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Law Midterm - General Review > General Information - Midterm > Flashcards

General Information - Midterm Flashcards

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1
Q

2 Primary Characteristics of PH Law

A

1. Govt power and duty to protect common good

Encompasses fact that PH law is in large part about govt action
Common goods – things that benefit many and that require collective action to achieve/maintain (ex: clean air, clean water, safe neighborhood, active city where people participate in government

2. Govt power and limits on power

  • Voluntarism v. coercion* – line sometimes blurry (ex: immunization is “required” but technically voluntary because nobody is forcing you; it is coercive because it limits your ability to go to school)
  • Power to compel* – ex: sanitarians can shut down a business
  • Limits on state power* – ex: constitution
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2
Q

Population-Based Perspective of PH Law

  • 3 ways of reducing incidence
A

Identification, prevention, and interruption of incidence of disease

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3
Q

PH Law Basics:

Communities and Civic Participation

  • importance of communities
  • problems?
A

Importance:

Communities are important because they can cause good health, or cause bad health /instigate worse health (ex: violent communities) –> In many cases, the only way to change certain health behaviors/risk is to have engagement between PH enforcement and the community.

**Problems: **

  • Hard to implement laws without cooperation of the community
  • What is a “community”?
  • Pointless to have laws without implementation and/or enforcement
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4
Q

Prevention

  • Definition and Problem
A

Defined: interventions designed to avert the occurrence of injury or disease

Not sexy :( tends to inspire whining more than happiness (ex: forcing kids to pass a swim test to swim in the pool)

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5
Q

Role of Social Justice

A
  • Core value of public health
  • Health improvement for the population
  • – ex: sanitarians required cities to have sanitation, ventilation, etc. before we even knew about causes of illness! The idea that you need to help the poorest among you, who are most vulnerable, has been an idea of PH since the beginning!
  • Fair treatment for the disadvantaged
  • Prioritize the most marginalized, who are often most vulnerable.
  • Part of history of PH as well
  • Fair sharing of common advantages and distributions of burdens – how do we make sure that areas of people with less money have the same access
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6
Q

PH Statutes

  • what do they do?
  • what is their focus?
A

In all states, these define the scope of power in PH, the mission, and sets limits on PH power.

The process of making the laws = important; meant to be transparent enough to make sure people know what is happening (community engagement = more investment in outcome!)

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7
Q

PH Legal Powers

  • 7 powers
A
  1. Power to Tax and Spend (for the “general welfare”)
  2. Power to alter informational environment
  3. Power to alter the built environment
  4. Power to alter the socioeconomic environment
  5. Direct regulation of persons, profession, and business
  6. Indirect Regulation
  7. Deregulation
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8
Q

Federalism

A

Allocates power between fed and state govt

Supremacy Clause/Preemption

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9
Q

Separation of Powers

A

Each branch of govt influences health policy

Each branch has limited powers to protect its power

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10
Q

3 Questions to Ask - issues of Government action

A
  1. Does the govt have a duty to act?
  2. Does the govt have the power to act?
  3. How is govt power limited?
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11
Q

The Negative Constitution

A

Const’s language frames protections of individuals against restrictions by State
Strict interpretation would hold: State has NO duty to protect against invasions of rights by private actors (Rehnquist, 1989)

Problems:

Acts v. omissions – sometimes had to tell which the government is doing
Fed gov and courts failure to protect can leave states free to abuse citizens
Provides incentive to states NOT to act
Interpretation ignores the context of “positive rights”, or obligations inherent in 18th century.

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12
Q

Sovereign Immunity

A

11th amendment grants states immunity from certain lawsuits in federal court without the state’s consent.

Respects states being mini countries that rule their own land.

States can waiver this in exchange for getting federal funds

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13
Q

Federal Presence in PH

  • Comes from the ___ Branch
  • Examples?
A

Comes from Executive Branch

Examples:

USMHS à PHS
USMHS lab à NIH – National Institutes of Health
CDC – Centers for Disease Control and Prevention (in Atlanta)
HHS – Health and Human Services
Other Agencies: agriculture, labor, environment

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14
Q

Federal Govt Powers to Act

5 things

A
  1. Preemption
  2. Power to Tax
  3. Power to Spend
  4. Power to Control Commerce
  5. Necessary and Proper Clause
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15
Q

2 Main State Powers

A

Police Power

Parens patriae

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16
Q

New Federalism

A

Defined: “A principle of political change, spurred by conservative activism, that seeks to limit federal authority and return power to the states” (Hodge)

Limitations based in:

commerce clause – limits congressional authority
10th amend – reserved powers doctrine
11th amend – grants states immunity from certain lawsuits in federal court without state consent (Sovereign Immunity)

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17
Q

Limits on the Police Power

A
  • Constitution and BOR
  • Private v. Public Action
  • Due Process (PDP and SDP)
  • EPC
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18
Q

How much PDP is due?

