Transforming Public Health Law: The Turning Point Model State Public Health Act

Law is an essential tool for improving public health infrastructure and outcomes; however, existing state statutory public health laws may be insufficient. Built over decades in response to various diseases/conditions, public health laws are antiquated, divergent, and confusing. The Turning Point Public Health Statute Modernization National Collaborative addressed the need for public health law reform by producing a comprehensive model state act. The Act provides scientifically, ethically, and legally sound provisions on public health infrastructure, powers, duties, and practice. This article examines (1) how statutory law can be a tool for improving the public's health, (2) existing needs for public health law reform, (3) themes and provisions of the Turning Point Act, and (4) how it is being used by public health practitioners.     

The Hermeneutics of Jurisdiction in a Public Health Emergency in Canada

This paper investigates the state of the law in Canada in regards to a public health emergency, and in particular the jurisdictional logic that might come into effect were a public health emergency to occur. Although there has yet to be a national public health emergency in Canada, threats of such crises are likely to arise in the future. It is therefore recognised as necessary to address Canada’s legal preparedness for a public health emergency and evaluate proposed reforms to the legal structure that could facilitate response. This paper contributes to this goal by identifying multiple jurisdictional factors that could inform legal interpretations in a public health emergency. It considers how the legal system and the courts are dealing with public health as a national security issue (political and collective matter) while taking into account s. 7 of the Canadian Charter (individual rights). It also looks at the power of the government defined in the Emergencies Act [1985, c. 22] and a proposed legal reform that would make it easier for the government to act unilaterally in a public health emergency. The paper draws on the legal theory of Robert Cover to analyse the hermeneutics of jurisdiction that characterise legal interpretations of public health in Canada, as well as the relationship between jurisdiction and legal violence that these hermeneutics imply. It then develops a case study of the use of medical triage in a public health emergency to explore the possibility of holding the state liable under private law for harm caused to individuals by public health decisions. The paper concludes by suggesting that the state’s public health power can be conceptualised as a form of legal violence and that the courts in Canada should adopt a jurisgenerative approach to legal interpretation in the area of public health.     

The law and the public's health: a study of infectious disease law in the United States

Law plays crucial roles in the field of public health, from defining the power and jurisdiction of health agencies, to influencing the social norms that shape individual behavior. Despite its importance, public health law has been neglected. Over a decade ago, the Institute of Medicine issued a report lamenting the state of public health administration, generally, and calling, in particular, for a revision of public health statutes. The Article examines the current state of public health law. To help create the conditions in which people can be healthy, public health law must reflect an understanding of how public health agencies work to promote health, as well as the political and social contexts in which these agencies operate. The authors first discuss three prevailing ways in which the determinants of health are conceptualized, and the political and social problems each model tends to create for public health efforts. The analysis then turns to the core functions of public health, emphasizing how law furthers public health work. The Article reports the results of a fifty-state survey of communicable disease control law, revealing that few states have systematically reformed their laws to reflect contemporary medical and legal developments. The Article concludes with specific guidelines for law reform.     

Expanding dependent coverage for young adults: lessons from state initiatives

The Patient Protection and Affordable Care Act (ACA) requires that adults up to age twenty-six be permitted to enroll as dependents on their parents' health plans. This article examines the experiences of states that enacted dependent expansion laws. Drawing on public information from thirty-one enacting states and case studies of four diverse reform states, it derives lessons that are pertinent to the implementation of this ACA provision. Dependent coverage laws vary across the states, but most impose residency, marital status, and other restrictions. The federal Employee Retirement Income Security Act further limits the reach of state laws. Eligibility for expanded coverage under the ACA is much broader. Rules in some states requiring or allowing separate premiums for adult dependents may also discourage enrollment compared with rules in other states (and the ACA), where these costs must be factored into family premiums. Business opposition in some states led to more restrictive regulations, especially for how premiums are charged, which in turn raised greater implementation challenges. Case study states did not report substantial young adult dependent coverage take-up, but early enrollment experience under ACA appears to be more positive. Long-term questions remain about the implications of this policy for risk pooling and the distribution of premium costs.     

