Legal Basis For Public Health Surveillance

The legal basis for public heath surveillance in the United States ultimately derives from the U.S. Constitution, which reserves for the states the authority and primary responsibility for protecting the health of the public. States pass legislation and develop health regulations to carry out this responsibility, but states vary in the extent to which they delegate this responsibility to local health departments.

3.1. U.S. Constitution

The U.S. Constitution (10th amendment) reserves for the states all powers not delegated to the United States or prohibited by it to the states (U.S. Constitution Online, 1995). Public health powers are clearly among those powers reserved for the states. As a result, states have primary authority and responsibility to protect the health of the public (Committee on Health Promotion and Disease Prevention, 2003). States can delegate these powers to the local government only if it is allowed by the state's constitution.

For most of its history, the U.S. Supreme Court has also interpreted the U.S. Constitution in favor of granting the federal government powers to protect the public's health and safety. In particular—under the federal authority to "regulate commerce...among several states'' (U.S. Constitution, 1787) and other constitutional delineations of federal authority— the U.S. Supreme Court has understood the federal government to have roles in environmental protection, occupational health and safety, and food and drug purity (Gostin, 2000).

In practice, the federal government contributes to the public's health in six ways: "(1) setting health goals, policies, and standards; (2) financing; (3) protecting the public's health; (4) collecting and disseminating information about U.S. health and healthcare delivery systems; (5) building capacity for public health; and (6) managing services'' (Committee on Health Promotion and Disease Prevention, 2003). In contrast to state and local public health agencies, the federal government has a limited role in the direct delivery of health and public health services, with the exception of military and Veterans Administration (VA) health care.

3.2. Legislative, Judicial, and Executive Branches of Government

The U.S. Constitution divides responsibility and authority among the legislative, judicial, and executive branches of the federal government. States, counties, cities, and towns have adopted similar schemes of governance.

In health matters, the legislative branches at all levels of government enact laws, develop health policy, and allocate monies for programs and infrastructure.The U.S. Congress, for example, has committees that oversee the activities of federal agencies, review the authorization of programs, and shape the appropriation of funds. Multiple committees in both the House of Representatives and the Senate have jurisdiction over programs and health-related activities (Committee on Health Promotion and Disease Prevention, 2003).

The executive branches at all levels of government establish health regulations and enforce health policy. State health departments, for example, develop codes that determine which diseases are notifiable, sanitation standards for restaurants, and standards for hospitals and doctor's offices. We discuss the administrative processes of government and the effect they have on development of biosurveillance systems at the end of this chapter.

The judiciary's task is to interpret laws and to adjudicate disputes (Gostin, 2000). The judiciary's function of interpreting the law to resolve legal disputes makes the courts' role in public health deceptively broad. Courts exert substantial control over public health policy by determining the boundaries of legislative and executive government power. The courts may decide whether a public health statute is constitutional, whether agency action is authorized by legislation, whether agency officials have gathered sufficient evidence to support their actions, and whether government officials and private parties have acted negligently. The judicial branch adjudicates constitutional claims regarding, for example, individual rights or federalism (Gostin and Hodge, 2002).

3.3. Health Codes

State and local governments have the authority to engage in a broad array of regulatory activities. They have the right to require businesses to meet standards for safety and sanitation through the institution of regulations, inspections, licenses, and nuisance abatements; to prevent individuals from engaging in unduly risky behavior that poses a danger to others; and to regulate the quality of health care provided in the public and private sectors (Committee on Health Promotion and Disease Prevention, 2003).

Each state and city enacts health laws and regulations (which we refer to collectively as health codes). These health codes, having evolved somewhat independently, may vary among jurisdictions in structure, substance, and the processes they specify for detecting, controlling, and preventing injury and disease. In fact, health codes across America differ so significantly in definitions, methods, and scope that they defy orderly categorization (Committee on Health Promotion and Disease Prevention, 2003).

Of particular importance, variations in health codes across jurisdictions create some variability in systems for public health surveillance. For example, HIV is a disease for which there is a significant difference in state reporting procedures. When laboratory tests for HIV first became available, many states began to require the reporting of HIV, the causal agent for AIDS, as it is standard public health practice to revise reporting practices when the causal agent for a disease is discovered. In several states, however, there was political opposition to HIV reporting because of the fear that public health officials would not protect the confidentiality of the reports and would use the information for improper purposes (Richards, 2005). Thus, although Connecticut (Connecticut Department of Public Health, 2002) requires physicians to report HIV cases, Hawaii only requires laboratories to report HIV infections by using a unique identifier (not by patient name) (Hawaii State Department of Health, 2005). As a result, in the event of an HIV outbreak, it would be virtually impossible to locate individuals in Hawaii in order to curtail the outbreak; however, in Connecticut, an outbreak may be more easily contained because the people involved may be more easily contacted.

In general, variability in methods of public health surveillance among jurisdictions makes control or understanding of outbreaks that cross jurisdictional boundaries difficult. Although there are often justifications for differences in health codes across states owing to different needs or circumstances, a certain amount of consistency is necessary to enable biosurveillance and coordinated responses to health threats by states (Committee on Health Promotion and Disease Prevention, 2003).

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