Introduction to Public Health Law

Introduction to Public Health Law. New Health Officer Orientation Wausau, Wisconsin November 5, 2012. White v. Miller Supreme Court of Georgia 219 S.E.2d 123. Argued: July 8, 1975 Decided: September 16, 1975 Disposition: Judgment reversed Appellant’s Counsel: Daniel D. Stier.

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Introduction to Public Health Law

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  1. Introduction to Public Health Law New Health Officer Orientation Wausau, Wisconsin November 5, 2012 [Enter the presentation name in Insert > Header & Footer] 7/24/2011

  2. White v. MillerSupreme Court of Georgia219 S.E.2d 123 Argued: July 8, 1975 Decided: September 16, 1975 Disposition: Judgment reversed Appellant’s Counsel: Daniel D. Stier

  3. GSBA School Board of DISTINCTION Stewart County Board of Education Named a GSBA School Board of Distinction

  4. Value of Public Health Law • Laws can solve public health challenges, including: • Second-hand smoking laws • Air bag requirements • Vaccination requirements

  5. Federal-State-Local Relationship • Most public health activities occur at state and local levels • Federal government assists states and provides lead role in controlling diseases related to interstate/international movement

  6. Example: Disease Reporting Laws • Public health surveillance requirements derive from state/local laws • Requirements reflect national guidelines coordinated by CDC • Specialized disease reporting • OSHA requires reporting and tracking of occupational diseases • USDA inspects for plant and animal disease

  7. What is Public Health Law? • It’s a Question of Balance - • Powers and Duties • Limits

  8. Jacobson v. MassachusettsU.S. Supreme Court, 197 U.S. 11 (1905) • 1902 Smallpox Outbreak (MA) • Statute compelled vaccination of residents not recently vaccinated • Jacobson refused to comply with vaccination order and was fined • Supreme Court: Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.

  9. Jacobson v. MassachusettsKey Holdings and Implications • Beginning of application of modern constitutional analysis to disease control law • Key holdings for states: • Use of police powers to protect public health • Delegation of authority to health agencies and other government subdivisions • Effective public health interventions may limit individual liberty • Provides constitutional support for spectrum of contemporary public health laws

  10. Police Power • Reserved to the states by the Tenth Amendment • Broad power to protect the public’s health • “The department has power to execute what is reasonable and necessary for the prevention and suppression of disease.” • Sec. 250.04(1), Wisconsin Statutes

  11. Police Power (Public Health) Surveillance, reporting and investigation Isolation, quarantine and social distancing Vaccination and treatment Evacuation Property management/control

  12. Powers and Duties • Must Act within the scope of your employment • Ultra Vires

  13. Restricting Personal Liberty • Equal Protection • Due Process • What is the governmental interest? • Is the intervention targeted? • Is the means the least restrictive? • Has the process been fair?

  14. Types of Laws • Constitutions • Statutes • Rules/Regulations • Local Ordinances/Regulations • Court Decisions • Executive Orders

  15. Interpreting Laws: Implied/Included/Inherent Powers • Congress has only those powers enumerated in Article 1, Section 8 of the Constitution • Though not mentioned in Art. 1, Sec. 8, the U.S. Supreme Court held that Congress was authorized to establish a national bank in the foundational case of McCullough v. Maryland, 17 U.S. 316 (1819)

  16. Interpreting Laws • Courts do it all the time • So do lawyers, and in doing so, they assess risks

  17. Constitutional Foundation • Preemption • First Amendment • Fourth Amendment • Fifth and Fourteenth Amendments • Tenth Amendment

  18. Wisconsin Statutes – Chapter 250 [Enter the presentation name in Insert > Header & Footer] October 23, 2012 • Health; Administration and Supervision • 250.04(7): The department may promulgate and enforce rules and issue and enforce orders governing the duties of all local health officers and local boards of health and relating to any subject matter under the department's supervision that are necessary to provide efficient administration and to protect health.

  19. Wisconsin Statutes – Chapter 251 [Enter the presentation name in Insert > Header & Footer] October 23, 2012 • Local Health Officials • 251.06(3) A local health officer shall: (a) Administer the local health department in accordance with state statutes and rules. (b) Enforce state statutes and rules. (c) Enforce any regulations that the local board of health adopts and any ordinances that the relevant governing body enacts, if [they] are consistent with state public health statutes and rules.

  20. Wisconsin Statutes – Chapter 252 [Enter the presentation name in Insert > Header & Footer] October 23, 2012 • Communicable Diseases • 252.06(3): The diagnostic report of a physician, the notification or confirmatory report of a parent or caretaker of the patient, or a reasonable belief in the existence of a communicable disease shall require the local health officer immediately to quarantine, isolate, require restrictions or take other communicable disease control measures in the manner, upon the persons and for the time specified in rules promulgated by the department.

  21. Wisconsin Statutes – Chapter 254 [Enter the presentation name in Insert > Header & Footer] October 23, 2012 • Environmental Health • 254.59(1): If a local health officer finds a human health hazard, he or she shall order the abatement or removal of the human health hazard on private premises, within a reasonable time period, and if the owner or occupant fails to comply, the local health officer may enter upon the premises and abate or remove the human health hazard.

