Draft Model State Emergency Health Powers Act
Released for Consideration by States

By Melanie R. Margolis

The Centers for Disease Control and Prevention (CDC) is leading a collaborative effort to prepare a Model State Emergency Health Powers Act (Act). The current draft of the Act, dated October 23, 2001, is Web-accessible at http://www.publichealthlaw.net/MSEHPA/MSEHPA.pdf. The Act is intended to assist states considering new public health legislation. States may adopt any or all of the model legislation, or states may tailor the legislation to their own needs. The Health Law & Policy Institute has been asked by the Texas Legislature's House Public Health Committee to review the Act and compare it to existing Texas law. This article provides a brief overview of the Act and touches on some of the controversial issues it raises.

Some of the areas addressed in the Act include: reporting requirements relating to potential and existing public health emergency (PHE) situations; standards and procedures for declaring a state of PHE; control of property and persons during a PHE; dissemination of public information during a PHE; and planning for a PHE. One of the purposes of the Act is "[t]o provide state officials with the ability to prevent, detect, manage, and contain emergency health threats without unduly interfering with civil rights and liberties." § 103(f). Controversy is brewing over the Act's ability to accomplish this balance given that the Act grants state public health authorities broad powers to isolate and quarantine individuals and to make medical exams, tests, and treatment mandatory during a state of PHE. The Act has been criticized by some as being overly broad and failing to protect privacy. See, e.g., http://www.healthprivacy.org/usr_doc/Letter%20on%20model%20law%2Epdf.

Definition of PHE. For purposes of the Act, a PHE is defined as "an occurrence or imminent threat of an illness or health condition, caused by bioterrorism, epidemic or pandemic disease, or a novel and highly fatal infectious agent or biological toxin, that poses a substantial risk of a significant number of human fatalities or incidents of permanent or long-term disability." § 104(l). The definition also covers illnesses or health conditions caused by natural disaster. Id.

Reporting. The Act imposes various reporting requirements. § 201. Health care providers, coroners, medical examiners must report to the public health authority within 24 hours cases of persons with conditions that may have resulted from a PHE. § 201. Pharmacists must report unusual activities related to prescriptions and pharmacy visits. § 201(b). Veterinarians, livestock owners, veterinary diagnostic lab directors, and others involved in the care of animals must report any animals that have or are suspected of having any disease that may be the result of a PHE. § 201(d). The Act requires the state public health authority to verify the reported cases, investigate them for sources of infection, ensure proper control measures are taken, and define the distribution of the illness or health condition. § 202.

State of PHE. The governor may declare a state of PHE, which activates the disaster response and recovery efforts of state, local, and other disaster emergency plans and grants the governor special powers. § 303. The governor is granted special emergency powers in a state of PHE. During a state of PHE, the state public health authority may exercise control over property and persons.

Control of Property. The public health authority is granted the power to close, evacuate, or decontaminate any facility, or decontaminate or destroy any material that may endanger public health. § 401. To the extent the following are reasonable and necessary for emergency response, the public health authority is granted the power to: (1) procure (and take immediate possession of) materials and facilities; (2) compel health care facilities to provide services; and (3) control the use, distribution, or transportation of food, fuel, clothing, alcoholic beverages, firearms, explosives, and combustibles; and control roads and public areas. § 402. In addition, the public health authority is granted the power to safely dispose of infectious waste and to safely dispose of corpses. § 403-404.

The public health authority may purchase and distribute anti-toxins, serums, vaccines, antibiotics, and other pharmaceuticals and medical supplies to prepare for or to control a PHE without legislative authorization. § 405(a). Whether or not any such product was purchased by the public health authority, the authority may control, restrict, or regulate its use, sale, distribution, and transport as necessary to protect health. § 405(b). During a PHE, the public health authority has the right to take immediate possession of such products located within the state as reasonable and necessary for emergency response. § 405(c).

The state must pay just compensation for property appropriated by the public health authority for its temporary or permanent use, but the state will not pay compensation for facilities or materials closed, evacuated, decontaminated, or destroyed when there is reasonable cause to believe they may endanger public health. § 406. To the extent practicable and consistent with the protection of public health, the public health authority shall institute civil proceedings against property to be destroyed and any property acquired by the public health authority by such proceedings shall be disposed of as directed by the court. § 407.

Control of Persons. The public health authority is empowered to use every available means to control persons during a state of PHE and shall use all available means to prevent transmission of infectious diseases and ensure that all cases of infectious disease are under control and treated. § 501. The public health authority may compel a person to submit to, and a health care provider to perform, a physical examination and/or testing as necessary for diagnosis and treatment. § 502.

During a state of PHE, the public health authority may establish and maintain places of isolation and quarantine and may require isolation and quarantine of any person by the least restrictive means necessary to protect public health. § 503(a). The public health authority shall obtain a written ex parte order from a court authorizing isolation or quarantine prior to isolating or quarantining a person. If delay would pose an immediate threat, the public health authority may isolate or quarantine the person and then promptly obtain the court order. The isolated or quarantined person has a right to a hearing to contest the order. The person is also entitled to a hearing for remedies regarding his or her treatment and the terms and conditions of the quarantine or isolation. Id.

During a state of PHE, the public health authority may compel a person to be vaccinated or treated for an infectious disease. § 504. During a state of PHE, the public health authority may collect specimens and perform tests on any living or deceased person or animal and may acquire previously collected specimens or test results as reasonable and necessary for emergency response. § 505. During a state of PHE, the public health authority may appoint and prescribe the duties of out-of-state emergency health care providers as may be reasonable and necessary for an emergency response. § 507.

Privacy. Access to protected health information regarding patients under the public health authority's isolation, quarantine, or care is limited under the Act to persons with "a legitimate need to acquire the information for purposes of providing treatment or care to the individual who is the subject of the health information, conducting epidemiologic research, or investigating the cases of transmission." § 506(a). Such information may not be disclosed without individual specific informed consent with limited exceptions. § 506(b).

States are beginning to digest the Act. As they do, they must also examine their existing laws to determine whether these laws enable public health officials to adequately handle potential events of bioterrorism and other public health emergencies. During this process, the Act will certainly inspire great debate over the appropriate balance between public health and individual rights.