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Summary
For the Public’s Health: Revitalizing Law and Public Policy to Meet
New Challenges, the second of three reports by the Committee on Public
Health Strategies to Improve Health, builds on earlier Institute of Medicine
efforts to describe the activities and role of the public health system. As
defined in the 2003 report The Future of the Public’s Health in the 21st Cen-
tury (IOM, 2003), the system is multi-sectoral and comprises governmental
public health agencies and various partners, including the community (indi-
viduals and organizations), the clinical care delivery system, employers and
business, the mass media, and academia, or more broadly, the education sec-
tor. The committee’s first report (IOM, 2011) redefines the system as simply
“the health system.” By using this term, the committee seeks to reinstate the
proper and evidence-based understanding of health as not merely the result
of clinical care, but the result of the sum of what we do as a society to create
the conditions in which people can be healthy (IOM, 1988).
The committee’s charge in preparing the current report was to “review
how statutes and regulations prevent injury and disease, save lives, and
optimize health outcomes” and to “systematically discuss legal and regula-
tory authority; note past efforts to develop model public health legislation;
and describe the implications of the changing social and policy context for
public health laws and regulations.”
“Law is foundational to U.S. public health practice. Laws establish and
delineate the missions of public health agencies, authorize and delimit public
health functions, and appropriate essential funds,” wrote Goodman and col-
leagues (2006, p. 29). The law is also one of the main “drivers” facilitating
population health improvement. The committee believes now is a critical
1
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2 FOR THE PUBLIC’S HEALTH: REVITALIZING LAW AND POLICY
time to examine the role and usefulness of the law and public policy more
broadly, both in and outside the health sector, in efforts to improve popula-
tion health. This sense of urgency is due to recent and evolving developments
in the following areas: the sciences of public health; the economy (i.e., the
economic crisis and the great uncertainty and severe budget cuts faced by
governmental public health agencies); the social and legislative arenas (e.g.,
the Affordable Care Act); the functioning of public health (e.g., fragmenta-
tion of government response to public health issues, lack of interstate and
intersectoral coordination of policies and regulations); and the health of
the population (e.g., data on the increasing prevalence of obesity and poor
rankings in international comparisons of major health indicators).
In the report’s second chapter, the committee examines the laws that
codify the mission, structure, duties, and authorities of public health agen-
cies. The chapter also examines the loci—federal, state, and local—of
government action to manage different types of health risk, as well as the
interaction among the levels of government. In the third chapter, the com-
mittee discusses statutes, regulations, and court litigation as tools specifically
designed to improve the public’s health. In the fourth chapter, the report
explores non-health laws and policies that are enacted or promulgated in
other sectors of government, but have potentially important impacts on the
public’s health. These include public policy in areas such as transportation,
agriculture, and education. Numerous examples of policies adopted in vari-
ous sectors of government have had unintended consequences for health.
These include (1) agricultural subsidies that spurred the development of
inexpensive sweeteners, which are a key component of nutrient-poor foods
and beverages, and (2) a national education policy that has led to diminished
and even nonexistent physical education in schools.1 The chapter discusses
the intersectoral nature of the influences on the public’s health, and refers
to structured ways to consider health outcomes in all policymaking—a
“Health in All Policies” (HIAP) approach. This approach takes into account
health-producing or health-harming activities in all parts of government, as
well as those of private sector actors. In this chapter, the committee also
continues its discussion of the broad determinants of health begun in its
first report, but now in the context of legal and policy interventions, many
located outside the health sector or involving multiple sectors. The chapter
ends with a discussion of the evidence needed for “healthy” policymaking.
The report’s key messages focus on three major areas. First, the com-
mittee finds that laws and public policies that pertain to population health
warrant systematic review and revision, given the enormous transforma-
tions in the practice, context, science, and goals of public health agencies
1 For
a discussion of the effect of the No Child Left Behind policy on physical education in
schools, see http://sports.espn.go.com/espn/otl/news/story?id=4015831.
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SUMMARY
and changes in society as a whole. Second, the committee urges government
agencies to familiarize themselves with the toolbox of public health legal
and policy interventions at their disposal. Also, the report discusses evidence
of the effectiveness of legal and policy tools, as well as efforts to advance
the science needed to inform policymaking to improve the public’s health.
