Administrative and Public
Health Law
An Introduction for Health Care
Administrators
Presented Spring 2003
University of New Orleans
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



Terrible epidemics



Malaria, Yellow Fever
Smallpox
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


Can the Feds do local disease control?



US Supreme Court says no, but ...
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
Constitutional Criminal Rights







Right to remain silent
Confront accusers and present witnesses
Right to counsel
Trial by jury
Certain other protections attendant on their
criminal prosecution.
These rights make criminal prosecutions slow
and expensive
Specific laws limit the ability of law
enforcement to respond to new problems.
Administrative Law

Public health law, and most health law,
is carried out by government agencies




State Department of Health
HHS
HCFA, now CMS
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
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



New Deal




Antitrust
Railroads
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



Can be detailed or broad




Establishes structure and mission
Budget
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
Separation of Powers

Agencies are part of the executive branch of
government



Federal agencies are under the President


Created by legislatures
Reviewed by courts
Independent agencies have appointed
commissions
States can have multiple executives

AG, Insurance Commissioner, etc.
Legal Justification for Agencies

Expertise


Efficiency


Agencies are meant to have expert staff who
manage complex problems
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
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
Judicial Review


Agencies cannot act beyond the
constitution or the enabling legislation
Agencies must follow appropriate
procedures


APAs
Agency rules
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
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



VD/STI/TB, others




Jacobson - no free riders
No requirement for religious exception
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
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
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?