December 5, 2002
Bill to bolster state’s power in health crisis
By PAUL M. KRAWZAK
Copley Washington correspondent and
PAUL E. KOSTYU Copley Columbus Bureau chief
WASHINGTON — A rewrite of the state health code may have drawn little notice in Ohio, but it’s based on a model that has stirred opposition from civil liberties advocates elsewhere in the nation.
The rewrite is contained in a bill sponsored by Ohio Sen. Priscilla Mead, R-Columbus, which the Senate passed 30-1 Wednesday. It now goes to the House, where its fate is uncertain.
Mead’s bill is patterned after a model “state emergency health powers act” conceived by the Centers for Disease Control and Prevention. A guide for states that are revising their health codes after the Sept. 11 terrorist attack, the model is meant to help prepare for a bioterrorist incident or other public health
Both liberal and conservative civil liberty defenders have taken swipes at the act, which they say gives governors and state health departments too much power.
Up to now, 20 states and the District of Columbia have adopted some version of the model. Other states have rejected it, while some still are considering legislation.
The Ohio bill gives the state health director, Dr. J. Nick Baird, the power to take “any action” necessary to fulfill his duties at the Department of Health.
It grants the director sweeping powers to enter and examine buildings for a health threat, demand related documents and order people into quarantine or isolation to prevent the spread of disease.
Doctors and others who ignore information reporting requirements face criminal penalties, including fines specified by the health director.
Under the bill, pharmacists must let the health department know when there is an unexpected increase in orders for drugs or medications, indicating a possible outbreak.
Some of these powers already exist in Ohio law, such as the authority to order a quarantine or enter buildings.
Mead said the legislation gives the state health department the tools it needs to “respond in emergencies quickly, completely and properly.” She added that “since our health code has not been updated since the 1890s, there were technical changes needed as well.”
Mead expressed confidence the legislation sufficiently protects individual privacy.
But state Sen. Jim Jordan, R-Urbana, the lone vote against the bill, said it does not provide for any legislative oversight of health department actions.
“The director declares an emergency, has the power to quarantine, power to immunize, power to vaccinate, power to do all kinds of things,” he said. “There’s no check, no legislative check or judicial check on that. It’s very broad power that he would then exercise, could exercise.”
He said the bill was brought up too quickly and that’s why there was little opposition to it.
If the House does not pass the bill before the end of the year, it will die in this session.
State Rep. Greg Jolivette, R-Hamilton, chairman of the House Health and Family Services Committee, said the bill won’t get a hearing in his committee before planned adjournment Friday.
Jolivette said he didn’t know anything about the bill and thus would be hesitant to let it slide through with a nominal hearing.
Opponents say even though the Ohio bill is not as bad as the model, it’s still unacceptable.
“We would be opposed to” the Ohio bill, said Sandy Liddy Bourne, adviser to the homeland security working group of the American Legislative Exchange Council. The council, a group of conservative legislators, opposes the model legislation.
Bourne is most worried about a provision in the Ohio bill giving the health director broad authority to “take such actions as are necessary to promote vaccination” against certain diseases. These include mumps, diphtheria, tetanus and hepatitis B.
“It frightens me more than anything else,” she said. Because the language is vague, “a lot of things can happen under this sort of statement.”
A defender of the bill ventured that it probably does give the health director the power to order immunizations. But Jodi Govern, chief legal counsel for the Ohio Department of Health, added that existing law already may grant this power.
“I think it’s just as clear as it was before” that the director could order people to be vaccinated in an emergency, she said.
Govern defended the provision allowing the health director to take “any action” considered necessary to fulfill his duties.
That far-reaching authority is needed because “it’s impossible to predict what kind of disaster Ohio might face,” she said.
Govern could not specify what powers would be included in “any action.” But she said the health director could not, for example, arrest or imprison people because he doesn’t have police powers.
Despite her opposition, Bourne had something positive to say about the Ohio bill. “What I like about the bill is they at least attempt to maintain some kind of confidentiality for individual people,” she said.
She also commended Ohio legislators for going through the existing code and amending it rather than just adopting the model legislation in full.
Lawrence O. Gostin, a Georgetown University law professor who was lead author of the model legislation, considers it a certain improvement over existing, out-of-date state health codes.
“Any law can be abused,” he said. “But I think this has everything that can be done by legal drafters to make sure it isn’t abused. It has checks and balances, it has clear criteria for the exercise of powers, it’s got procedural due process. So it’s very sensitive to issues of justice and accountability.”