Commentary

CDC's Model State Emergency Health Powers Act
Goes Too Far

Twila Brase, RN

To combat bioterrorism, federal health officials have proposed that state legislators give state health officials new powers over citizens. The powers proposed in the Model State Emergency Health Powers Act would be broad and sweeping, forcing citizens to submit to physical examinations, tests, quarantine and vaccinations against their will.

Some states, including Minnesota, are already considering enactment in 2002.

Citizens' Council on Health Care (CCHC) is concerned that the proposal would provide intrusive authority for purposes far beyond bioterrorism. According to press accounts, the writing of the Act began well before September 11th --- the day of the terrorist attack.

Unfortunately, the terrorist attack and the public's new awareness of bioterrorism have given public health officials new ammunition to advance their pet projects of health care surveillance and mandatory vaccination.

Of particular concern in the Act are the following provisions:

Broad Scope/Loss of Civil Rights

A "public health emergency" can be declared by the governor for far more than bioterrorism. In fact, all that's needed to put the public under the control of state health officials is simple belief that an illness or health condition has the potential to be caused by bioterrorism, new or previously controlled infectious agents, biological or chemical toxins, or nuclear or natural disasters. Actual evidence is not necessary.

Although due process is allowed, the Act permits state officials to identify and train personnel to serve as "emergency judges" to deal with citizen appeals of forced quarantine and isolation. Such training may be biased.

Citizens are required to submit to medical examinations, vaccinations, and quarantine against their will if a public health emergency is declared.

Public health officials are given authority to "collect specimens and perform tests on any person" even if they are healthy with no history of exposure to disease. There are no limits on the number or types of tests that can be performed on individuals, or on the bodily specimens that can be collected. DNA and genetic testing are not excluded.

Health care professionals who refuse to provide forced medical examinations or vaccinations can be stripped of their license to practice.

Citizens who refuse to comply can be forced into quarantine. Failure to obey constitutes a misdemeanor.

Police officers will be placed under the authority of health department officials.

Medical Privacy Violations

Regular ongoing reporting of individual patients and their purchase of medication is required.

Health care professionals, health care facilities, coroners, medical examiners and pharmacists must provide information (name, date of birth, sex, race, address, name of doctor/clinic, occupation) to the state health department if the "illness or health condition may be potential causes of a public health emergency." No patient consent is required.

Broad access to patient medical records is permitted without patient consent for research related to

epidemics and infectious disease, including to unnamed "appropriate federal agencies or authorities." There are no requirements that the individually-identifiable data be deleted, or not used or shared for other purposes, once the public health emergency order is terminated.

State Control

Public health officials can assume control of hospital and clinic operations.

State control of communication facilities, food distribution, fuel supply, and real estate is authorized.

State rationing of food, fuel, clothing, alcohol, firearms, and other commodities is authorized.

Conclusion

The Model State Emergency Health Powers Act, prepared for the Centers for Disease Control and Prevention, was written by Lawrence O. Gostin, J.D., Professor and Director of the Center for Law and the Public's Health at Georgetown University Law Center. It is meant to provide a template for state legislation. Two drafts of the act have been released, the second on December 21, 2001.

Ms. Brase is the president of the Citizen's Council on Health Care (CCHC), an independent, free market, health care policy organization located in St. Paul, Minnesota. Her e-mail is: twila@cchc-mn.org.

Originally published in the Medical Sentinel 2002;7(1):25. Copyright©2002Association of American Physicians and Surgeons (AAPS)