Testimony of James Hodge (Center for Law and the Public's Health)
March 14, 2002, 250 Broadway, NYC, Assembly Hearing Room, 19th Floor
Public Health Emergency Planning and Response and the Model Emergency State Health Powers Act
The following is excerpted from 48 pages of dialogue with Mr.
CHAIRMAN GOTTFRIED: I think we are going to reconvene. We are going to reconvene the hearing. James Hodge of Georgetown University will be our next witness.
JAMES HODGE, having been first duly sworn, was examined and testified as follows:
MR. HODGE: Mr. Gottfried, Mr. Schimminger, additional members of the Committee that may be joining us in addition to persons in the audience who have had the opportunity to listen in with us this afternoon. It's a pleasure to be able to join you. My name is James Hodge. I am the project director for the Center for Law and the Public's Health and Georgetown and Johns Hopkins Universities. I have just arrived from Baltimore today, and I apologize for my late arrival in that regard. I'm very delighted to be able to join you.
As the project director for the
Center, I was directly involved in the drafting of the Model State Emergency Health Powers Act together will colleagues, including Professor Larry Gostin at Georgetown Law Center, Professor Steve Tarret (phonetic) at the Johns Hopkins Bloomberg School of Public Health. So it's a very distinct pleasure to join you and to present as much as possible testimony, not so much on New York's version of the Model Act or the extent to which New York has utilized portions of it in Assembly bills or Senate bills introduced in this state, but rather to give you as much as possible a sense of the brief history of the Model State Emergency Health Powers Act, what the existing the existing status of the act is in various states, perhaps to give you the scope and perspective on that, basics of the Model Act with the opportunity as well for Committee members to ask any questions that they possibly may have on the content of the Act as drafted by our Committee, and as well a little bit of additional testimony on the New York State versions of the Model Act.
Article 3 deals with not responding to a public health emergency, but tracking one, essentially doing through reporting or other techniques, the essential public health activities of learning about, providing surveillance to, and otherwise tracking a potential or actual public health emergency, and these efforts are essential.
Article 4 does talk, and perhaps converts to, a more active stance in relation to an actual emergency. It talks about how a declaration of an emergency would occur. It provides that declaration power to a very high ranking government official, and in our case, the governor of a particular state. And it gives to the governor very limited powers in relation to how that declaration would be made and the role of the legislature and/or the courts in regards to how they may respond to that.
From there we have perhaps the most provisions controversial of the Model Act, that the ones that we as a committee also saw
as most necessary, again, in conjunction with the Cantini principles. The idea that during an emergency we will have to do things through public health to effectively manage property; be it, through condemnation of various property that poses some risk to the public health, be it to the creation of isolation or quarantine wards where necessary, and we have been allowed state government officials under our Model Act the provision of essentially managing private property and public property for the purposes of using it to respond to a public health emergency.
The provisions related to protection of persons are the most controversial. These are the ones where the balance between communal interests and protecting the public self and responding to potential individual civil liberties violations are the hardest to make. And yet we feel that the versions and the language that we have included in the 12/21 version the Act does create a very good reasonable balance. We authorize stat public health
authorities in conjunction with public safety authorities to implement vaccination programs, testing programs, treatment regimens, medical treatment, medical provisions, and otherwise, to a population, specifically individuals that are at risk from an actual contagent or otherwise during an emergency.
Perhaps one of the things that has been most controversial about the Model Act is the idea that these provisions, medical testing, vaccination programs and otherwise are somehow mandatory. In fact, they're not and there's nothing in the Model Act as of 12/21 which suggests that any particular individual would be forced to compel to participate in the vaccination program or otherwise. It is the isolation and quarantine provisions of the Model Act in this article that do raise perhaps the only issue mandatory nature. And yet, we again believe the language that you see in relation to the quarantine and isolation sections of this model act are perhaps as responsible as they can be for authorizing public health
authorities to do what they need to do during a very, very serious public health issue arising in a particular state, while also protecting the individual rights of persons who may be subject to quarantine or isolation.
We, for example, in our due process sections in this Model Act create protections that we think go well beyond what any existing state law does in regards to the quarantine or isolation provision in a time of emergency. So we believe that we've properly accommodated that balance, that the use of quarantine or isolation will be with very high respect for the dignity of individuals and only when necessary for the purposes of controlling a very serious public health threat. Various provisions on providing public information and/or some miscellaneous provisions on various different immunities are also provided.
CHAIRMAN GOTTFRIED: The last thing I want to ask about.
As I'm sure you are more aware than you would like, a lot of the discussion around legislation has surrounded the immunization question, and there are several people who will be testifying here that issue. Could you talk a little specifically immunization provisions in the bill.
MR. HODGE: Sure. The version of the Act as of 12/21/2001 does allow during a public health emergency for a public health authority to implement a mass vaccination program. This mass vaccination program is completely voluntary. And individual who may have been exposed to a contagious condition or infectious condition is in a position to be vaccinated or not be vaccinated. They can make that choice pursuant to our Model Act for
religious reasons, for philosophical reasons, or for any reason. We make it completely the choice of individuals, but in the Model Act do suggest that to the degree to which vaccination or immunization for a contagious condition could lead to making that individual non-contagious or curing the individual and not allowing them to essentially acquire the disease in that regard, they do pose no additional threat to the public's health, and there is no need to even think about quarantine or isolation of that individual.
We have to be cognizant that specifically in a bioterrorism event, and perhaps one involving smallpox or otherwise, that the potential that an individual who has been exposed and/or has smallpox could unintentionally or intentionally make him or herself publicly available and essentially potentially making others infected with the disease, there would be an opportunity the choice to be vaccinated or not is completely the choice of the individual. Perhaps, they're concerned about inherent risk, perhaps
they have religious objections, perhaps they just don't want to be vaccinated. That choice could lead to quarantine or isolation where needed to prevent some risk to the public's health, risk to others.
One issue that we don't address that has gotten some level controversy in and around the nation is the issue concerning the vaccination of children. We don't discuss that in the Model Act. We do defer to existing state law in regards to that. I think the most predominant issue that we've heard about in relation to that particular vane is, is a state in a position to vaccinate regardless of parental wishes, regardless of any additional issues. The reason for that may be an interpretation of state law that suggests that the state does have a more significant role and interest in providing for the best interests of children and during an emergency. It may be the case that providing and protecting children might require vaccination. We touch that issue in this Model Act, not
because we didn't want to, but because we're intentionally trying to defer to existing statutory provision in New York State and any other state that may deal with that specific issue.
That gives you an idea of how the Model Act interprets it, but I do want to suggest, just for the purposes of providing or sharing on this particular comment, that we have heard a lot of issues and we've gotten lot of commentary on that specific issue. Most of it does come down to giving individuals a free and full choice to make that vaccination decision or not. We allow for that in the Model Act. We do believe though that a public health authority would in a position to strongly recommend and/or really make it incumbent upon individuals to be vaccinated. That will be an individualist choice in various public health agencies. We incentivise individuals to be vaccinated through our Model Act by suggesting that it could be the way out of a quarantine or isolation sanction or provision. I do mention
the term "sanction" there, but I want to be very careful.
There is absolutely nothing about an individual in this Model Act that suggests that their contagent with the disease makes them a criminal, makes them subject to unnecessary state powers. Quarantine or isolation measures are not criminal measures. They are merely protective measures used throughout the history of this nation and throughout the history of public health for the purposes of protecting individuals not only that may be infected with the disease, but of course others outside of that.
I hope that provides some commentary in relation to that provision. It has been controversial in other jurisdictions, I can assure you..
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