Model State Emergency Health Powers Research Articles

Fix the backlash against public health

Societies generally have reacted to deadly epidemics by strengthening health systems, including laws. Under American federalism (the constitutional division of power between states and the federal government), individual states hold primary public health powers. State legislatures have historically granted health officials wide-ranging authority. After the anthrax attacks in the United States in 2001, the US Centers for Disease Control and Prevention (CDC) supported the Model State Emergency Health Powers Act, which granted public health officials even more expansive powers to declare a health emergency and respond swiftly. But all that ended with COVID-19, as state legislatures and courts gutted this authority. The next pandemic could be far deadlier than COVID-19, but when the public looks to federal and state governments to protect them, they may find that health officials have their hands tied behind their backs.

Bracing for Armageddon?: the science and politics of bioterrorism in America

1. Tales of a Dark Winter: A Play in Three Acts: What could happen in a bioterrorist smallpox attack 2. Three Wake-up calls (And Some Near Misses): Bioterrorist incidents in the US and elsewhere: Rajneeshees Aum Shinrikyo 2001 postal anthrax attacks Minnesota Patriots council Larry Wayne Harris 3. Agents of Terror: The CDC list of bioterrorism pathogens (for anthrax, smallpox, plague, tularemia, botulism, Ebola). How they work, what we can do to protect ourselves 4. Genetically Modified Pathogens 5. The Ultimate Bioterrorist Mother Nature!: 1918 influenza pandemic SARS H5N1 6. The Very Food on Your Plate (And the Water in Your Glass): Agroterrorism (livestock, crops) protecting our water supply 7. America Reacts: The Anti-Terrorism Acts of 1989, 1996, and 2002 the Strategic National Stockpile the Bioshield and Biowatch Programs progress to date the National Strategy for Pandemic Influenza. 8. Political, Legal, and Social Issues in A National Health Emergency: Social, legal, and civil rights issues surrounding major catastrophic events quarantine, mandatory vaccinations the Model State Emergency Health Powers Act. 9. The Politics of Bioterrorism in America 10. Assessing the Threat: Why virtually all bioterrorism attacks to date have failed what it would take to succeed. Who could do it?

Public health law and disaster medicine: Understanding the legal environment

Disaster medicine specialists, policy makers, and the public often feel frustrated when they encounter the complex legal framework that surrounds public health emergencies and disasters. Such a framework is particularly difficult to understand when one considers that the federal government has no express powers over public health or disaster management. In fact, under the US Constitution, the states, rather than the federal government, possess public health governance. Although public health sovereignty formally resides within the states, and notwithstanding the federal government's lack of express constitutional powers over public health crises and disaster management, the federal government has gradually taken on a greater leadership role in managing public health emergencies. In order to clarify the state and federal responsibilities surrounding public health emergencies and disasters, this article explores necessary and pertinent legal topics. These topics include public health duties, public health disasters, state sovereignty, governmental coercion, de facto constitutional empowerment, separation of powers, limited powers, federalism, state police powers, general and federal declarations of emergencies, the Model State Emergency Health Powers Act (MSEHPA), and public health and national security.

The Role of the Federal Government in Response to Catastrophic Health Emergencies: Lessons Learned from Hurricane Katrina

In much of the recent thought devoted to the role of states in responding to catastrophic public health emergencies, as most clearly evidenced by the commentary surrounding the Centers for Disease Control and Prevention - sponsored Model State Emergency Health Powers Act (Model Act), there is a focus on state governments being viewed as the exclusive controlling governmental agent supervising the governmental response. Much of that thinking is premised on a view of limitations placed on Congress' power to act in public health emergencies emanating from Commerce Clause restrictions in the Supreme Court decisions of U.S. v. Lopez, 514 U.S. 549 (1995) and U.S. v. Morrison, 529 U.S. 598 (2000). This state-oriented focus has tended to blind state and local emergency responders to the substantial assets that can be deployed by the federal government either as an important supplement to the state and local response; or, in appropriate circumstances and under Congressional authority, that may preempt the state response if it is deemed ineffective by the federal government. Any purported commerce clause limitations are belied by a careful reading of the Supreme Court jurisprudence in this area and the fact that Congress itself has repeatedly authorized a prominent federal role in responding to incidents of national significance through a plethora of enactments. Moreover, the Department of Homeland Security's National Response Plan (NRP) promulgated in December 2004 in response to a Congressional directive contemplates federal leadership in responding to catastrophic public health emergencies that could override conflicting state actions. The response to Hurricane Katrina only serves to buttress this point. The widely recognized federal ineffectiveness in initially reacting to Katrina has now driven the Bush Administration to state affirmatively that the federal government must assume the leading role in response to future major disasters, including possible use of the active military either pursuant to exceptions to the Posse Commitatus Act or proposed legislation designed to amend that statute. This article explores the issues surrounding the relationship between federal and state governments responding to catastrophic public health emergencies.