  • test?
A

3 Factors Courts Balance (per Matthews v. Eldridge, 1976):

  1. Nature of the interests involved
  2. Risk of erroneous deprivation of liberty – helps avoid incorrect decisions
  3. Fiscal or administrative burdens (Administrative cost is the cost of adding more PDP)
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19
Q

4 Qualifications for Suspect Classes

A

Immutable trait
History of discrimination
Deprived of ability to be heard in political process (Discrete & insular)
Stereotypes

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20
Q

PHAs

  • Federal
A

From the US Marine Services to PHS, NIH, EPA, etc.

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21
Q

PHAs

  • State
  • 4 things
A
  1. plenary police power
  2. can be part of super-agency
  3. can be cabinet level independent agency
  4. centralized v. decentralized
    1. centralized - all work being done in state is by state employees
    2. decentralized - county or city level
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22
Q

PHAs

Local level

A
  • authority delegated by state

lots of local activity

“home rule” in some situations

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23
Q

Powers of Executive Agencies

A
  1. Rule making
    1. admin procedure acts
    2. informal and formal paths
  2. enforcement
    1. legislature sets penalties
    2. agency monitors compliance
  3. quasi-judicial
    1. admin law judges conduct hearing with PDP to determine violations, penalties, etc.
24
Q

How are agencies limited?

A

Doctrine of Non-Delegation

Defined: Legislatures may not delegate FULL legislative authority to agencies or any other body à because they have to pay some attention to what they are doing, we don’t want them just handing off power delegated to them in the constitution

Rarely used to invalidate federal laws

25
Q

New Governance

  • what is the focus?
  • what are some methods?
A

Focus is on deregulation. Some methods include:

  1. Emissions trading – cap and trade
  2. Negotiated rulemaking - allowing business input in policymaking
  3. Self-regulation – can be effective, but can also be ineffective, or even just another prelude to regulation.
  4. Public disclosure – regulates by forcing companies to disclose certain information about health outcomes, adverse events, etc. with the hope that public opinion will make the company want to act in ways that wont publically embarrass them.
26
Q

Approaches to Disease Control

  • name all 3
A

Microbial

Behavioral

Ecological

27
Q

Microbial Approach to Disease Control

What are they?

Examples?

A

They are PH Statutes based on a biological/microbial model

  1. Immunization
  2. Case finding (examination/testing)
  3. Reporting (surveilace)
  4. Contact tracing/partner notification
  5. Personal control measures (isolation, quarantine, civil commitment, court supervised or ordered treatment)
28
Q

Behavioral Approach to Disease Control

A

PH Tools or interventions based on a behavioral model

  1. Behavioral risk factor surveillance (BRFSS) by CDC
  2. Smoking cessation programs
  3. Safer sex education
  4. Nutrition programs (education, supplementation)
  5. Raising minimum drinking age to 21
29
Q

Ecological model to disease control

A

PH Interventions bsed on an ecological model

  1. Air bags and anti-lock breaks
  2. Restricting advertising practices of tobacco companies
  3. Air and water quality legislation
  4. Head start – encourages education at a young age; goal is developmental growth by giving good foundation
  5. Title IX – girls more likely to graduate, less likely to have babies, better BMI, more productive citizens
  6. Community policing
  7. City planning that includes sidewalks and bake paths
30
Q

Methods of disease control that don’t qualify under the main 3

A

Mosquito control
Food inspection
Water testing and treatment

31
Q

Immunization as a Common Good

  • what it offers
  • where the power comes from
  • legal provisions
A
  • offers BOTH individual and herd (public) protections
  • constitutional power comes from Jacobsen and Zucht
  • legal provisions
    • school immunications
    • National Childhood Vaccine Injury Act (1986)
    • Comprehensive Childhood Immunization act (1993)
    • ummunization registries
32
Q

CT Immunization Provisions

  • what section?
  • requirements?
A

comes from Chapter 169, title 10

  • requires mandatory immunizations for school entry
  • requires satisfaction by physician certification
  • exeptions for religion, proof of past case of disease
  • state is immutable from liability due to adverse reactions
33
Q

Testing

A

a medical procedure that determines the presence or absence of a disease, or its precursor, in an individual patient

34
Q

Screening

A

the systematic application of a medical test to a defined population.

35
Q

Testing and Screening - what is reliability?

A

consistency of test results

36
Q

testing & screening - what is yield?

A

amount of previously unidentified disease being identified by current test

37
Q

testing and screening - what is predictive value?

A

screening programs only have value if they are scientifically sound, show high sensitivity and specificity, reliability, and yield.