(The effectiveness of policy interventions is especially noteworthy against a
backdrop of current and future economic exigencies and the high premium
placed on efficiency and accountability.) Third, the committee encourages
government and private sector stakeholders to explore and embrace HIAP
for their synergistic potential. The consideration of health in a wide range
of public- and private-sector policymaking will lead both to improvements
in population health and to the achievement of priority objectives in other
sectors, such as job creation and educational reform, and a more vibrant and
productive society. The report offers 10 recommendations and a conclusion
to address the challenges it identifies and enhance the use of law and public
policy to improve population health.
RECOMMENDATIONS
Public health statutes—the laws that define the authorities and roles
of federal, state and local public health agencies—were enacted when
major population health threats were due to hygiene factors (water, food,
sanitation), communicable diseases, public safety issues, maternal and child
health challenges, and occupational injury and illness. The contemporary
burden of disease has shifted increasingly to chronic conditions and injuries
as infectious disease declined, but the evolving physical, social, and built
environments have contributed new challenges. In addition to the health
hazards of another era, older public health laws currently “on the books”
were informed by the scientific standards of the day and the statutory con-
text and constitutional jurisprudence of their time, including conceptions of
individual rights. Some laws were enacted in piecemeal fashion in reaction
to contemporary epidemics, leading to layers of statutory accretion rather
than holistic or comprehensive legislation (Gostin et al., 2008).
Two major efforts to review and update public health law took place
around the turn of the 21st century. These were the Turning Point Model
State Public Health Act (1997–2003) and the Model State Emergency
Health Powers Act (MSEHPA) (2001–2002). The Turning Point Model
Public Health Act was a broad (though not comprehensive) model law com-
posed of nine articles and incorporating two other model acts—a revised
version of the MSEHPA in the article pertaining to emergency powers, and
the Model State Public Health Privacy Act (Gostin et al., 2001, 2002). De-
spite the development and dissemination of these model acts, their use for
widespread updating or modernization of public health statutes has been
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4 FOR THE PUBLIC’S HEALTH: REVITALIZING LAW AND POLICY
limited. Most public health law in jurisdictions today remains grounded in
late 19th and early 20th century experiences. The Turning Point Model State
Public Health Act and the Model State Emergency Health Powers Act drew
on actual high-quality laws already in place in various jurisdictions around
the country, and could continue to serve as benchmarks (i.e., legal best prac-
tices) in the process of reviewing and updating enabling statutes. Efforts may
be made to identify statutory benchmarks in additional areas not explicitly
covered in the existing model acts, such as performance measurement and
accreditation, and contemporary leading causes of disease and death.
Recommendation 1: The committee recommends that state and lo-
cal governments, in collaboration with their public health agencies,
review existing public health laws and modernize these as needed to
assure that appropriate powers are in place to enable public health
agencies to address contemporary challenges to population health.
The 10 Essential Public Health Services (10 EPHS) (see Box S-1) are
widely accepted and often incorporated into public health practice and in
current strategies to measure and improve public health performance. How-
ever, the 10 EPHS are generally not incorporated into public health agency
that enables statutes as standard of practice in public health (Meier et al.,
BOX S-1
The 10 Essential Public Health Services
1. Monitor health status to identify and solve community health problems.
2. Diagnose and investigate health problems and health hazards in the
community.
3. Inform, educate, and empower people about health issues.
4. Mobilize community partnerships and action to identify and solve health
problems.
5. Develop policies and plans that support individual and community health
efforts.
6. Enforce laws and regulations that protect health and ensure safety.
7. Link people to needed personal health services and assure the provision
of health care when otherwise unavailable.
8. Assure a competent public and personal health care workforce.
9. Evaluate effectiveness, accessibility, and quality of personal and popula-
tion-based health services.
10. Research for new insights and innovative solutions to health problems.
SOURCE: Public Health Functions Steering Committee (1994).
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SUMMARY
2009). Exceptions are largely found in states that have updated their statutes
(Meier et al., 2009). The committee believes all communities deserve access
to the public health protections and services embodied in the language of
the 10 EPHS and codified in the referenced model acts.
Changes in agency structure and organization are necessary to enable
all jurisdictions to provide access to the full array of public health services.