Bioterrorism: Cases When Public Health Agencies Should Have Sweeping Powers

The dispersal of anthrax spores in October 2001 showed Americans that they are vulnerable to bioterrorism. The ineffective response to bioterrorism demonstrates that public health agencies do not have plans or training exercises in place to deal with this emerging threat. Although the CDC asked that the Model State Emergency Health Powers Act (MSEHPA or Model Act) be drafted to prepare the states for these emerging risks, critics like George Annas assert that the acts are “blatantly unconstitutional” (MSEHPA,2005,p.1). In this paper, I intend to explore the conflict between individual rights and sweeping powers of public health agencies as described by the Model State Emergency Health Powers Act.

SIDEL ET AL. RESPOND

We are grateful to Dowling and Lipton for their letter and to the Journal for providing an opportunity to continue this important discussion. Dowling and Lipton provide additional data that underscore the absurdly distorted priorities of bioterrorism preparedness spending relative to spending for real public health needs in the United States. Outside the United States, the United Nations has estimated that about US$10 billion invested annually in safe water supplies could reduce by one third the 4 billion annual cases of diarrhea that result in 2.2 million deaths.1 Bioterrorism preparedness spending thus diverts resources not only from US public health needs but also from urgent international public health work. In addition, overstated concern with bioterrorism has led to a climate of fear that is inimical to public health and that incites constraints on civil rights and human rights. The Model State Emergency Health Powers Act, elements of which had been adopted by states, and the USA Patriot Act and the Homeland Security Act, which have been adopted by the US Congress, are examples of such constraints.2,3 The potential for misuse and abuse of emergency powers is great in a climate in which even a rumor of a bioterrorist threat can evoke panic.4 The overall climate of fear to which an exaggerated fear of bioterrorism contributes has led to domestic and foreign policies that are antihealth, such as the disastrous “preemptive” war in Iraq that has killed and injured many military personnel and civilians and has diverted funds from health, education, and social services. The now discredited campaign for the war on Iraq followed a well-known pattern. Nazi leader Herman Goering, interviewed during the Nuremberg Trial in 1945, said, “The people can always be brought to the bidding of the leaders. That is easy. All you have to do is to tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country.”5(pp278–279) While it may be hard to convince the people of the United States that fears of bioterrorism are being overstated for political reasons and that the health of the people of the United States and the world requires action for peace and justice and the denunciation of war, this is nonetheless an urgent priority for public health workers.6

The Proposed Model State Emergency Health Powers Act

The Model State Emergency Health Powers Act proposes state legislation that should be enacted to ensure an adequate and coordinated response to public health emergencies. Virtual Mentor is a monthly bioethics journal published by the American Medical Association.

Political authority in a bioterror emergency.

The events of September 11, 2001 have prompted significant concern to protect against future terror attacks, especially attacks that would involve the use of biological weapons - the most dangerous weapons of massdestruction considered accessible to terrorist groups and organizations. This concern, in turn, has led to a re-evaluation of the public health system and its preparedness to meet the challenges of treating a large number of people in circumstances of public fear and significant demand for resources. One important result of this re-evaluation has been the development of a Model State Emergency Health Powers Act (MSEHPA) that is designed to grant state officials the authority necessary to coordinate an effective response to biological tenor. The Model Act was first publicized in late October, 2001,and a revised version was publicized December21, 2001.As of October 1,2002,legislation based on the Act had been introduced in thirty-six states, and versions of the Act had been enacted in twenty states and the District of Columbia.

