State public health emergency bills getting favorable reception

Robert Roos

Apr 12, 2002 (CIDRAP News) A little more than 6 months after the first signs of the anthrax outbreak of 2001, at least six states have passed legislation expanding their powers to cope with public health crises such as bioterrorist attacks, including the power to require people to be vaccinated, treated, isolated, or quarantined. Many more states are considering such proposals.

"That's a remarkable level of activity. We're extremely pleased with the results," said James Hodge, Jr, JD, project director at the Center for Law and the Public's Health (CLPH) at Johns Hopkins and Georgetown Universities. The center's co-director, Lawrence O. Gostin, JD, LLD, is the author of a model bill on which most of the current state bills are based at least in part.

Last fall, the CLPH was commissioned by the Centers for Disease Control and Prevention (CDC) to quickly complete a model bill that states could imitate in strengthening their public health laws. The Model State Emergency Health Powers Act (MSEHPA) was first published in October and was updated in December. The act authorizes the governor to declare a public health emergency. During the emergency, the state could require vaccination, treatment, isolation, and quarantine; take control of vaccines, drugs, and hospitals if necessary; and destroy contaminated property. The law also calls for systematic planning and addresses several other matters, such as disease surveillance and liability for healthcare providers.

Since the model act was published, proposals based at least partly on it have been introduced in 32 states, according to a report issued by Hodge Apr 8. On the basis of Hodge's report and other sources, six state legislaturesGeorgia, Maine, South Dakota, Utah, Florida, and Marylandhave passed legislation. In most if not all of these, the governor has signed or is expected to sign the legislation.

In another eight states, according to Hodge's report, bills have passed one legislative chamber and remain under consideration: Hawaii, Idaho, Minnesota, Missouri, Oklahoma, Washington, Wisconsin, and Wyoming. In addition, a bill passed the Mississippi Senate but died in committee in the state House.

In Maryland, home to the CLPH, Gov. Parris N. Glendenning signed a "Catastrophic Health Emergencies" bill (SB 234) Apr 9 as part of a package of bills dealing with the threat of terrorism. The measure authorizes the governor to declare a "catastrophic health emergency" in the face of an imminent threat and, in that circumstance, empowers state health officials to take such steps as seizing medical supplies and requiring people to be vaccinated, treated, and quarantined. The law allows groups who are quarantined to request a court hearing and lays out rules for such hearings.

"Working with the legislature, we have been able to strike a balance between protecting the safety of Marylanders and protecting basic civil rights," Glendenning said in an announcement of the signing.

The Maryland bill aroused little opposition, judging from records on a Maryland legislative Web site. It was introduced in the Senate in January and passed the full Senate on a 42-4 vote Mar 22. It was then sent to the House, where it sailed through on a 128-9 vote just 11 days later.

In Florida, the emergency health powers act (SB 1262) sparked even less opposition, gaining unanimous support in committees before it passed unanimously in the Senate and House on Mar 20 and Mar 22, according to a report on a Florida legislative Web site. The bill had not yet reached the desk of Florida Gov. Jeb Bush for signing as of Apr 11, said Bush's press secretary, Elizabeth Hirst.

The Florida bill empowers the state health officer to declare a public health emergency. In such emergencies, the officer can order citizens to be examined, vaccinated, treated, or quarantined for communicable diseases that endanger public health. Anyone who refuses examination, vaccination, or treatment can be quarantined, and if quarantine is not practicable, the state health officer can use "any means necessary to vaccinate or treat the individual," the act states. In addition, the act allows the state health officer to temporarily renew the inactive licenses of physicians, nurses, and emergency medical personnel in an emergency, and it provides liability protection for healthcare providers who treat patients in emergency situations.

Though the Florida bill drew little legislative opposition, at least one group, the American Association of Physicians and Surgeons (AAPS), has publicly urged Bush to veto the measure.

The AAPS, which describes itself as a voice for private physicians and dedicated to protecting "the sanctity of the patient-physician relationship," issued a statement last week criticizing the power the Florida bill gives the state health officer. "AAPS is totally opposed to SB 1262 . . . imposing medical treatments on unwilling citizens at gunpoint, or with threats of taking children from their parents, or with other coercive measuresobliterating informed consent and due process of law," wrote AAPS Executive Director Jane M. Orient in a letter to Bush. The organization, which opposes "government-ordered vaccine mandates," also voiced concern that the legislation could be used to invalidate all options that parents now have for exempting their children from vaccinations required for school attendance.

The AAPS also has fought proposed public health emergency legislation in New York. At a hearing March 14, AAPS General Counsel Andy Schlafly criticized the bill as "irrational and unconstitutional" for conferring broad powers on the governor during a public health emergency declared by that official. Schlafly said the provision gives the governor "absolute authority for 60 days, with the legislature powerless during that period." He also attacked the bill on several other counts, including a definition of infectious disease that he said "includes virtually everything."

Other states that have passed public health emergency measures include Georgia, Maine, South Dakota, and Utah. The Georgia measure originated with the governor and was passed by both houses Apr 5, according to Hodge's report. Likewise, a bill closely patterned on the MSEHPA has passed both houses of the Maine Legislature and is expected to win the governor's signature, according to Hodge.

In South Dakota, Gov Bill Janklow on Feb 27 signed a bill (HB 1303) that broadens his emergency powers for responding to terrorist bioterrorist attacks, according to a report on Janklow's Web site. Hodge's report said the measure does not include everything in the model act but does grant the governor some of the powers addressed in the model. In Utah, the legislature passed a law (HB 231) based on the model act, and it was signed by Gov. Mike Leavitt Mar 18, according to Hodge and the governor's office.

Hodge's report said a bill nearly identical to the model act was introduced in the Kentucky Legislature in January but was withdrawn in February. However, Hodge said yesterday that the legislature is still considering another bill that is similar in substance but less detailed and complex than the one withdrawn. He said it appeared that legislators supporting the longer bill agreed to drop it in favor of the less complex measure.