Legal and Public Policy Responses of States to Bioterrorism

Abstract

In late 2001, during the aftermath of the anthrax letter attacks, model legislation was proposed to relevant state agencies to update their states’ public health laws to meet the threat of bioterrorism. This legislation was the Model State Emergency Health Powers Act.

A concern underlying this and related efforts to address future bioterrorism threats was the perceived inadequacy of state laws to respond effectively when such threats occur. We evaluated how 4 states—Utah, Maine, South Dakota, and Indiana—addressed this concern in the context of the model legislation.

The conclusion is that the model legislation generally served as an important catalyst for state action in the field of bioterrorism preparation.

THE ANTHRAX ATTACKS IN the fall of 2001 raised the question of whether each level of government in the United States had adequate authority and resources to respond to future attacks. In the US defense against bioterrorism, state and local agencies will most likely be on the front lines because these levels have the primary responsibility for public health.1 The Center for Law and the Public’s Health at Georgetown and Johns Hopkins universities wrote model legislation for states seeking to update their laws relating to public health emergencies because these laws are arguably outdated.2 The Model State Emergency Health Powers Act (MSEHPA) highlights those powers the center found should be granted to states to detect and respond sufficiently to future bioterrorist attacks.

States received copies of the MSEHPA in late 2001, and many initiated legislative or administrative efforts to adopt part or all of its text.3 This study examines how 4 states—Utah, Maine, South Dakota, and Indiana—interpreted the MSEHPA to try to achieve the goals of effective bioterrorism detection and response. These states are in different regions of the country, and they addressed the challenges presented by the threat of bioterrorism differently. The general conclusion of this article is that the MSEHPA usually served as a catalyst for health care providers, law enforcement personnel, political leaders, and citizens at large to discuss how to improve their public health laws.

THE SUBSTANCE OF THE MSEHPA

The MSEHPA has 2 broad operational goals relevant to infectious disease—effective detection of the problem and effective response.4 In terms of detection, the MSEHPA places pharmacies, hospitals, and outpatient service providers on the front lines against bioterrorism. Before the MSEHPA, many states prevented private businesses like pharmacies from sharing information with health authorities and prohibited health authorities from sharing information with state police. The MSEHPA requires pharmacists who notice peculiar increases in specific medicines to contact state or local health authorities. If public health officials think it necessary, the pharmacist is even required to supply names and addresses of specific individuals. When public health authorities learn of a case they “reasonably believe” to be the result of bioterrorism, the MSEHPA directs them to inform public safety authorities immediately.

Once public health authorities detect a possible bioterrorist attack, they must then develop an effective response to the emergency. Under article II of the MSEHPA, states should already have coordinated their response measures to public health emergencies. After a governor declares a public health emergency, she may suspend any regulatory statute if strict compliance with such laws would “prevent, hinder or delay necessary action” to respond to the threat. The public health authorities coordinate the state’s response to the emergency, and the state legislature can terminate the state of public health emergency at any point.

One potentially controversial response measure is the isolation and quarantine of potentially infected individuals.5 The MSEHPA gives the state broad power to do so, on the condition that isolation and quarantine are the “least restrictive means” to prevent the spread of infectious disease. Failure to abide by the state’s directions in isolation or quarantine would constitute a misdemeanor. Additional response measures include mandatory vaccinations, and seizure of private property. At the same time, the MSEHPA guarantees affected individuals some due process to demand release from isolation or quarantine. Specifically, individuals can request a court hearing for the state to show cause for the isolation or quarantine or for affected individuals to argue that the state has breached conditions of the isolation or quarantine order.

Perhaps the foundational achievement of the MSEHPA is its articulation of how to balance social goals served by police powers with individual freedom. Absent such ex ante articulation, the state may quickly lose credibility and public trust after a bioterrorist attack and thus complicate efforts to mitigate the spread of infectious disease. For example, local officials in Muncie, Indiana, did not effectively communicate with citizens during a smallpox outbreak in 1893. Local officials sought quarantines, isolations, seizure of property, and mandatory vaccinations, but soon confronted violent resistance. More recently, the spread of severe acute respiratory syndrome (SARS) and the Chinese government’s response to the disease likely diminished public trust in that government.6 These experiences should encourage government leaders at all levels to discuss and develop effective detection and response strategies for bioterrorist and nonterrorist occurrences of infectious disease.

