I am really quite honored to have a chance to be here. Also let me say how much I appreciate what all of you public health professionals do. One of the unfortunate dimensions of modern American life is that we have chosen to privatize all aspects of life. People do not live on their front porches anymore and watch their neighbors in the evening. They go out back in their wall-enclosed backyards. And we have done the same with medicine.

Medicine has been privatized in America. We have lost a sense of the public obligations of health and hygiene and sanitation. So I thank you for keeping the flame alive on what we clearly now know is the far bigger issue of health care in modern society.

Today’s panel is about the expanding boundary of population health policy, what that expanding boundary has to do with law, and what kinds of challenges and opportunities come out of it. What I want to do for the next few minutes is talk to you about the notion of population health as it exists where law and policy are made, rather than where it exists in a spectacular international theoretical literature. Then I want to introduce our panelists. In the process, I will explain why the Honorable John Nilson, is not with us, which tells you a great deal about not only the real world of the politics of population health, but also about the kind of trouble you can get into if you are a first class lawyer involved in population health.

I would like to extend my appreciation to the planning committee of this outstanding conference, the Centers for Disease Control and Prevention (CDC) and the American Society of Law, Medicine & Ethics (ASLME) for allowing me to have this great opportunity to share my experience in teaching and studying medical and public health law and ethics with my U.S. colleagues. This morning, USA Today is reporting that Brundtland, the Director General of the World Health Organization (WHO), finally declared that the aggressive control measures have stopped SARS. I think it is a special achievement on her part as she departs the WHO in less than two weeks. The new Director General of the WHO, JW Lee, is a close friend of mine.

Thank you so much for the invitation to be here with you. It is always a pleasure to be with people who understand, believe in, and know the importance of public health. Those of us who work in the legislative arena know how infrequent it is to have dialogue and conversation with people who really have a good, tangible, hands-on working knowledge of health care, and particularly of public health.

The notion of public health is an interesting one. It will range—if you talk to people in the legislature or out of the legislature—from just complete ignorance to total unawareness of what we mean by the words “public health.” When you talk to individuals like us in this room, we find a mixture of definitions, a mixture of understandings, and a mixture of appreciation as to what public health really is.

The Centers for Disease Control and Prevention’s (CDC) goal is to develop a surveillance system of public health laws that would both support research and analysis among policymakers and legislators, and support the scientific basis for public health law. This session was convened, in part, to discuss the value of creating an electronic system to track public health legal information. Public health surveillance is the “ongoing, systematic collection, analysis, interpretation, and dissemination of data regarding a health-related event for use in public health action to reduce morbidity and mortality and to improve health. Data disseminated by a public health surveillance system can be used for immediate public health action, program planning and evaluation, and formulating research hypotheses.” There is currently no system available that meets the goals of this definition of “surveillance” for public health laws.

There is a fine balance between civil liberties and protection of the public’s health.

Legislators, especially those in the western United States, are concerned about selling the Model State Act (“Act”) because of the loss of civil liberties. State constitutions give governors broad powers, such as declaring martial law and giving public health leaders the authority to act. State laws should consider issues such as property rights; taking of businesses and supplies; quarantine and isolation; due process; coordination among states, counties and cities; communication systems; conscription of doctors and nurses; and compensation. When two mock emergency response drills were held in New Mexico, concerns arose regarding opening records associated with dams, national laboratories, waste repositories, and three air force bases.

Public health preparedness must use a comprehensive approach that includes both communities and public health systems. There are three basic questions that should be asked when evaluating public health preparedness in communities of color: 1) Is the community basically healthy?; 2) Does the community have access, to necessary information, resources and services?; and 3) Are the information, resources and services available and provided to the community in a nondiscriminatory manner?

Racial-based health disparities is a well documented fact for many communities of color. Individuals from these communities tend to have more morbidity and higher mortality. This health disparity is race based and not just a function of social class. Similarly, access to basic goods and health care is racialized and class based.

