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A model law designed to prepare states to deal with bioterrorism is making headway in state legislatures, despite concerns by civil liberties and health groups. More than a third of the states have enacted parts of the controversial model law, which is designed to update public health laws and enhance the emergency powers of state officials. The act or some version of it has been introduced in 36 states since last December. Of that number, 18 states and the District of Columbia have enacted some of it, according to its drafters at the Center for Law and the Public’s Health at Georgetown and Johns Hopkins universities. That tally corresponds closely to tracking done by the National Conference of State Legislatures and by the American Legislative Exchange Council, a conservative civil liberties group that opposes parts of the model act. The Emergency Health Powers Act, as it’s called, was drafted last year at the behest of the federal Centers for Disease Control and Prevention in an effort to help states examine their own public health emergency preparedness. Its provisions would give public health officials the power to test, treat, vaccinate or quarantine individuals on a compulsory basis when there is a threat to the public health. State officials would have broad emergency powers to confiscate property and facilities, such as subways and pharmaceutical companies. Most of the most populous states, including New York, California and Illinois, haven’t embraced the model act. But those states’ lawmakers, and others, have introduced legislation that could pass in the next session. Backers of the law are expressing satisfaction with its progress. BACKER IS ‘ECSTATIC’ “We would anticipate additional legislative activity in the upcoming year,” says James G. Hodge, project director at the health law center. “North Carolina, Pennsylvania, Texas and potentially California, are moving in that direction. “In a nutshell, we’re ecstatic about how the model act is being used.” The next legislative year will be “very telling,” says Sandy Liddy Bourne of the American Legislative Exchange Council, who has criticized the model act as putting “a stranglehold on our civil liberties. “Last year’s activity was based upon a knee-jerk reaction to Sept. 11,” she says. “Some of those Northeastern states just ran with it and didn’t take time to think. Florida was in the heat of the anthrax scare, and they moved quickly on it. But states where you thought it would have flown through, like California, it didn’t. The hospital associations stopped it cold there.” States now should be able to take more time “to review their laws and to see what kinds of things they can do, with an eye toward not restricting civil liberties,” says Bourne. Hodge and other state government experts say planning for germ-war terrorism is under way in many states. “These are not going to be popular measures, but necessary ones,” Hodge says. Only a handful of states have adopted the model act largely intact: Maine, Hawaii and Delaware, in addition to the District of Columbia. Cheryl Runyon of the National Conference of State Legislatures says, “States don’t take model acts, photocopy them and put them in statutes. They tweak them. When we do any sort of model legislation ourselves, we try to offer as many options as possible so that we can ask, looking at what budget constraints are for a state, ‘Do you want the Chevrolet version or Cadillac version?’” States tend to use the Emergency Health Powers Act as a “kind of checklist” against their current statutes to determine what gaps need to be filled, says John Tomasian, director of the National Governors Association’s Center for Best Practices. Virginia, for example, enacted a law requiring physicians and lab directors to report diseases that could be caused by terrorism within 24 hours of diagnosis or identification. New Mexico’s law allows public health authorities to quarantine individuals infected with a “threatening communicable disease.” Alabama, via executive order, established an Office of Homeland Security for Alabama and the Alabama Defense Security Council. The order includes a directive that state preparedness efforts be coordinated. In some states, the legislation was introduced but was rejected or made little progress. Hodge says organizational issues raised some obstacles in states. “For example,” he says, “in Nebraska, a bill was introduced almost verbatim from the model law, but it got no farther than committee. One of the principal issues there is they have a strong department of emergency management. Our bill sees the public health department playing a strong role. You have a political struggle there, with departments watching their own turf and protecting responsibilities.” Some bills didn’t get through the sessions only because time ran out when lawmakers got stuck on state budget problems and deficits, he says. “We also saw — and this was the least dominant reason — some active resistance from libertarian groups or private industry health care sectors who might have worried about the full extent of powers granted,” says Hodge. “I don’t think, to be perfectly honest, that there was any state I can point to and say those entities really killed a bill, with the possible exception of California. There was a strong lobbying effort by hospital groups there. But California is not done. A bill will come back.” A major issue in the legislatures, says the National Conference of State Legislatures’ Runyon, is how much power to give to the executive branch “and after that, what kind of oversight do state legislatures have?” Quarantines and mandatory vaccination have been controversial issues, she adds. Tomasian agrees, saying some states viewed them as draconian. VETO IN RHODE ISLAND Gov. Lincoln Almond of Rhode Island vetoed two bills based on the model law in a process that included several of the issues mentioned by Hodge. “We started out with the model act, which everybody had problems with,” says Suzanne Henseler, the Rhode Island House majority whip and the chief sponsor of the legislation. “We concentrated on the emergency health power portion of the act.” The proposal was introduced in February but didn’t move to the floor until the closing days of the session. In the interim, she says, lawmakers worked with the National Rifle Association, which was concerned about Second Amendment freedoms; the pharmaceutical industry, which worried about liability; the AFL-CIO, which thought the definition of terrorism could include violence on a picket line; the state departments of health and emergency management, which sought to protect their turfs; and the American Civil Liberties Union (ACLU), which was the bill’s primary opponent. The Rhode Island chapter of the ACLU had “literally pages of concerns and presented dozens of amendments,” says its director, Steve Brown. “There were very substantial due process and privacy concerns,” he says. “All of the due process issues were associated with quarantine and isolation — some of which did get addressed by amendments. We were successful with amendments to eliminate wide-scale dissemination and reporting of pharmacy information. But provisions authorizing dissemination without consent of medical record information were still in there.” The governor ultimately vetoed the bills “for the wrong reasons,” says Brown. “He may be the only person in the country who believed this bill provided too much due process,” Brown says. “But we were very pleased he vetoed it even if it was for the wrong reasons.” Almond’s veto message said that he rejected it at the request of the state health department because in some cases it weakened existing law. For instance, he criticized a provision requiring a court order to quarantine a person. “Instead of fighting bioterrorism, this bill would require the department to use its limited resources to obtain court orders and attend hearings,” he said. Henseler, a Democrat, says she thinks that political concerns were involved. “I’ve had a running battle with the governor over a container port in my district,” she says. “We’re also having a running debate with the executive over separation of powers. The bill was a victim of politics. There was a problem with its sponsor — me.” Henseler predicts a new bill will be introduced in the next session. “To be honest, I don’t think we are prepared for a bioterrorist attack,” she says. “Right now, we can’t even communicate with the entire state.” In Maryland, where the ACLU again led the initial opposition, the ending was very different. A sympathetic governor and legislature worked to improve the civil liberties protections, says Maryland ACLU attorney David Rocah. “We got in a provision prohibiting employers from discharging an employee who is in quarantine, which wasn’t even in the model act,” he says. “The privacy protections essentially incorporate Maryland’s existing medical record privacy protections, and they’re pretty good. We put in judicial review which wasn’t there — not judicial review of a declaration of emergency but over quarantine or isolation orders, which I think is constitutionally required.” The ACLU has never opposed the model act nor objected to states updating their public health laws or planning a response to bioterrorism, he and other ACLU officials say. It has opposed the lack of civil-liberties protections in the model law. The states today are in a better position than a year ago to respond to a bioterrorist attack because of the recent legislative activity, say Hodge and others. “There are no questions in their minds about what powers they have, although there may be questions about how to interpret those powers or how to administer them,” says Hodge. “Most states have gone a long way toward answering those questions.”

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