  22. Wisconsin Statutes – Chapter 66 (General Municipality Law) • Intergovernmental Cooperation • Sec. 66.0301(2) of the Wisconsin Statutes: …any municipality may contract with other municipalities and with federally recognized Indian tribes and bands in this state, for the receipt or furnishing of services or the joint exercise of any power or duty required or authorized by law.If municipal or tribal parties to a contract have varying powers or duties under the law, each may act under the contract to the extent of its lawful powers and duties. A contract under this subsection may bind the contracting parties for the length of time specified in the contract. This section shall be interpreted liberally in favor of cooperative action between municipalities and between municipalities and Indian tribes and bands in this state.

  23. WI Admin. Code – Chapter DHS 145 [Enter the presentation name in Insert > Header & Footer] October 23, 2012 • Control of Communicable Disease • 145.06(5): (5) Failure to comply with directive. When a person fails to comply with a directive under sub. (4), the official who issued the directive may petition a court of record to order the person to comply. In petitioning a court under this subsection, the petitioner shall ensure all of the following: • (a) That the petition is supported by clear and convincing evidence of the allegation. • (b) That the respondent has been given the directive in writing, including the evidence that supports the allegation, and has been afforded the opportunity to seek counsel. • (c) That the remedy proposed is the least restrictive on the respondent which would serve to correct the situation and to protect the public's health.

  24. Working With Legal Counsel • Build your relationship • Educate your attorney about your work and challenges • Anticipate legal issues • Contact your attorney as soon as possible • Be candid

  25. Anticipating & Recognizing Legal Issues • Is there a reasonable chance that the public’s health is or may be threatened? • Is your ability and authority to address the situation unclear? • Is there a possibility that the event or circumstance could expose the health department to liability, media attention or political pressure? • Would the cost of a court case outweigh the cost of consulting an attorney?

  26. Framing Legal Questions • Some hospitals have cases presenting with the H1N1 virus: • May I mandate that all health care workers get vaccinated? • I’d like to require mandatory vaccinations for staff in high risk areas like hospital and schools. How feasible will this be given my authority under the law and prior legal rulings?

  27. Politics: 1898-99 Smallpox Epidemics “The interests and medical understandings of … government bodies often clashed with those of health officers. For the lay officials, who…were typically merchants, farmers, and other men ‘unfamiliar with matters pertaining to general sanitation and public health’, the smallpox question came down to taxpayer dollars and common sense….If they strayed too far from the common sense of the community, they risked losing their jobs.” Pox: An American History [Michael Willrich; Penguin Press at page 108]

  28. Our Political Environment FY 2012 HHS APPROPRIATIONS ACT SECTION 503 Lobbying Prohibitions --Contains confusing language about use of HHS funds for advocacy & lobbying --Clearly an effort by special interests to limit public health involvement in local government policy development --CDC guidance provides some assistance

  29. SECTION 503 Restrictions on Fed. Funds: • Extends restrictions to local governments • Covers pending or proposedregulation, administrative action, or order by executive branch of a state or local government • Includes any activity to advocate or promote a proposed, pending, or future Fed., state, or local tax increase or restriction on a legal consumer product, including but not limited to the promotion of gun control.

  30. Public Health Legal Support • At no cost, the Network provides: • Insightful legal assistance • Helpful resources • Opportunities to build connections • With a single point of entry to experts on a wide-range of topics, it’s practical, reliable and seamless.

  31. Public Health Topics Working with experts around the country, the Network provides support on a variety of topics: • Cross-border public health • Emergency legal preparedness and response • Environmental public health • Food safety • Health reform • Health information data sharing • Injury prevention and safety • Obesity prevention • Public health agency accreditation and shared service delivery • Public health statutes and regulatory information • Tobacco control • Tribal public health law • And other topics

  32. National Scope with Local Expertise • Provide support across the country • Divided into 5 Regions to provide local and state support • Contact your Region for assistance

  33. Five Regions • National Coordinating Center/Northern Region • Public Health Law Center at William Mitchell College of Law • Eastern Region • The University of Maryland School of Law working with the John Hopkins Bloomberg School of Public Health • Mid-States Region • University of Michigan School of Public Health • Southeastern Region • UNC Gillings School of Global Public Health working with the National Health Law Program • Western Region • Sandra Day O’Connor College of Law at Arizona State University working with the University of New Mexico School of Law

  34. Who can use the Network • Anyone committed to public health can join the Network: • Local, state, tribal and federal public health officials • Public health practitioners • Attorneys • Policy-makers • Advocates

  35. Benefits of Joining • Get the latest information on public health law • Connect with others in the Network • Share your public health law knowledge and experiences • Get help developing, implementing and enforcing public health laws • Access legal assistance and resources

  36. Legal Technical Assistance Technical assistance does not include providing legal advice or representation. • Legal assistance can include: • Strategizing about potential legal options • Help finding experts, resources and tools • Support to develop, implement and enforce legislation, statutes or regulations

  37. Access Helpful Resources • Network products, such as fact sheets, tables of state laws, legal briefs and more • Monthly webinar series • Public health lawyer directory • Library of legal assistance questions and answers • External resources • Network newsletters • Events

  38. Contact the Network • Visit www.networkforphl.org • Call your Region • Office hours from 9 a.m. to 5 p.m. in the respective time zone of the region’s main office • Expect a first response within 72 business hours

  39. Dan Stier, Director National Coordinating Center The Network for Public Health Law William Mitchell College of Law St. Paul, Minnesota DStier@networkforphl.org

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