Assembly Health Committee Holds Hearing in Manhattan
March 14, 2002 hearing re Model Emergency State Health Powers Act (MESHPA
- available at
www.publichealthlaw.net) and NY Public Health Law
Assembly Hearing Room, 19th Floor, 250 Broadway, New York City
Testimony presented before:
Richard N. Gottfried, Chair of NYS Assembly Committee on Health
Assemblyman Robin Schimminger
The hearing, as far as we legislative neophytes could tell, went better than expected. There seemed general agreement with
the opinion of Assmb. Gottfried that this bill should be carefully examined, not rushed, etc. He questioned quite a few government witnesses as to whether they had ever seen NY's Disaster Preparedness Plan (created under State Executive Law? Section 2B), which is supposed to be updated each year. They had never seen
it - nor had he. This underscored testimony of witnesses that the
coordination of services to deal with the emergencies being
considered, given NY's large population, number of counties, various authorities, numerous hospitals, regulations, etc.,
would be a formidable task indeed; however, a number testified that New York's present health laws were good and should be amended to address present realities and
threats - and that MESHPA was an over-reaction.
There were 20 scheduled to give testimony (3 or 4 were not present or had to leave before
they were called). The first speakers were officials who talked about current emergency preparedness. There were also representatives of professional groups: hospitals, nurses, physician's assistants, etc.
Several people expressed concern over possible violation of rights to privacy, punishment for refusal of treatment, etc. No one actually expressed an opposing opinion - all
appeared sensitive to the civil liberties questions/problems.
There were only two assemblymen present to hear the statements, Assm. Gottfried, Chair of the Health Committee, and Assm. Schimminger, sponsor of the Assembly bill (A9508). A pretty grueling day, with only a "5 to 10 minute break" at lunch time. Gottfried toughed it out to the end. Assmb. Schimminger was there for about five hours.
NYVIC thanks Assemblyman Gottfried, both for holding the
hearing and providing a transcript.
Don Berens, General Counsel, New York State Department of Health
Public needs to know there is a plan; some counties don't have a DOH; governor under MESHPA
would be required to consult with "commission" (?) before declaring emergency. Comments & Questions: Gottfried - so many commissioners, this would be unwieldy. Schimminger - can imagine differences of opinions re vaccination and quarantine between various counties/commissioners.
Victor Sidel, Public Health Association of New York City -
Concerned rights being taken, urged particular care "in these times" (US feeling threats) re proclamations giving power in "presumed crisis," wary of dangers in "turning on switch - many powers kicking in." Comments & Questions: Gottfried shares concerns. Schimminger having spoken earlier of apocalyptic scenarios, posed a few "what would happen if" questions. Sidel spoke of "circle" vaccination plan to address smallpox. "First responders" (health care providers), family and contacts of patient would be vaccinated, not mass vaccination (too risky).
Cynthia Laks, Coordinator of Legislation, Office of the Professions, State
Education Department and Lawrence Mokhiber, Executive Secretary for
Pharmacy and Midwifery -
Concerns re licensing of professionals (suggested using dentists, podiatrists, etc. instead of untrained people as first responders); need plan to identify first responders; concerns re violation of confidentiality.
Wilfredo Lopez, General Counsel, New York City Department of Health
Amend NY Public Health Law, rather than adopt MESHPA; too much attention to "responding," more attention needed re prevention and preparing.
James Hodge, Center for Law and the Public's Health, Johns Hopkins School
of Public Health -
Testified on the need for and evolution of the Model Act, said there were no compulsory requirements, that the section on "Protection of Persons," especially regarding vaccination and treatment, was one of the most controversial; emphasized that vaccination and treatment are "completely voluntary," and there are provisions for quarantine or isolation of those who refuse for any reason (he never mentioned how the first draft came to declare criminal the people who might refuse); it is unlikely there will be another draft. Questions & Comments: Is a state in a position to vaccinate children despite parental wishes? They (MESHPA drafters) defer to the states on that.
Excerpts from testimony
Dr. Michael Caldwell, New York State Association of County Health
Spoke to problems raised re acting quickly to isolate or quarantine while respecting/complying with civil rights/law; key role of local health officials; need to improve their performance; Medical Examiner system in bad shape, no quality assurance, many are elected officials (often operators of funeral homes) who, while not doing autopsies, select those who do; there is no State Medical Examiner.
Karen Ballard (?), New York State Nurses Association -
MESHPA not necessary in NY, rework present law; plans needed for coordinating (including volunteer nurses).
Robert Perry, New York Civil Liberties Union -
Act is too general as to definitions (emergency, novel diseases); need "explicit protections" re privacy; include only diseases that pose substantial risk to population; NY Constitution can't reassign powers from Legislature to Executive; questions re mandated testing procedures; vaccination arguably made compulsory by threat of quarantine; need judicial review for refusers (NY mental health law incorporates due process re quarantine); governor could suspend courts; public expectations -know ahead, have clear guidelines.
Andrew Schlafly, General Counsel for the Association of American Physicians and Surgeons
Schlafly was known to the Chair, had testified before him previously.
The presentation was very forceful and similar to one offered by Perry, focusing on possible unconstitutionality of this act (giving almost absolute power to governor or DOH for 60 days), slippery slope, etc.; medically based "emergency" could not be called off by Legislature once declared; reminded that, even in midst of latest Anthrax scare, few postal workers elected to be vaccinated, but had this been an emergency under MESHPA guidelines the governor might have required it; if drug companies have no liability there is no incentive to improve vaccines; dangers of quarantines to patients. Gottfried - "If anything (legislation) goes forward, I expect it to be a much modified version."
Bryna Eill (Disabled in Action) -
Dangers of smallpox vaccine and mass vaccination; '76 Swine Flu vaccination campaign was "a
Frank (testimony) and Martha
Fitzgerald (testimony), New Yorkers for Vaccination Information and
Concerns re dangers to democracy; quarantine; vaccines are experimental; informed choice; politicians unsuited to make health decisions; public
Arthur Weintraub, Healthcare Association of New York State
Catherine Hanssens, Lambda Legal Defense and Education Fund
Susan Waltman, Greater New York Hospital Association
Edward Chin, RPA-C, MPH, New York State Society of Physician Assistants
Return to NY State Emergency Health Powers Act
You can sign the petition to defeat the Emergency Health Powers Act now.