CASE STUDIES

The 4 states evaluated in this article present a useful comparison of how different states approach the same problem of the threat of bioterrorism. The Utah legislature addressed only detection issues, given the pressing need to prepare for the 2002 Winter Olympics in Salt Lake City. Maine largely ignored detection and focused instead on strengthening response powers. South Dakota also focused primarily on response in addition to clarifying jurisdictional issues between the state and county departments of health. Finally, confident in existing state powers to handle bioterrorist attacks, Indiana did not reform its public health laws.

Utah

After receiving the MSEHPA in late fall of 2001, Utah Department of Health officials decided to propose some reforms of the state’s public health laws. However, it was an open question whether the agency should pursue a comprehensive—yet lengthy and time-consuming—set of reforms or a more modest version. Although the state might have benefited from both detection and response reforms, Utah health officials ultimately pursued only detection reforms for 2 reasons. First, the agency had already missed the deadline for submitting bills to the legislature for its 2002 session. As a result, the agency was more dependent than usual on individual legislators to draft and promote legislation, and a comprehensive set of reforms would likely have been too ambitious an undertaking. The agency could either have waited for almost a year to submit a comprehensive version or support a more modest version immediately. Second, the Winter Olympics in February 2002 strongly encouraged officials to choose the latter. It was deemed better to have a partial set of reforms in place before this potential terrorist target than nothing.

Utah’s reforms focused on health care providers’ expedited reporting of relevant information and the appropriate dissemination of that information. Preexisting state law mandated that physicians, pharmacists, and hospitals immediately report selected diagnoses to public health officials. However, “immediate reporting” could take as long as 14 days after a diagnosis. Waiting for a firm diagnosis before reporting the patient’s conditions to public health authorities could worsen the bioterrorism attack’s potential impact.7 In addition to the mandatory reporting of diagnosed conditions, the changes authorized the voluntary reporting of syndromes and conditions. For example, pharmacists could report to the Department of Health that they had received an unusual number of requests for over-the-counter drugs. In addition, Utah followed the MSEHPA by authorizing public health officials to share information with law enforcement agencies.

Yet, the Department of Health and its allies in the legislature made several concessions to opponents. Originally, the department sought mandatory reporting conditions and syndromes. After several hospitals, pharmacists, and the Utah Medical Association argued that such extensive reporting requirements might pose serious administrative burdens on health care providers, the department agreed to the mandatory/voluntary distinction described previously. In response to concerns about individual privacy, the bill included a 2-year sunset provision and a clause mandating that the department must destroy any personal information within 180 days of its collection.

In the end, Utah did not change its quarantine laws or other response measures as part of this effort. The legislature had recently reformed these laws to help the Department of Health address cases of recalcitrant patients with tuberculosis or other infectious diseases. However, the new laws refer only to individuals, not groups, so it is unclear whether the Utah Department of Health has the full extent of quarantine authority envisioned in the MSEHPA. In terms of due process, the state is required to give quarantined individuals a hearing to determine the necessity of continuing such conditions within 10 business days. It is uncertain whether the state has the legal authority to mandate vaccinations for uncooperative individuals.

Maine

Unlike Utah, Maine focused primarily on bioterrorism response instead of detection. Maine already had some emergency powers, such as holding individuals for up to 48 hours for “public health purposes.” A court could order such holding even if the individual did not come to court. However, the legislature considered these powers inadequate to respond to a bioterrorist attack.

Maine accorded its public health department new powers that would come into effect only after the governor declared an “extreme public health emergency.” Powers granted to the public health department included taking “a person into custody and order[ing] prescribed care.”8 The term prescribed care was defined broadly to include isolation, quarantine, mandatory vaccination, and medical examination and treatment ordered by the department. This covers many of the “response” powers detailed in the MSEHPA, including controversial issues like mandatory vaccinations. Yet, Maine sought to balance a need for public protection with respect for individual rights. For example, although the MSEHPA allows 10 days of quarantine and isolation before the affected individual receives a hearing, Maine authorized only 48 hours before such judicial intervention. In addition, Maine’s law did not include the sections of the MSEHPA detailing how the state can handle the remains of infected or possibly infected individuals.