The wide range of programs and interventions that are consistent with op-
erating under the 10 Essential Public Health Services can be (and in some
cases are being) delivered directly by the state health department, by each
local health department, by public health system partners, or by various
permutations thereof including through centralization, regionalization, or
interjurisdictional compacts among different agencies.
Many local public health agencies are small and have limited capabili-
ties. Proposals have been made to explore different ways to reorganize lo-
cal public health structure toward greater effectiveness, including through
organizational restructuring, such as consolidation of services among public
health agencies (IOM, 2003). However, multiple formidable barriers exist to
such actions including state constitutions and court rulings as well as statu-
tory requirements of local and state governments (Baker and Koplan, 2002;
IOM, 2003; Libbey and Miyahara, 2011). These legal impediments urgently
need to be re-examined and revised to improve the effective use of existing
public health resources and broaden the impact of needed investments.
Recommendation 2: The committee recommends that states enact
legislation with appropriate funding to ensure that all public health
agencies have the mandate and the capacity to effectively deliver the
Ten Essential Public Health Services.
Public health accreditation has been discussed for decades in the U.S.
public health community, and many public health agencies have engaged
in a variety of certification, accreditation, and performance measurement
activities at the national, regional, and local levels. However, public health
is far behind its clinical care system counterparts in implementing accredita-
tion standards as uniform measures of performance. Despite a rich literature
on health care accreditation, the empirical evidence for accreditation cor-
relations between accreditation and performance is uneven, with modest
positive findings for certain outcomes (e.g., promoting change through the
self-evaluation that occurs in preparation for accreditation).
Nevertheless, the field of accreditation is moving in the direction of
better data collection and more research. The committee believes that na-
tional public health accreditation, which is evolving and is not yet a mature
process, holds the potential of becoming a mechanism toward certifying
that an agency’s delivery of the core public health functions and 10 EPHS
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6 FOR THE PUBLIC’S HEALTH: REVITALIZING LAW AND POLICY
meets uniform standards, and at a future date, perhaps, can be positioned
to certify that they are executed with excellence.
The public health accreditation movement shares elements with many
activities in and outside the public sector. These include measurement and
reporting of performance, transparency in operations, and accountability
for process and outcome. These contemporary values are reflected in the
Government Performance and Results Act of the 1990s and in the current
administration’s Open Government Initiative. Existing public health statutes
often do not reflect current demands for accountability and its relationship
to the structure, function, and authority of public health agencies. As dis-
cussed in the committee’s first report, it is necessary to integrate account-
ability into the way public health agencies and their partners perform their
functions.
For the reasons described—the widespread use of accreditation in health
care, and the public and policymaker familiarity with the notion; the need
for a higher level of accountability and transparency; and the potential
usefulness of accreditation in improving quality and other outcomes—the
committee finds that national accreditation holds promise as a conduit in
aiding governmental public health agencies to demonstrate minimum struc-
tural and quality process capabilities.
Recommendation 3: The committee recommends that states revise
their laws to require public health accreditation for state and local
health departments through the Public Health Accreditation Board
accreditation process.
Several states have their own accreditation processes in place. These should
resemble or be as rigorous as those set by the Public Health Accreditation
Board. All states should set goals to have these standards in place no later
than 2020.
Legal Capacity
Appropriately trained legal counsel needs to be readily accessible for all
policy discussions in public health agencies to facilitate clear understanding
of the legal basis for public health initiatives or interventions. The increas-
ing availability of legal technical assistance from several existing national
academic or not-for-profit sources, while beneficial, cannot take the place of
an official legal advisor who is recognized by, and part of the same team as
the health officer and the jurisdiction’s chief executive. The committee recog-
nizes that many agencies are too small to have their own dedicated counsel,
and that some type of resource-sharing arrangement, aside from broader
restructuring such as consolidation or regionalization, would be needed.
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SUMMARY
Public health agency legal counsel requires training in public health and
in public health law. Attorneys counseling public health agencies also must
possess knowledge and experience in the following areas: laws that estab-
lish the public health agency and set forth its jurisdiction and authorities,
programmatic aspects of the agency’s work, and procedures and processes
consistent with applicable laws and policies. Such training, knowledge, and
experience can be obtained through adequate career ladders within a health
department, through education or, ideally, through a combination of both.
