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The federal government is urging states to update public health laws that are so antiquated, inconsistent and confusing that it’s feared they don’t provide the tools needed to respond to bioterrorism. A model state Emergency Health Powers Act drafted for the Centers for Disease Control and Prevention (CDC) has been written at the Center for Law and the Public’s Health at Georgetown University and Johns Hopkins University. Center Director Lawrence O. Gostin says it is designed to give officials the power to act decisively in the event of an attack or outbreak of new diseases. Officials could treat, vaccinate and quarantine individuals on a compulsory basis when there is a threat to the public health. States would have broad emergency powers to confiscate property and facilities, from subways to drug companies. Gostin says the law balances the public health need with respect for individual liberties. But that’s likely to be a source of considerable debate as it moves onto governors’ desks. One scholar, George Annas of Boston University School of Law, calls it “the old Soviet model of public health — lots of power and no standards for applying it.” But he agrees that current laws creak in their application to modern health threats and that the problem is exacerbated by a serious lack of resources. Peter D. Jacobson of the University of Michigan School of Public Health says, “No matter how well the law is drafted, if we don’t allocate adequate resources to prevention, detection and building a robust public health system with a high quality work force, the law won’t achieve its goals. We’ve been going in the wrong direction, and now we’re faced with the kind of problem that desperately needs a vibrant public health system.” A PATCHWORK OF LAWS Public health law has been written in stages for more than a century, says Gostin. “Much of it predates modern public health sciences and powers as well as the modern constitutional law of due process and equal protection,” he says. Some states, notably Michigan and Virginia, have strong laws, he says, but many don’t authorize actions that would be needed. “They would be subject to litigation, which is the last thing you want in an emergency,” he says. Gene W. Matthews, legal adviser to the CDC, says the main need is for consistency and modernization of state laws. “From the CDC’s viewpoint, it is not in anyone’s interest to have 50 states all running off in different directions on this,” he says. The model law would give states “a great deal of power” to track disease and share information, says Gostin. Some states outlaw sharing information among state agencies or even for one state to inform another state of a problem. During a health emergency, health officials would be able immediately to take over any materials or facilities “as may be reasonable and necessary” for emergency response — including the management of a health care facility and the rationing of medicine and other supplies if a shortage develops. They could compel a person to submit to a physical exam or test without a court order or be charged with a misdemeanor offense and face the possibility of forced isolation. Physicians and other health workers could be forced to do the testing or face criminal liability. Court orders would be required for quarantining someone, but faced with an immediate threat, officials could quarantine first and go to court afterward. The law sets forth a procedure for contesting court orders and for hearings on the need for continued isolation. Officials could compel people to be vaccinated or treated for infectious diseases, though not those likely to suffer serious harm from a vaccination. The law would shield officials and their agents from civil liability, except in cases of gross negligence or willful misconduct. The law would require states to pay compensation for the taking of private property by a public health authority unless the property was abandoned or destroyed because officials concluded it was dangerous. Annas, the Boston University critic, says that the law’s major problem is that it gives “tremendous powers to unnamed and unaccountable public health officials to order people examined, treated, vaccinated or quarantined and do it with immunity unless acting with willful malice. “You have to have clear standards if you’re going to force Americans to be diagnosed, treated or quarantined,” he says. “It’s hard to imagine the country this statute was written for. People don’t run away from medicine in this country, they run toward it.” The idea behind the model law effort is “right,” says Annas, but the problems are complicated and shouldn’t be addressed hastily. Michigan’s Jacobson calls the proposal an “excellent starting point” but says major questions remain: Can this and should this be done on a state-by-state basis? Will states pay for improved health systems? Has the public attitude toward government changed since Sept. 11? (“One of the reasons the public health system was allowed to atrophy was our general distrust of government,” he says.) Where will the money come from? John Tomasian, an official of the National Governors Association who was involved in writing the law, says, “It will be rare to see any state taking the model act and adopting it in total, but you will see a lot of states taking pieces or chunks to supplement their state powers.” “The CDC is not trying to tell states what to do here,” says Matthews. “We’re trying to come up with a mechanism to jump-start the process.”

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