The Department of Health and Human Services, Office for Civil Rights (OCR) enforces Section 504 of the 1973 Rehabilitation Act and Title II of the Americans with Disabilities Act. OCR works through complaint investigations and compliance reviews, as well as outreach, technical assistance, and public education to promote voluntary compliance. In the Olmstead decision of June 1999, the Supreme Court held that the ADA’s “integration regulation” requires state and local government to administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. The decision changed the focus from whether a right to more integrated services exists, to under what circumstances and how services will be provided. The New Freedom Initiative announced by President Bush in February 2001 is a broadbased initiative to remove barriers to community living for people with disabilities and promote swift implementation of the Olmstead decision.

Most hospitals are considered charities under common law because they were established for the benefit of the public. The law granted them benefits, but also imposed duties. Under the cy-pres doctrine, if a charitable purpose becomes obsolete or incapable of being carried out, the court could modify those purposes to meet current needs of the organization and the community. Modern laws attempt to find a purpose as near as possible to original purposes set up by donors. In the case of hospital conversion, some regulators say assets must be used to support hospital health care, while others say they can be used in the broad sense of health care. That has been a continuing conflict between communities and regulators.

Since 1996, 30 conversion statutes have been enacted, covering hospitals, HMOs, and insurers.

Diabetes is a chronic and systemic disease that has reached epidemic proportions. An estimated 17 million Americans have diabetes (5.9 million of which are undiagnosed), and an additional 16 million individuals are considered to have pre-diabetes. Studies have shown that timely screening and referral are necessary to maintain healthy blood glucose levels and slow the progression of diabetes-related complications. Furthermore, lifestyle changes (i.e., altered diet and physical activity) can prevent or delay the onset of Type 2 diabetes for high-risk individuals.

The Division of Diabetes Translation at the Centers for Disease Control and Prevention undertook an analysis of diabetes-related legislation across the nation. More specifically, state laws, rules and regulations mandating health insurance coverage for diabetes-related supplies and services were examined according to Sample Purchasing Specifications for Services Related to Diabetes—an evidence-based model of standards of care for persons with diabetes.

The, Police Executive Research Forum is completing a major initiative that encourages police chiefs to formalize working relationships with emergency medical personnel. The effort is sponsored by the U.S. Department of Justice, Bureau of Justice Assistance as a demonstration with the goal of preventing recurring violence that eventually leads to homicide. The initiative originally involved a consortium of emergency room clinicians, emergency medical service (EMS) personnel, as well as police executives. The collaboration initially focused on arguably preventable dimensions of domestic violence and homicide. However, after “9/11” and the ensuing anthrax crisis, the project developed into a three-step draft interactive protocol for earlier police intervention in situations involving possible deaths and mass casualties. With this shift in the project, Police Executive Research Forum’s (PERF) principal collaborators shifted from emergency clinicians to public health practitioners.

The conflict between courts and medicine is best shown in the mental health cases requiring judgment of whether a person should be confined, and whether they should be medicated or left free to decide for themselves. In such cases, deprivation of liberty for noncriminal offenders is at question, but if they are released, they may be exposed to injury or injure others. “Clear and convincing” evidence is hard to prove in such cases.

The TOPOFF 2 terrorism preparedness exercise was two years in planning, but the courts were involved only seven days before the exercise (because quarantine issues were added to that exercise only two weeks beforehand). Judge Murphy was put in charge of the Circuit Court building and was asked to stop all court proceedings to stop people from going into a building that might have been contaminated.