Protecting the Public's Health in An Era of Bioterrorism: The Model State Emergency Health Powers Act

During the fall of 2001, public health law scholars at the Center for Law and the Public's Health at Georgetown and Johns Hopkins Universities were asked by the Centers for Disease Control and Prevention (CDC) and a series of national partners to develop the Model State Emergency Health Powers Act (MSEHPA). The MSEHPA provides a series of modern powers for states to consider in responding to catastrophic public health emergencies, including bioterrorism events. Since December 2001, provisions based on the MSEHPA have been introduced in nearly 40 states and passed in 20. Underlying the development of the act is a long-standing debate between legal and ethical scholars and law- and policymakers as to the appropriate ways to balance individual and communal rights. The drafting challenge was to create a comprehensive model law that provides adequate powers to protect the public's health while also respecting individual and group rights. The MSEHPA empowers public health agents with broad authority and simultaneously limits the exercise of power in time, duration, and scope to accomplish communal goals of abating serious public health threats. Coercive public health powers, particularly isolation and quarantine, are exercised on a temporary basis, only so long as are reasonably necessary and only among persons who justifiably may pose a risk to others because of their contagious conditions. Individual rights to contest the coercive use of public health powers, even during an emergency, are secured.

The politics of emergency health powers and the isolation of public health.

The Model State Emergency Health Powers Act became a contentious document in more than 30 states in 2001 and 2002. Controversy has focused on recommendations by the authors of the Model Act that seemed to accord higher priority to collective action in emergencies than to protecting privacy and property. This situation has several causes that derive from the characteristics of public health emergencies during the past half century and the relative isolation of public health officials from both their colleagues in government and many members of the public.

Security and Privacy After September 11: The Health Care Example

This article examines the interaction between data which was a highly salient political issue before the events of September 11, and cyber-security and homeland security, which became much more salient after those events. The article illustrates the shift in salience by examining the USA-PATRIOT Act, which was passed quickly in the fall of 2001 despite containing a number of surveillance provisions that had been explicitly rejected by Congress in 2000. To understand the interaction between and security, the article examines the medical rule issued in 2000 under the Health Insurance Portability and Accountability Act (HIPAA). (In the interests of full disclosure, the authors were the lead White House officials in coordinating the rule.) The analysis here shows that the HIPAA rule stands up well to the concerns of the post-September 11 era. Concerns about public safety are met by existing provisions that permit disclosures to protect national security, to react to emergency circumstances, and to respond to law enforcement inquiries. The article explores in particular detail the proposed Model State Emergency Health Powers Act, drafted in the wake of the 2001 anthrax attacks. Professors Lawrence Gostin and James Hodge have argued that this Act is justified by a new model of information sharing for medical information. Our article concludes that public health concerns are appropriately addressed by the current HIPAA rule, and that a model of information sharing sends precisely the wrong signal about how the health system will handle issues of data and security. More generally, the article analyzes situations of vs. privacy, where the two values are antagonistic, and situations of and privacy, where the two values work together. Security in some instances means greater surveillance, information gathering, and information sharing. For instance, law enforcement can monitor the online movements of hackers or hospitals can more quickly report cases of anthrax infection. These situations of vs. privacy are defined as instances where security is promoted by getting information to the proper decisionmakers. As these information flows increase, decreases. By contrast, security measures often promote privacy. Good security is one of the standard fair information practices, because otherwise any hacker can get into a sensitive database. Good security, moreover, creates audit trails about which authorized users have accessed particular systems or data. Such auditing mechanisms promote the fair information practice of accountability, by deterring wrongdoing and making enforcement more effective. Finally, the authors explain how the most cost-effective and thorough implementation of occurs at the time of a computer system overhaul. This approach is fundamental to HIPAA, which provided that and security protections should be built at the same time as the shift to electronic health records. The new emphasis on security after September 11, in short, is a major strategic opportunity to improve data handling practices in general, for both security and privacy.

When terrorism threatens health: how far are limitations on human rights justified.

