Legislature delays update on health law

There is nothing like a crisis to create the impetus to act - or so you would think.

In 2007, the state Senate adopted a resolution recognizing that Pennsylvania's public-health law on the prevention of infectious disease was largely obsolete. Describing it as a patchwork of laws dating to the 1950s, the Senate noted the need to update our statutory scheme to meet the challenges of the modern world and, specifically, "emerging biological threats." The Joint State Government Commission of the General Assembly was enlisted to suggest ways to modernize the law.

More than seven years later, after countless meetings, conferences, and debates, the legislature has done nothing. Considering that the control of infectious disease remains almost entirely a state responsibility, the stakes are high.

In 2003, much of the world's attention was focused on the spread of severe acute respiratory syndrome (SARS), which had caught the public-health community by surprise when it struck Canada. During roughly the same period, there was an international outbreak of avian influenza among poultry that had spread to humans.

Most recently in last year's Ebola crisis, the world has seen how very quickly things can go wrong when dealing with a contagious and often deadly disease. In America, the fear of an outbreak of epidemic proportions spread just as rapidly as hysterical media reports, with all the dysfunctional consequences one would expect.

More importantly, the often chaotic and diverse nature of the responses by state and local jurisdictions to such threats was clear. The debacle surrounding the quarantine of nurse Kaci Hickox in New Jersey and Maine was an excellent example of the tension that results when less-than-reliable information drives the protection of public health and individual rights. In Hickox's case, court intervention was required to assure compliance with the rule of law and avoid an overreaching quarantine directive.

After more than six years of work, Pennsylvania's commission formulated numerous recommendations to update the health-care laws and sent its report to the Senate in 2013. Yet nothing has been done. The suggested changes, which are without ideological orientation or partisan bias, include:

Eliminating conflicts and uncertainties in current statutes that interfere with effective and consistent decision-making by government officials;

Delineating clear lines of authority and responsibility within state and local government in the event of an immediate threat to the public's health;

Identifying contagious-disease control measures, such as quarantine and compulsory testing, that are properly at the government's disposal and the circumstances under which they may be employed;

Assuring that health-care facilities and providers are designated for and prepared to receive, assess, and treat individuals as required;

Providing for expedient judicial review of cases, with necessary procedural guidelines, when the legality of government action is challenged.

We learned from the disasters that followed Hurricanes Katrina and Sandy that we should take little comfort in the mere existence of laws or the development of plans. In times of crisis, it is performance that counts. And it is the role of the law to both engender effective action and to protect important individual rights.

Pennsylvania's Disease Control and Prevention Act has not been comprehensively overhauled since its adoption in 1955, and its archaic nature is evident in the fact that syphilis - not Ebola or SARS - is regarded with particular concern. More importantly, the law has never been seriously tested in the context of a significant public-health crisis and, as a consequence, has received almost no judicial attention. A similar situation exists with the Counterterrorism Planning, Preparedness, and Response Act. It is of far more recent vintage and provides the governor with significant authority, but offers little guidance in exercising that power. Much of the critical decision-making is left to local health authorities, a disparate group of agencies and individuals only loosely overseen by the commonwealth.

How will Pennsylvania perform if faced with an outbreak of deadly flu or some other ominous infectious disease? Unless key aspects of state law are clarified, we risk a response from public officials that could be a serious impediment to effective disease control and public confidence.

If we learned anything from the Ebola scare, it was that we risk peril when fear, rather than reasoned response, becomes the order of the day. Responding to a public-health crisis should not be an experiment. Now is the time to act to address the limitations of our statutory and regulatory scheme.

There is no good reason to take eight years to adopt critical improvements to a law that almost everyone agrees is obsolete, especially one intended to protect the public's health. When it comes to the control of serious contagious disease, "out of sight, out of mind" is a dangerous public policy.

John A. Bozza is a senior judge in the Court of Common Pleas of Erie County and a member of the Joint State Government Commission Advisory Board on Public Health. jbozza@neo.rr.com