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Younger generations of Americans have grown up in a society virtually free from polio and tuberculosis and, instead, have witnessed tremendous scientific breakthroughs such as the human genome project, laser surgery and miracle drugs. Our society has largely reaped the rewards of the preventive public health efforts of the 19th and early 20th centuries. When the public health system is successful, however, it becomes almost invisible and the public may fail to recognize its importance. Less dramatic, largely preventive, public health achievements are overshadowed by the development of new medical technologies and the need to finance them. Our current health care debate focuses less on responding to public health threats and more on insurance coverage and the financing and protection of government programs from waste, fraud and abuse. The events of Sept. 11, 2001, and the ongoing terrorist threat, however, re-established the importance of the nation’s public health system. Recognizing our vulnerability, not only to infectious disease outbreaks, but to intentional acts of bioterrorism, federal, state and local officials have started to address these problems. The legal issues that have surfaced with these efforts range from fundamental conflicts between individual rights and the protection of the public’s health, to the more mundane issues of who will be required to pay for the preparation for, and response to, a public health emergency. Historically, when infectious diseases threatened the survival of cities and towns, officials often called upon their police powers to stop the spread of the disease. In the 20th century, however, chronic diseases replaced infectious diseases as the top public health priority, and drastic measures such as quarantine and isolation were no longer common public health tools. Over the years, each state has enacted its own set of public health laws, many of which were enacted in response to specific diseases. The need for a thorough examination of states’ legal framework for responding to public health emergencies was apparent even before the terrorism concerns came to the forefront. The Centers for Disease Control and Prevention (CDC) collaborated with public health scholars to draft the Model State Emergency Health Powers Act, a comprehensive set of model public health laws. Although work on the model act had begun before the events of Sept. 11, the terrorist events in 2001 hastened efforts. An initial draft of the model act was released in October 2001, and a final version was released in December 2001. The model act consists of existing, exemplary state laws as well as newly drafted provisions that are consistent with modern jurisprudence. It is meant to assist states in assessing their current system of laws. The model act provides states with a plan for an emergency response and identifies key players and their responsibilities. Under the model act, governors have broad authority to declare a state of emergency and have exclusive power over access to all funds in the state treasury as necessary to respond to the emergency. Model act, � 8. Physicians and pharmacists must report unusual health events to the appropriate public health authorities (state law would define the primary public health agency for the state), and physicians must provide information to public health authorities regarding individual patients who show unusual symptoms. Public health officials can gain access to personal health records without obtaining a patient’s consent. They can use quarantine and isolation, mandate vaccinations and medical examinations and seize and control personal property and communications. Depending on a state’s specific needs, it could adopt all, part or none of the model act. A balancing act Drafters of the model act were faced with the difficult task of finding the appropriate balance between individual liberties and state power, in situations in which the public’s health is at stake. As the model act was considered by legislators across the country, the prevailing political sentiment in each state often dictated the compromise between public health and civil liberties. For example, in Iowa, Christian Scientists lobbied for religious exceptions under the state’s immunization law, but an exemption from immunization requirements would become null and void during times of emergency. Iowa Code � 641-7.3(2). Other states chose to enact only the less-aggressive provisions of the model act and modified others. For instance, Arizona excluded provisions that allowed the state to seize personal property or weapons and included detailed due process procedures that must be followed in order to implement a quarantine or isolation. Ariz. Rev. Stat. � 36-789. Although measures such as quarantine and isolation are not commonly used public health tools and would only be used in extreme situations, they are among the most controversial issues in bioterrorism preparedness. Quarantine and isolation both require the compromise of individual civil liberties for the sake of the public’s health, and since 2001, many states have re-examined these issues. Pennsylvania adopted the model act’s provisions that allow the governor to use isolation and quarantine temporarily without providing notice to a court. 35 Pa. Consol. Stat. Ann. � 2140.301(a). However, Pennsylvania’s law goes a step further than the model act and permits the use of temporary isolation and quarantine measures without the declaration of a disaster or emergency. For up to 10 days, the governor may institute a quarantine or isolation if there is an actual or suspected outbreak of a contagious disease due to an actual or suspected bioterrorist or biohazardous event. The Pennsylvania law removes many of the due process protections that are normally afforded in state use of quarantine and isolation, even those included in the model act. Montana, on the other hand, made only minor changes to its emergency response laws after the release of the model act. The state already had a very general statute that granted the state quarantine powers, but the statute provided little detail about the circumstances that would warrant the use of a quarantine, the length of time or due process protections. The Montana Legislature did not adopt any language from the model act, but simply added definitions of quarantine and isolation to its laws governing emergencies and extended its existing quarantine law to include quarantine “or isolation.” Mont. Code Ann. �� 50-1-101, 50-1-204. According to the Center for Law and the Public’s Health at Georgetown and Johns Hopkins universities, 44 states have introduced the model act in whole or part through bills or resolutions. Thirty-three states have passed bills or resolutions that include provisions from, or similar to, the model act. See Model State Public Health Laws, www.publichealthlaw.net/ Resources/Modellaws.htm for the text of the model act, a chart describing the status of state legislative activity relating to the model act, and general information on public health laws. This flurry of state legislative activity took place mostly in 2002. In 2003, fewer bills were introduced, and there appears to be even less state activity in 2004. Id. This phase-down of legislative activity does not mean that all 50 states now have comprehensive and effective laws in place to address public health emergencies; many still have a long way to go in developing sound legal infrastructure in preparation for a major disaster. Much work is left to be done, both in individual states and in assuring multistate cooperation. Funding issues The availability of funding for bioterrorism preparedness has also brought about change. On Jan. 10, 2002, Congress authorized $1.6 billion in grants to the 50 states and three cities (Chicago, Los Angeles and New York) for this purpose. 