A single defining question perennially intrigues scholars and practitioners interested in public heath: To what extent should human rights be limited to protect the community’s health and safety? The question achieved prominence in the aftermath of the attacks on the World Trade Center and Pentagon on September 11, 2001 and with the intentional dispersal of anthrax spores through the U.S. Postal Systein. The conflict between security and public health intensified with the development of the Model State Emergency Health Powers Act (“Model Act”), drafted by the Center for Law and the Public’s Health at the request of the Centers for Disease Control and Prevention. The Model Act grants states consiclernble powers to control persons and property in response to a public health emergency, defined to inclucle bioterrorism or the appearance of novel or previously controlled or eradicated infectious agents or biological toxins.

The Model State Emergency Health Powers Act: Public Health and Civil Liberties in a Time of Terrorism

The balance between individual interests and common goods needs to be recalibrated in an age of terrorism. Public health agencies should have a robust infrastructure to conduct essential public health services at a level of performance that matches evolving threats to the health. This includes a well-trained workforce, electronic information, surveillance, and laboratory capacity. Public health preparedness also requires a sound legal infrastructure. This article presents and defends the provisions of the Model Emergency Health Powers Act (MSEHPA). The Center for Law and the Public's Health at the request of the U.S. Centers for Disease Control and Prevention (CDC) and in collaboration with governors, legislators, attorneys general, and public health officials wrote the MSEHPA. First, this article explains the provisions of MSEHPA. The MSEHPA has been adopted in whole or part in 20 states and the District of Columbia. Second, this article shows why extant public health laws provide a weak foundation for public health practice. They are obsolete, inconsistent, and inadequate from a public health and civil liberties perspective. State legislation does not facilitate, and may even impede, all of the critical variables for public health preparedness. Finally, the article offers a systematic defense of MSEHPA. The Model Act has galvanized the public debate around the appropriate balance between public goods and individual rights. This defense shows how the Model Act creates strong public health powers, while safeguarding individual freedoms (adopting clearer standards and more rigorous procedures than existing statutes). In a country too tied to rights rhetoric, any law reform initiative that has the appearance of strengthening governmental authority is bound to travel in tumultuous political waters.

Public health law in an age of terrorism: rethinking individual rights and common goods.

The balance between individual interests and common goods needs to be recalibrated in an age of terrorism. Public health agencies should have a robust infrastructure to conduct essential public health services at a level of performance that matches evolving threats to the health of the public. This includes a well-trained workforce, electronic information, surveillance, and laboratory capacity. This paper explains modern efforts at public health law reform: a Model Public Health Statute and the Model State Emergency Health Powers Act (MSEHPA), which has been enacted wholly or in part by nineteen states and the District of Columbia. Next, the paper shows why existing public health laws provide a weak foundation for public health practice. Finally, the paper offers a systematic defense of MSEHPA, which has galvanized the public debate around the appropriate balance between public goods and individual rights.

Public health vs. civil liberties.

Following the terrorist attacks of 11 September, a Model State Emergency Health Powers Act was drafted to help legislatures update t heir legal infrastructure to deal with potential bioterrorist acts. A fierce debate ensued over provisions in the act that would lim it privacy, civil liberties and property rights. This debate, involving groups of varying p olitical and ideological viewpoints, thr ew into relief the enduring tension between the responsibility of the state to guard the public health and the need to protect indiv idual rights and freedoms.

The Model State Emergency Health Powers Act: planning for and response to bioterrorism and naturally occurring infectious diseases.