Bioterrorism meets privacy: an analysis of the Model State Emergency Health Powers Act and the HIPAA privacy rule

Ms. Bruce's paper analyzes the interplay between the Model State Emergency Health Powers Act and the HIPAA Privacy Rule. The article begins by examining specific relevant provisions of the Act and Rule. Next, it traces the history of public health law through the court system and then uses this foundation to discuss how the Model State Emergency Health Powers Act and the HIPAA Privacy Rule could co-exist, protecting Americans in the case of a bioterror attack, while being appropriately sensitive to the confidentiality of private health information.     

美国反托拉斯法生成进路研究——以规制铁路公司垄断为线索

19世纪下半叶是美国反托拉斯法生成的重要时期。这一时期铁路公司垄断成为社会普遍关注的焦点。面对此,联邦和州采取了不同的措施,其中州承担了反铁路公司垄断的主要任务,初步形成了州反托拉斯法的制度框架,为联邦反托拉斯法的生成奠定了基础。在这一历史进程中,对公用事业垄断的规制、州反托拉斯法的建设以及《谢尔曼法》背后利益的关注,构成了解读反托拉斯法生成进路的三个结点。     

Medical Marijuana Registries: A Painful Choice?

Though the medical use of marijuana is legal in thirty-three states, it remains illegal under the federal Controlled Substances Act. Any marijuana use can subject individuals to severe criminal and civil penalties under federal law. States that condition patient access and treatment on registration in a state database impose real risks on their citizens. Although many scholars have written about the tension between federal and state treatment of marijuana, this is the first article to examine marijuana patient registry privacy and fundamental rights issues. This article first reviews the relationship between marijuana use and patient treatment, with a focus on health-care and privacy rights under state and federal law. The article then explains how marijuana registries compare to broader patient registries, such as contagious disease and other medical condition patient registries, and the unique issues presented by marijuana patient registries. It then discusses the elevated risk to constitutional, privacy, and fundamental rights that may result if states do not carefully construct marijuana registries. The article concludes by proposing principles for how both states and dispensaries should approach marijuana registries in order to provide health benefits and avoid harm to patients.     

Differential effectiveness in patient protection laws: what are the causes? An example from the drive-through delivery laws

In the mid-1990s, many states as well as the federal government began to regulate early postpartum hospital discharge. Length-of-stay patterns changed markedly in response, but effects were much greater in some states than others. In particular, laws directly empowering patients appeared more effective than laws requiring providers to follow practice guidelines. In addition, the effectiveness of regulation could potentially be influenced by state environment, such as managed care penetration as well as exposure to media attention and public pressure on the issue, though these factors alone were insufficient to cause general behavior change. Furthermore, the 1996 federal law had little effect beyond state laws, suggesting that it did not provide substantial benefits to women in self-insured plans exempted from state law regulation by the Employee Retirement Income Security Act. Findings from this study could provide lessons for similar patient protection initiatives.     

Modernizing Medicaid eligibility criteria for children with significant disabilities: moving from a disabling to an enabling paradigm

Children with significant disabilities may qualify for Medicaid benefits, regardless of household income, if their state elects to offer the Tax Equity Fiscal Responsibility Act (TEFRA) option. However, a significant number of children with serious medical problems presently are being denied eligibility for, or terminated from, this Medicaid program. This Article describes the ways in which the existing health insurance system inadequately meets the needs of children with significant disabilities, recounts the history and development of the TEFRA Medicaid coverage option, and analyzes the eligibility criteria used by the various states. It proceeds to consider how disability should be legally defined in the health care context and proposes reforms to modernize the eligibility standards so that these benefits can be more effectively, efficiently, and fairly allocated. To accomplish this goal, the federal statute and regulation that define disability, as well as corresponding state laws, must be reformed so that the law can keep pace with advances in modern medical science, and people with disabilities are not, in effect, penalized for receiving currently accepted preventative care that maintains health but will never cure the underlying disease.     

