Administrative and Public Health Law

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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_at_lsu.edu
• http//biotech.law.lsu.edu

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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.

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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

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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

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Police Power

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

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Federal Powers

• Direct constitutional powers
• Interstate commerce
• Foreign Trade
• War
• Civil Rights (13, 14, 15th amendments)
• Income Tax
• Most regulation is Commerce Clause

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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?

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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

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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

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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

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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.

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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

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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

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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

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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

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Handout on LA General Powers
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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

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Limits on Agency Power

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

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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

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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

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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."

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Core Public Health Activities
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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

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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

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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

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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?

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Vital Statistics

• Birth and death records
• Disease registries

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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

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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

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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?

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Study Problem

• Bathhouses in LA

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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

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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

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Transmissibility (rough)

• Contact efficiency X number of contacts__________
  _______________________
• percent of immune/infected persons

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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

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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

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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?

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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

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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