The Center for Law and the Public's Health at Georgetown and Johns Hopkins Universities drafted the Model State Emergency Health Powers Act (MSEHPA or Model Act) at the request of the Centers for Disease Control and Prevention. The Model Act provides state actors with the powers they need to detect and contain bioterrorism or a naturally occurring disease outbreak. Legislative bills based on the MSEHPA have been introduced in 34 states. Problems of obsolescence, inconsistency, and inadequacy may render current state laws ineffective or even counterproductive. State laws often date back to the early 20th century and have been built up in layers over the years. They frequently predate the vast changes in the public health sciences and constitutional law. The Model Act is structured to reflect 5 basic public health functions to be facilitated by law: (1) preparedness, comprehensive planning for a public health emergency; (2) surveillance, measures to detect and track public health emergencies; (3) management of property, ensuring adequate availability of vaccines, pharmaceuticals, and hospitals, as well as providing power to abate hazards to the public's health; (4) protection of persons, powers to compel vaccination, testing, treatment, isolation, and quarantine when clearly necessary; and (5) communication, providing clear and authoritative information to the public. The Model Act also contains a modernized, extensive set of principles and requirements to safeguard personal rights. Law can be a tool to improve public health preparedness. A constitutional democracy must balance the common good with respect for personal dignity, toleration of groups, and adherence to principles of justice.

Medical-Record Privacy May Suffer In Post-Terrorism Backlash

Back to table of contents Previous article Next article Government NewsFull AccessMedical-Record Privacy May Suffer In Post-Terrorism BacklashKate MulliganKate MulliganSearch for more papers by this authorPublished Online:4 Jan 2002https://doi.org/10.1176/pn.37.1.0001aAt first, almost no one noticed the latest threat to the privacy of medical records. The country itself had been attacked the previous month, and the privacy challenge was put into a section about access to business records in the U.S.A. Patriot Act of 2001 (HR 3163), which was signed by President Bush on October 25, 2001.Section 215 stipulates that the director (or an agent) of the Federal Bureau of Investigation (FBI) can apply to a judge for an order requiring the production of “any tangible things” needed “to protect against international terrorism or clandestine intelligence activities. . . .”During the debate on the Senate floor, Sen. Russell Feingold (D-Wis.), the sole dissenting vote on the legislation, called the section “a truly breathtaking expansion of police power.” He said, “[I]n an ex parte application to a secret court, with no showing even that the information is relevant to the investigation, the government can lawfully compel a doctor or hospital to release medical records or a library to release circulation records.”The American Library Association (ALA), working with other specialized library associations, lobbied unsuccessfully for an amendment to the section that would provide greater protection for such records. The ALA is analyzing the possible effects of the law and has posted information on its Web site to help its members respond if records are requested.APA President-elect Paul Appelbaum, M.D., said, “Certainly we can explore with other interested groups ways the legislation could be modified. Perhaps its reach could be limited through the use of an executive order or regulations. As written, the law appears to allow the FBI access to medical records without even meeting the test of probable cause. It circumvents protections and procedures based on the 4th Amendment that have developed over hundreds of years.”APA is working to modify another legislative initiative that could affect the privacy of medical records. The Centers for Disease Control and Prevention (CDC) requested the Center for Law and the Public’s Health at Johns Hopkins and Georgetown universities to draft model state legislation that would expand the powers of public health authorities to respond to emergency health threats, such as bioterrorism.As currently written, the model act states that a governor may suspend legal procedures for conducting state business and also suspend orders, rules, and regulations affecting state agencies if compliance would hinder efforts to respond to the public health emergency.Jay Cutler, J.D., APA’s director of the Division of Government Relations, said, “We are supporting language that would protect psychiatrists’ medical records and psychotherapy notes in the event state privacy laws are suspended during a public health emergency. Any release of information about a patient must be based on the clinical judgment of a psychiatrist that there is a real and present danger to the public health.”Joy Pritts, senior counsel of the Health Privacy Project (HPP) at Georgetown University, said that HPP has additional concerns about the model act. The act would appear to allow the existence of any epidemic, such as HIV or hepatitis, to trigger the emergency powers vested in state authorities. She and HPP staff are also worried about lack of protections for the health information that would be collected by authorities during any emergency.A committee drafting the act is reviewing comments. A final version is expected by the end of the year.The Web site for the Health Privacy Project is www.healthprivacy.org. The Web site for the American Library Association is www.ala.org. The Model State Emergency Health Powers Act is posted at www.publichealthlaw.net. ▪ ISSUES NewArchived

The Model State Emergency Health Powers Act

The Model State Emergency Health Powers Act

The Model State Emergency Health Powers Act Transmittal Letter

The Model State Emergency Health Powers Act Transmittal Letter