The role of law in public health preparedness: opportunities and challenges

We report the results of a study designed to assess and evaluate how the law shapes the public health system's preparedness activities. Based on 144 qualitative interviews conducted in nine states, we used a model that compared the objective legal environment with how practitioners perceived the laws. Most local public health and emergency management professionals relied on what they perceived the legal environment to be rather than on an adequate understanding of the objective legal requirements. Major reasons for the gap include the lack of legal training for local practitioners and the difficulty of obtaining clarification and consistent legal advice regarding public health preparedness. Narrowing the gap would most likely improve preparedness outcomes. We conclude that there are serious deficiencies in legal preparedness that can undermine effective responses to public health emergencies. Correcting the lack of legal knowledge, coupled with eliminating delays in resolving legal issues and questions during public health emergencies, could have measurable consequences on reducing morbidity and mortality.     

Case Baiting

In 2014, New Jersey passed the Sports Wagering Act, permitting sports betting at state casino and racetrack venues, in direct conflict with the federal Professional and Amateur Sports Protection Act. In 2017, South Dakota passed Senate Bill 106, requiring that certain e-commerce retailers collect and remit sales tax, in violation of federal law. The two U.S. Supreme Court decisions arising from challenges to these state statutes—South Dakota v. Wayfair and Murphy v. NCAA—exemplify U.S. Supreme Court “case baiting.” Case baiting is a tactic states implement to challenge federal directives by passing state legislation that directly conflicts with federal law to lure the Court into granting certiorari and ruling in their favor. This article argues that South Dakota's and New Jersey's triumphs pave the way for other jurisdictions to pursue similar strategies across multiple legal issues such as abortion restrictions and immigration law. In addition, this article suggests that case baiting invites further scholarly exploration of important policy considerations, including the use of this tactic as a novel approach to the application of law and strategy, whether case baiting promotes the Court's progression toward a more quasi-legislative role, and whether passing conflict legislation violates state legislators’ oaths of office.     

Organ Procurement and Transplantation Network; final rule revision of comment period and effective dates--HRSA. Extension of comment period and delay of effective date for the Organ Procurement and Transplantation Network

This document sets forth the revisions required by the Fiscal Year 1998 Supplemental Appropriations Act, Public Law 105-174, signed into law by the President on May 1, 1998. Section 4002 of that Act states that public comments on the Organ Procurement and Transplantation Network (OPTN) Final Rule are permitted until August 31, 1998, and that the OPTN rule will not become effective before October 1, 1998. This document is provided to notify the public about these provisions and to make corresponding changes to the regulation.     

Release of information from Department of Veterans Affairs records--VA. Proposed rule

This document proposes to amend Department of Veterans Affairs (VA) regulations governing the confidentiality and release of VA records subject to the Privacy Act, the Freedom of Information Act (FOIA) (including the Electronic Freedom of Information Act Amendments of 1996), and the veterans' records confidentiality statute. The proposed rule sets forth a mechanism for the public to obtain information from the VA. The proposed rule is intended to maximize public availability of VA records to the extent permitted by law and considerations such a personal privacy or law enforcement. Essentially these provisions consist of restatements of statute, interpretations of statute, interpretations of case law, interpretations of Executive Orders, and clarification. The proposed amendments also would implement the Electronic Freedom of Information Act Amendments of 1996, court decisions and Executive Branch guidance issued since the regulations were originally published. Further, this document proposes to delegate authority to the Assistant General Counsel for Professional Staff Group IV for making final Departmental decisions on appeals under the Freedom of Information Act, the Privacy Act, and 38 U.S.C. 5701 and 5705. This would simplify decision making by allowing the highest level individual with direct responsibility for decision making to issue decisions.     

Health care labor relations law--understanding the issues

The 1974 amendments to the Labor Management Relations Act have created new problems of statutory interpretation in the rapidly evolving area of health care labor law. By including nonprofit hospitals under the auspices of the Act, the amendments have opened up a new area for unionization and have given rise to questions concerning the types of bargaining units that are appropriate in health care facilities. In the following article, the authors discuss these questions and other current issues in health care labor relations law. The issues include the determination of relevant bargaining units, the status of state nursing associations as labor organizations, and the ten-day strike notice requirement of the Labor Management Relations Act.     

