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1 Using Law, Policy and Research to Improve the Public s Health September 13 15, 2010 Skills Building in Public Health Law and Policy What a Lawyer Needs to Know Wilfredo Lopez
2 The Role of Counsel to a public health agency (NYC DOHMH) Legal advisor policy advice, legal opinions, draft regulations and contracts, comment on legislative and regulatory matters, prosecute violators at administrative proceedings Counsel to the Board of health Disciplinary counsel conflicts of interests, investigate and prosecute wrongdoing by employees Supervise an administrative tribunal to hear violations of the health code/health laws Supervise the Institutional Review Board
3 First understand the applicable body of law in the abstract Review the state statutory structure that establishes underlying authorities The powers, functions and duties of the state health department, the state health commissioner and the state board of health if there is one The jurisdictional statutes that enumerate particular areas of authority vital statistics, control of communicable and chronic disease, sanitary aspects of food and water supply The scope and purpose sections of these laws Appreciate the breadth and depth of public health authority *
4 Authorities include an array of police powers Rulemaking Permit issuance (restaurants, hospitals, etc.) Investigative subpoenas Issuance of orders Nuisance abatement t
5 A public health lawyer to a local health officer needs to understand how the local department fits into the state structure Is the local jurisdiction in a home rule state What authority has been delegated to the locality, department, board of health or health officer by the state structure Are there areas of state preemption What are the limits of the rulemaking authority
6 The perspective gained from understanding the expanse and limitations of authority can then be applied to particular situations that may come up Having a good understanding of how broad and fundamental public health h authority and jurisdiction is, will enable the lawyer to be most helpful to the client health officer and practitioners Programs caught up in day to day necessary activities will sometimes think they cannot act to address a new or different problem unless a new law is passed A knowledgeable lawyer can often say we have authority, now tell me what the desired intervention is and we can go from there
7 Regarding rulemaking by a board of health, having a sense of where the line is between a board of health and a state or local legislature is crucial Can you be stricter that a state statute or regulation? Typically, yes If a rule applies to some but not others, does the basis for the distinction need to be purely health based, operationally based? * Can they be economically based, or are such distinctions more the province of a legislature?
8 A public health lawyer should understand the basic science underlying a particular intervention Communication between lawyer and practitioner is key The practitioner should explain the medical, scientific or programmatic realities of a particular situation ti to the lawyer in relatively l simple terms The lawyer will then be able to articulate the rational basis underlying an intervention to other lawyers (e.g., opposing or litigating counsel), the courts or legislature*
9 A public health lawyer does not need to be able to explain why one virus (HIV) is sexually transmissible while another (WNV) is not But she or he needs to understand that not all communicable diseases are contagious from person to person That different modes of disease transmission (airborne, intimate person to person contact, animal or insect vectors) are closely linked to the kinds of interventions that will be sustained as rational
10 A Public health practitioner needs to understand the fundamentals of legal principles; not necessarily the nuances, but the basics The lawyer should be able to explain the rationale for a legal position in plain English to the practitioner The basics of equal protection, selective prosecution, preemption, jurisdictional boundaries of authority Most practitioners enjoy learning about the laws and legal principles p that determine what they can do and how they can do it Law is not just for lawyers*
11 Case Study 1 Communicable Disease -- TB Control in NYC Surveillance - detect problem of drug resistance Education the Executive, clinicians, media, public (balance a harsh reality and undue panic/fear) Convene governmental and private sector stakeholders (Corrections, Homeless Services, Corporation Counsel, OMB, legislature, public and private hospitals) Obtain funding for necessary infectious and non- infectious quarantine facilities Amend Health Code to clarify legal authority consistent with constitutional principles Practitioner skills scientist, communicator, lawyer, budgeteer * Lawyer skills effectively communicate with Corporation Counsel and the courts that public health is preventive *
12 Case Study 2 Chronic Disease, Diabetes A1C Reporting Diabetes epidemic Need for data and surveillance Authority was there NYC DOHMH did not regulate clinical laboratories, but it could require laboratories to report communicable and chronic conditions Skills - knowledge of the extent of authority and jurisdiction, and good communication between practitioner and Counsel *
13 Case Study 3 Public Health Nuisance Lead abatement local laws and health code are very specific about shared powers and duties between the health and housing departments including actual abatement by government of lead hazards Mold laws are not so clear; is all mold dangerous to life or detrimental to health (i.e., a public health nuisance) or is some mold merely annoying? Is the role of public health to protect the average person and some vulnerable populations like children exposed to lead hazards as opposed to hypersensitive individuals? Are dangers to the health h of only hypersensitive i individuals private health nuisances and not public health nuisances?
14 Conclusion A lawyer that has a good understanding of how broad the jurisdiction and authority of a public health department is will be better able to say yes we can to the client health practitioner A lawyer must know the limits of public health authority, balance constitutional and statutory requirements and be able to explain why sometimes the answer is no we can t Good two-way way communication between lawyer and practitioner is key to successful public health action. Strong relationships will facilitate explaining law to practitioners and public health to outside lawyers In-house Counsel greatly enhances communication, mutual understanding and successful action
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1001 PENNSYLVANIA AVE., NW SUITE 500 SOUTH WASHINGTON, DC 20004 TEL 202-289-4322 FAX 202-628-2507 E-Mail rich@fsround.org www.fsround.org February 22, 2011 RICHARD M. WHITING EXECUTIVE DIRECTOR AND GENERAL
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