Need to know prevalence and population

38
Q

5 Types of Screening

A
  1. Compulsory – 4th amendment – protects against unreasonable search and seizure
    1. Issue: whether analysis of blood, urine, or other tissue is reasonable
    2. Special Needs Doctrine: When the state has special needs beyond the normal need for law enforcement, the warrant and probable or reasonable cause requirements may not be applicable.
  2. Conditional, routine with advance notification (opt-in)
  3. Routine without advance notification (opt-out)
  4. Voluntary
39
Q

HIV Testing/Screening

  • CDC Recommendations
A
  1. HIV screening recommended for patients in all health care settings
  2. “routine testing” with notification and opt out
  3. High risk persons should be screened at least annually
  4. Separate written consent for HIV testing and/or prevention counseling should NOT be required for HIV testing
40
Q

HIV Testing/Screening

  • Impacts of CDC Recommendations
A
  1. Impact: not legally binding, but very persuasive and caused many changes (like CT) to change policies – require documenting, etc.
  2. Federal law: funding may be affected in subsequent fed laws
  3. State law:
  4. Changes?
41
Q

CT HIV Testing

  • policies for adults and minors
  • adult - when do you have consent?
A
  • Adults
    • General consent to medical procedures is sufficient for HIV testing if:
    • Patient is told hat, as part of med procedures, the patient may be tested for HIV and
    • Testing is voluntary and may be refused, and
    • Refusal should be documented
  • Minors
    • Do not need parental permission
    • If minor does not want to disclose to parents, no info or billing can be sent to them
42
Q

Perinatal Prevention of HIV

4 Requirements in CT

A
  1. Counseling
    1. all pregnant women about benefits of HIV testing and treatment
    2. mandatory
  2. Vol testing
    1. Based on same rules as for non pregnany adults – 2 times (first visit and 3rd trimester)
  3. Routine testing
    1. At time of delivery for women who have not been tested earlier – woman can refuse in writing
  4. Mandatory testing of newborns
    1. IF mother not tested – parents may refuse for religious reasons
43
Q

Constitutional Limits on Power to Test and Screen (2)

A

4th amendment

“privacy”

44
Q

Rehabilitation Law - limiting power to test and screen

A
  1. Federal Rehabilitation Act
  2. ADA – 4 criteria to determine whether healthcare provider must treat sick person based on reasonable accommodation
  3. GINA
45
Q

3 limits on the limits on power to test and screen

A
  1. Skinner
  2. Disability
  3. Genetic Info Antidiscrimination Law (GINA)
46
Q

Mandatory Treatment

  • General Principle
  • Requires ___
  • Problems
  • 3 Justifications
A
  • General Principle: PH law includes the power to mandate phys exam and treatment if a person has a dangerous communicable disease
    • Purposes include: benefit of patient, protection of public, preservation of effective treatments
  • Requires Balance: Must be balanced against individual right to refuse treatment
  • Problems: Significant invasion of bodily integrity, even liberty
  • 3 justifications:
    • Protect the public health
    • Protect the individual
    • Preserve the effectiveness of treatment (prevent drug resistance)
47
Q

2 Methods of Mandatory TB Treatment

A
  1. Hospitalization
  2. Directly Observed Therapy
48
Q

CT TB Provisions

  • physician’s job
  • local health dept’s job
  • town’s job
  • other legal stuff
A
  • Physician must report & provide instructions of all persons with TB
  • Local health director must develop and approve the
    • Hospital/institutional discharge plan
    • Individualized plan for outpatient treatment ad transmission prevention
  • Town or city who determines that PH is imminently endangered by a person with/suspected of active TB may:
    • Issue a warning that patient should be examined by physician; complete treatment as prescribed; adhere to DOT, or
    • Issue an emergency commitment order (96 hours); or
    • Petition probate court for civil commitment
  • Law includes due process protections
49
Q

Mandatory Treatment for HIV

  • no state requires ____
  • Oregon case
  • Maine case
A
  • No state mandates treatment of pregnant women
  • Oregon case: state took legal custody of newborn whose HIV infected mother wanted to breastfeed
  • Maine case: court upheld mothers’ decision NOT to give her child with AIDS anti-retrovirals based on poor prognosis and older child’s death
50
Q

Expidited Partner Therapy

  • what is it?
  • benefits?
  • issues?
A
  • Defined: Treating the sex partners ot persons with STDs without an intervening medical eval or professional prevention counseling
  • Benefits:
    • Reduces re-infection risk
    • Reaches people you might not otherwise get
  • PH/other policy issues:
    • Safety criteria around treatment
    • General policy of practitioners seeing the patients who they treat
51
Q

Isolation

A

separating the sick from the healthy to prevent contagion

52
Q

Quarantine

A

separating the exposed from the healthy to see who gets sick and prevent further contagion

53
Q

Constitutional Review of Isolation/Quarantine

A

Some states allow for mandatory treatment in hospital/prison setting, others do not

54
Q

Geographic quarantine during epidemics

  • main issue
  • what regulations control?
  • examples?
A
  • main issue = freedom of movement: right to travel
    • limited by Greene and Jacobsen
  • International Health Regulations - a short list of restrictable situations
  • examples: HIV travel ban, Ebola
55
Q

Criminal Law as a PH Tool for HIV

A
  • Many states have criminal sanctions for knowingly exposing others to HIV (32)
  • CT - no HIV specific law

Law Midterm - General Review (1 decks)

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