Construction of a policy arena: the case of public health in France

In this article we examine the transformation over the past two decades of public health as a policy arena in France from a backwater of little interest to politicians, bureaucrats, the media, and the public into a central preoccupation of the state. Recent dramatic health crises (the scandal over HIV-contaminated blood, mad cow disease, etc.) have substantially raised the political profile of (and corresponding state investment in) public health in France, offering opportunities and incentives for political actors not traditionally associated with public health to enter the field and challenging more traditional actors to galvanize themselves and compete for this newly attractive policy terrain. We use the occasion of the passage of a public health law in 2004, labeled by its proponents as the "first" public health law in one hundred years, to show how, in a context of national struggle to contain both risks and costs, "public health" -- chameleonlike -- has taken on various meanings and forms to serve highly conflicting political interests.     

评美国反基因歧视法律实践及其启示

为防治基因技术的滥用和基因信息歧视,以《2008年禁止基因信息歧视法》为代表的美国联邦和州立法积极实施干预,以确保所有人雇佣机会平等、享有平等健康保险待遇,全面参与社会生活.美国反基因歧视法内容详尽,既禁止基因信息歧视行为,又兼顾保险公司、雇主的合理要求以及避免可能给第三人及公众带来的风险,使违法行为几乎“无缝隙可钻”,且法律对公立雇主的要求高于私立雇主.美国反基因歧视法律实践,对于我们客观认识和把握平等权,完善相关立法和公共政策,具有一定启迪.     

The negligence of prison authorities and the protection of prisoner’s rights

This article looks at the potential for legal action brought by prisoners (and their dependants) who have suffered from the alleged neglect of the prison authorities. The article will examine the case law in this area to assess the success of prisoners’ negligence claims and whether such claims are unduly fettered by judicial attitudes and other more practical issues such as the difficulty in establishing a breach of duty. In particular the article will consider whether the law and its application has been, or should be, modified in the light of new obligations imposed on public authorities, including the courts, by the Human Rights Act 1998 and by the developing case law of the European Court of Human Rights in respect of Convention rights such as the right to life and freedom from inhuman and degrading treatment.     

The Family and Medical Leave Act--key provisions and potential problems

The recently enacted Family and Medical Leave Act requires larger employers to provide eligible employees with up to twelve weeks of unpaid leave for certain medical and family-related reasons. This article addresses who the law applies to; the circumstances when leave must be granted; how the leave period is supposed to be scheduled; various notice, scheduling, medical certification, and reporting requirements; reinstatement and continuation-of-benefits requirements; and other key provisions of the Act. The basic requirements of the Act are not complicated, but certain issues that are not addressed by the Act or its legislative history--such as what qualifies as a serious health condition justifying a leave, when an intermittent or reduced schedule leave may be taken and how such schedules are determined, and how differences with state family and medical leave laws are to be reconciled--will have to be resolved by administrative regulation or litigation.     

Investment Treaty Law and the Fear for Sovereignty: Transnational Challenges and Solutions

This article addresses the vagueness, and the interpretative challenges associated with, international investment agreements (IIAs) and develops a new normative framework for interpreting these treaties. It focuses on the historical embedding of investment protection as a means of facilitating economic development as well as upon its synthetic public law nature. The analysis shows that a teleological approach to interpretation imposes boundaries on the meaning of substantive IIA provisions. The article then elaborates how the transnational dimension of IIAs provides a benchmark, which is the level of protection offered to economic actors against interference by the state in countries with the highest rule of law standards. The article then shows how the resulting challenges of comparative public law could be addressed through the methodology of re‐ and pre‐statement of transnational uniform ‘principles’: sophisticated and detailed rules striking the proper balance between private economic interests and the public regulatory interest, so as to provide more legal certainty for both investors and host states.     

Through the Quarantine Looking Glass: Drug-Resistant Tuberculosis and Public Health Governance, Law, and Ethics

The incident in May-June 2007 involving a U.S. citizen traveling internationally while infected with drug-resistant tuberculosis involved the U.S. federal government's application of its quarantine and isolation powers. The incident and the isolation order raised numerous important issues for public health governance, law, and ethics. This article explores many of these issues by examining how the exercise of quarantine powers provides a powerful lens through which to understand how societies respond to and attempt to govern threats posed by dangerous, contagious pathogens. The article considers historical aspects of governmental power to quarantine and isolate individuals and groups; analyzes the current state of quarantine and isolation law in the United States in light of the recent incident with drug-resistant tuberculosis; and explores global aspects of public health governance and law highlighted by this incident.