42 U.S.C. 247d-3A, 247d-3b. The increase in funding was meant to enhance national security with respect to bioterrorism, acute outbreaks of infectious disease and other public health emergencies. The legislation authorized specific activities and encouraged states and cities to use the money to develop statewide emergency plans; purchase or upgrade equipment, supplies or pharmaceuticals; develop trauma and burn centers; train public health workers; develop, enhance and coordinate disease-detection networks; prepare and plan for contamination efforts; and address the health security needs of children and other vulnerable populations with respect to bioterrorism and other public health emergencies. The CDC administers the majority of the grant funds for the broader goals of preparing for bioterrorism, infectious disease and public health emergencies. The remaining funds are administered by the Health Resources and Services Administration and are more narrowly focused on hospital preparedness. To ensure planning at the local level, states and eligible cities were required to submit a Bioterrorism and Other Public Health Emergency Preparedness and Response Plan. This detailed spending plan specifies how funds will be distributed and spent, including itemized lists of planned local agency equipment purchases. As part of the grant process, the CDC and Health Resources and Services Administration identified specific goals against which it would measure whether the grant funds successfully strengthened bioterrorism preparedness. In February 2004, the General Accounting Office (GAO) released a report that evaluated whether the federal bioterrorism grants had improved states’ emergency readiness and identified any factors that hindered implementation of programs. U.S. General Accounting Office, [Health and Human Services] Bioterrorism Preparedness Programs: States Reported Progress but Fell Short of Program Goals for 2002, GAO-04-360R (Washington Oct. 15, 2003) (available at www.gao.gov/atext/d04360r.txt). While all of the states reported some progress, none of the states met all of the goals set forth by the CDC or Health Resources and Services Administration. Very few of the states had developed a statewide emergency response plan or a regional response plan. Agency activities More recently, Congress created Project Bioshield to strengthen emergency preparedness. Bioshield provides new tools to improve medical countermeasures to protect the country against a chemical, biological, radiological or nuclear attack. 42 U.S.C. 319F-1, 319F-2, 510, 564. It will be a joint effort overseen by the U.S. Department of Health and Human Services and the U.S. Department of Homeland Security. The fiscal year 2004 appropriation for the Department of Homeland Security included $5.6 billion over 10 years for the purchase of countermeasures against anthrax and smallpox and other chemical, biological, radiological or nuclear agents. These countermeasures will include 75 million doses of an anthrax vaccine to become available for stockpiling beginning next year and a safer smallpox vaccine. The legislation also authorizes the secretary of health and human services to allow the distribution of drugs, biological products and devices for use in an actual or potential emergency, even if the Food and Drug Administration has not yet approved the product. The FDA has already begun preparing guidelines and procedures for implementing the emergency-use authorization. Voters have also recognized the need to strengthen emergency preparedness and have been willing to pay for these efforts. For example, on Nov. 5, 2002, Los Angeles County voters approved Measure B (Preservation of Trauma Centers and Emergency Medical Services; Bioterrorism Response), a special property tax to increase hospital bioterrorism preparedness in the county. Among other things, funds derived from the tax can be used to maintain trauma centers; stockpile safe and appropriate medicines to treat people affected by a bioterrorist or chemical attack; train health care workers and other emergency personnel to deal with the medical needs of those exposed to a bioterrorist or chemical attack; provide medical screenings and treatment for exposure to biological or chemical agents in the event of a bioterrorist attack; ensure the availability of mental health services in the event of a terrorist attack; and defray related administrative expenses. Consider health care of the poor All of these special funding programs have helped to strengthen the nation’s public health systems through the purchase of equipment and pharmaceuticals, maintaining emergency rooms and trauma centers and training public health workers. It has also become clear that ongoing funding for safety net providers-those that serve a disproportionately large number of the poor and the uninsured-is a critical element of emergency preparedness. In some states, public and university hospitals and clinic systems provide the backbone of the health care safety net. Other states serve this population through private entities. Because these providers are most likely to be called upon to respond to a public health emergency, it is important to ensure their continued financial viability. In addition, doctors are often the first to notice unusual disease patterns and are an important link in a state’s detection and containment efforts. The more quickly the authorities recognize a problem, the less chance the disease will spread. But this requires that people seek care for their initial symptoms, something that is less likely to occur among the poor and uninsured. For poor communities, safety-net hospitals and providers are often the only available health care. This group is also less capable of taking time off from work, making it more likely that the disease will spread to co-workers and others. Together, these factors make it more likely that a disease would spread more through a community that is medically underserved. A strong system of health care for the growing uninsured population will be a key factor in responding to a public health emergency. Many of these safety- net providers rely on governmental programs such as Medicaid to fund the care they provide to the indigent and uninsured. It is important to recognize and consider how funding (or lack of funding) of these programs can affect the ability of hospitals to respond to a terrorism-related public health care crisis. The complex issues in bioterrorism preparedness flow from the complexity of the general health care system. Even in peaceful times, health care is an interconnected maze of regulatory, funding, compliance and administrative issues. The time to construct laws and response plans is before an emergency occurs, not during or after a traumatic event. The best way to protect the country is for the public health community, legislators and attorneys to work together to coordinate surveillance and containment plans and to provide the resources to implement these plans. Denise Rios Rodriguez is a health law partner in the Los Angeles office of Foley & Lardner and advises clients on the complexities of federal, state and local health care funding. Krista L. Callaghan is a health law associate in the Los Angeles office of the firm, and holds a master’s degree in public health.

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