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Framing Executive Action

The Importance of Legal and Policy Tools to State Public Health Crisis Management

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Nathan Myers
October 2, 2015

In October 2014, Governor Dannel Malloy (D-CT) declared a public health emergency in his state. As part of that order, Malloy granted the public health commissioner authority to quarantine anyone who was believed to be exposed to or infected with the Ebola virus. Mandatory quarantine orders were subsequently issued to all travelers returning to Connecticut from Ebola-affected countries. By the end of the month, four orders affecting eight individuals were in effect.

While Governor Malloy did receive some criticism for this policy, it was considerably more muted, particularly on the national level, than criticism of similar actions by Governors Cuomo (D-NY) and Christie (R-NJ). This may have stemmed in part from the fact that Malloy did not present his policy in a way that appeared confrontational toward the federal government. But it is also important to note that Malloy’s engagement with the Ebola issue was not limited to granting quarantine authority to his top public health official.

Judy Benson reported these actions in an article in The Day. After declaring the emergency, Malloy assembled a team of state officials to coordinate resources in the event of an Ebola-related emergency and to inform the public. Malloy also engaged directly with hospitals, ordering them to conduct preparedness drills to gauge their capacity to respond to Ebola. In addition, hospitals were required to prepare and complete Ebola preparedness checklists. Secondary screening procedures were developed for international flights coming into the state in case there was an uptick in U.S. Ebola cases.

Governor Malloy was successful in taking decisive action on Ebola without sacrificing political support, unlike Governor Pat Quinn (D-IL), who instituted similar quarantine policies and lost a re-election bid. While there are certainly many factors that affect re-election success, it is worth considering why Governor Malloy took actions similar to a number of governors, yet did not bear similar backlash. An important distinction may be that Governor Malloy began with an official declaration of a public health emergency and put all subsequent actions within that context. That may have helped to give the governor’s action an additional appearance of legitimacy. Perhaps more importantly, the public health emergency declaration also created a framework for a more coordinated and comprehensive response.

In a September 2014 American Journal of Public Health article by Lainie Rutkow titled, “An Analysis of State Public Health Emergency Declarations,” she notes that an official declaration gives public health responders a sense of the parameters in which they can act as well as greater latitude for taking action. A declaration, for example, may clear the way for a temporary waiver of regulations regarding allowing out-of-state medical professionals to practice in the state, which permits a bolstering of the state health workforce. Rutkow recommends all states codify the process for declaring a public health emergency and then make certain that their public health law infrastructure is suitable for supporting the response.

This latter piece involving strengthening the public health law infrastructure may require some significant work in many states. A 2012 article, “The Role of Law in Public Health Preparedness: Opportunities and Challenges,” from the Journal of Politics, Policy and Law by Peter Jacobson, Jeffrey Wasserman, Anda Botoseneanu, Amy Silverstein and Helen Wu reported that local and state officials feel that legal authority in public health emergency response must be much better clarified. Officials participating in the study reported a lack of training opportunities in legal preparedness, as well as a tendency to make decisions based on their own perceptions in the absence of clear guidance. Local officials were unclear on their authority to place individuals in quarantine. Existing public health emergency laws were seen as ineffectual in the absence of public support. To allow for coordinated and comprehensive responses in the future, states must take action to address these shortcomings.

States should also clearly communicate to officials at the federal level the importance of having certain preemptive policies in place before the next emergency. Brooke Courtney, Susan Sherman and Matthew Penn, in a Spring 2013 article in the Journal of Law, Medicine and Ethics, note the value of public readiness and emergency preparedness declarations to allow for manufacturing, testing, and distributing drugs and other medical countermeasures without concern for liability. Such declarations can be made ahead of an emergency, as can other preemptive policies such as emergency use authorizations for non-approved drugs.

Governor Dannel Malloy was able to take decisive action in the face of a public health crisis and emerge re-elected and largely unscathed politically because he effectively used the legal and policy tools at his disposal. Other governors can learn from this example. However, many will need to make sure that legal infrastructure is sufficient to support the response effort. Governors must sometimes make difficult, unpopular choices in an emergency, but the public is likely to be more forgiving if it is clear that the actions are taken within clear legal authority and with a coordinated strategy in mind.

Author: Nathan Myers is an assistant professor of political science and public administration at Indiana State University.

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