The Maine legislature did not address most detection issues to the extent envisioned in the MSEHPA. Maine law protecting personal health information would likely have conflicted with certain provisions in the MSEHPA. Specifically, legislators feared that a proposal to grant public health officials unrestricted access to individual-level health information regardless of the circumstances would encounter stiff political opposition. Instead, Maine allowed disclosure for the purpose of “protect[ing] the public health and welfare,” which could be interpreted as allowing health care providers to share information in aggregate form. In addition, after declaration of an extreme public health emergency, the public health department can demand individual-level information related to that emergency.

Despite these changes, some concerns remain regarding the capacity of the public health system in Maine to respond to any attack. In particular, Maine may have insufficient institutional capacity to handle such public health emergencies. Maine has no county public health departments, and the state’s 2002 application for Centers for Disease Control and Prevention (CDC) funds to augment the state’s bioterrorism response capabilities pointed to a Department of Justice/CDC survey indicating that “immediate attention” was needed in 49 of the 88 key public health essential service dimensions.9 This illustrates the need for many states to go beyond making only legal changes in enhancing community preparedness for bioterrorism and other public health emergencies.

South Dakota

The South Dakota legislature passed 2 bills in 2002 giving the governor several new powers to respond to bioterrorist attacks. One set of powers would come into effect after any “disaster, war, act of terrorism as defined by state law, or emergency that is beyond local government capability.”10 One of these powers is the governor’s ability to “procure, acquire, store, distribute and dispense” pharmaceutical agents within the state’s borders to respond to the event in question. This language is broader than the text of the MSEHPA, which would allow such actions only in times of a “shortage or threatened shortage” of pharmaceutical agents. Another key provision of the law is the ability of the governor to “appoint . . . out-of-state health care providers”11 to respond to bioterrorist attacks, presumably in case the local supply of such providers appears insufficient. This language derives from the MSEHPA, which specifies how long providers may be licensed and their liability protections for civil damages.

One overarching change is the clarification of the South Dakota Department of Health’s authority after the declaration of a public health emergency. Legislators and public health officials feared that time-consuming disputes between state and county health officials over each level’s powers would occur. The legislature amended South Dakota laws relating to the emergency powers of both levels of the public health infrastructure and declared that the state shall have the “primary jurisdiction, responsibility, and authority for responding to a public health emergency.”12 Yet, there are some areas the South Dakota bills do not address. Specifically, state law already mandated reporting infectious diseases such as tuberculosis, and legislators did not seek to grant the state power to mandate vaccinations of individuals.

Indiana

Although many states reformed their laws regarding public health emergencies to detect or better respond to bioterrorist attacks, the Indiana legislature and public health officials believed they already had enough authority to respond to these situations. The Indiana legislature had already sought to balance the individual’s interest in keeping health information confidential with the state’s need to detect emerging infectious diseases quickly, regardless of whether these diseases were part of a bioterrorist attack. Usually, under Indiana state law, individual health information is confidential, and any person who violates this confidentiality is guilty of a misdemeanor. However, physicians and hospitals must report certain communicable disease information to the health department, and the department may track this information to respond effectively to these public health threats. These provisions may provide an adequate foundation for the detection of a bioterrorist attack, but the state could still reform its existing law and bolster improvements in public health. For example, Indiana could take steps similar to Utah’s in monitoring the frequency with which health care providers actually report communicable diseases.

In terms of response, Indiana law grants significant emergency power to the public health commissioner, not the governor. In particular, the commissioner has the right to “establish quarantine[s] and may do what is reasonable and necessary for the prevention and suppression of disease.” Another broad power granted to the commissioner is the “right to issue an order condemning or abating conditions causative of disease.”13 Unlike the MSEHPA, Indiana law does not specify what due process a quarantined individual has.

CONCLUSION

All the states in this study considered the MSEHPA, but each eventually approached concerns about bioterrorism differently. Multiple factors—including the states’ political dynamics, social characteristics, and existing legal frameworks—likely shaped these approaches. Although these states did not provide the consistency sought by the Center for Law and the Public’s Health, their efforts still addressed some critical needs regarding bioterrorism detection and response.14

Study of this issue sheds light on the interaction between law and public policy in solving a complex and contemporary national, state, and local problem—bioterrorist attacks on civilian populations. Consistent and clarified law that minimizes time-consuming lawsuits in the event of a crisis is 1 aspect of a solution to this problem. Building on efforts to update their laws, states and localities should now direct their attention, other aspects—including funding and personnel.15