Traditionally, hospital emergency readiness plans primarily addressed natural disasters, but because of preparations for year 2000, the arrival of terrorism in the United States, and the potential for mass casualties, hospitals were prompted to bring together new partners and create new emergency readiness plans. These new plans, however, give rise to a number of important issues hospitals must consider. First, hospitals must consider legal liability that might arise during an emergency. For example, what liability might arise when decision are made regarding the provision of individual treatment versus mass triage? Second, hospitals must be cognizant of relevant privacy rules, such as the Health Insurance Portability and Accountability Act (HIPAA), as they apply to public health emergencies activities. Third, hospitals must be aware of the Emergency Medical Treatment and Active Labor Act (EMTALA) which requires Medicarefunded hospitals to screen patients for emergency medical conditions and prohibits their transfer until they are stabilized.

The Tobacco Control Legal Consortium is a national “network” designed to tap expertise about tobacco control legislation and to leverage existing resources. Based at the William Mitchell College of Law in St. Paul, Minnesota, the Consortium supports local counsel with research, strategic advice, sample materials and pleadings, and amicus briefs. The Consortium’s priorities are to support capacity nationally, to offer education, and to perform outreach activities to a variety of audiences.

The Consortium seeks to advance policy change by making legal expertise more readily available to the tobacco control community. Legal issues are inevitably involved in policy change. The Consortium does not provide legal representation, but conducts analysis and research. They publish on important and emerging legal issues as well as on specific cases, assist in the development of legislation, and train public health practitioners and policy makers on recurring legal issues.

This is a volatile time for health insurance policy. Medicare and Medicaid are in turmoil, as is the private health insurance market. Public and private health insurance costs constitute eighty percent of healthcare spending in the United States. Public health professionals depend on the insurance system to behave in ways that are responsive to public health in prevention and crisis management.

Seventy-five percent of the American population, excluding the elderly, has coverage through the private health insurance system. Ninety percent of this group receives their insurance through employer-sponsored programs, and the remaining ten percent buy their own coverage. Approximately ten percent of the non-elderly population has insurance through a government program, and fifteen percent of the non-elderly population, almost forty-one million Americans, is uninsured.

SARS and monkeypox have given the public health community a unique opportunity to examine the use of quarantine measures. Until recently, the word “quarantine”was not used in polite conversation, and evoked unsavory images. The recent SARS epidemic illustrated the important role of quarantine and isolation as a public health response to communicable disease.

As public health officials in Toronto began to take control of the SARS epidemic, a second wave of the disease (SARS II) emerged. In the first SARS epidemic, approximately 8,200 individuals were isolated. There were approximately 82 probable cases, 66 suspect cases, and 24 deaths. On May 22, 2003, SARS II emerged. In total, approximately 13,000 people were quarantined. SARS II saw the onset of difficult questions being asked about the control and spread of SARS.

The province of Ontario establishes the public health policies and legislative framework for the entire province.

Compared to evidence-based public health, evidence-based medicine is a more familiar phrase. Evidence-based medicine has become increasingly popular in the past decade, due in large part to the emergence of computerized database search technology and advanced statistical tools which allow researchers to quickly identify and summarize vast amounts of scientific information.

Today, the concept of evidence-based public health is gaining momentum and has grown in popularity. However, the term “evidence-based” lacks clarification and is subject to a variety of interpretations. The evidence that supports evidence-based medicine or public health may include individual experience, anecdotal information, the content of a single scientific article, or the results of a sophisticated systematic review of scientific literature. The imprecise language used to describe evidence leads to confusion over what types of evidence are most appropriate in answering different types of questions.

The advent of sales over the Internet has led to interesting developments in sales tax policy as states attempt to monitor, control, and collect revenue from illusive Internet tobacco vendors. Tobacco sales have been successfully monitored and regulated, to some extent, in convenience stores, grocery stores, and smoke shops, and in most cases sales taxes are collected. The Internet, however, is extremely difficult to regulate. States could use their regulatory powers to ban the sale of products such as tobacco and alcohol over the Internet, but enforcement would be nearly impossible.

The issue of enforcement of Internet sales is extremely difficult. Keeping the products out of the wrong hands, under aged children for example, is difficult. Also, it is difficult in terms of tax policy.