One of the prerequisites for strengthening public health law capacity in
health departments is the availability of legal training in schools of public
health (for example, for individuals wishing to pursue a JD/MPH, and for
other public health students) and in schools of law for individuals interested
in public policy, and especially its health dimensions.
Recommendation 4: The committee recommends that every public
health agency in the country have adequate access to dedicated
governmental legal counsel with public health expertise.
Federalism and Preemption
“Preemption occurs when a higher level of government restricts, or
even eliminates, a lower level of government’s ability to regulate an issue”
(NPLAN and Public health Law Center, 2010, p. 1). Preemption can ad-
vance or impede the achievement of population health objectives. States and
localities play a vital and historic role in safeguarding the public’s health
and safety. They can be “laboratories” of innovation, with greater flexibility
than at the national level. Consequently, unless there are compelling reasons
to the contrary, the federal government ought not preempt state and local
authority in advancing the public’s health. A provision of the Affordable
Care Act, for example, preempts state and local authority to require menu
labeling in restaurants and vending machines that diverges from (e.g., is
stricter than) the federal standards outlined in the Act. Although federal
oversight of food manufacturing and processing may be appropriate because
of its close nexus to interstate commerce, restaurants are locally regulated
relative to sanitary standards and are locally permitted establishments. Oth-
er federal statutes, like the Health Insurance Portability and Accountability
Act, create a national protective floor, but allow the states to enact stricter
standards. This kind of “floor preemption” is usually preferable, enabling
states and localities to enact more protective public health regulations.
Preemption in the field of public health may also lead to non-enforce-
ment of a preemptive federal standard. When a federal agency is given pre-
emptive authority to regulate in an area where local public health agencies
have a greater capacity and infrastructure to regulate, the result is likely to
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8 FOR THE PUBLIC’S HEALTH: REVITALIZING LAW AND POLICY
be that the public health measure will not be enforced. In such instances
preemption, and certainly “ceiling” preemption, should be avoided or ar-
rangements for local enforcement should be put in place.
When considering the appropriateness of preemption the impact on
public health and enforceability must be assessed. As the federal government
embarks on a regulatory review to determine whether federal regulations
unnecessarily hamper business activity, the committee urges that this prin-
ciple be upheld and efforts be made to avoid creating new or interpreting
existing preemptive laws in ways that may have unintended and unhealthful
consequences.
Recommendation 5: The committee recommends that when the
federal government regulates state authority, and the states regulate
local authority in the area of public health, their actions, wherever
appropriate, should set minimum standards (floor preemption) al-
lowing states and localities to further protect the health and safety
of their inhabitants. Preemption should avoid language that hinders
public health action.
Some recent legislation, such as the Affordable Care Act’s establish-
ment of menu labeling requirements, extends particular public health
protections nationally, but also vests the Food and Drug Administration
with regulatory authority over facilities it has not previously regulated,
such as food service establishments that have been in the purview of state
or local public health agencies. In these types of settings, the federal agency
is unable to adequately enforce these requirements. Furthermore, federal
efforts would be duplicative of state or local enforcement. Statutes and
regulations need to allow public health agencies to enforce standards as
necessary to protect and promote the public’s health. Collaborative efforts
are needed to facilitate enforcement of federal standards by states or lo-
calities. However, mandating that states and localities assume this federal
responsibility would not be helpful unless they have adequate funding to
do so.
Recommendation 6: The committee recommends that federal agen-
cies, in collaboration with states, facilitate state and local enforce-
ment of federal public health and safety standards, including the
ability to use state or local courts or administrative bodies where
appropriate. Federal, state, and local agencies should combine
their resources, especially in areas where regulatory authority is
vested in one level of government, but enforcement capacity exists
in another level.
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SUMMARY
Intersectoral Laws and Policies That Contribute to the Public’s Health
Significant and compelling evidence indicates that policies enacted by
government agencies beyond the health sector have substantial effects on the
health of the population. A Health In All Policies approach requires poli-
cymakers, with the support of public health agencies, to adopt a collabora-
tive and structured approach to consider the health effects of major public
policies in all governmental sectors. This “all-of-government” approach
offers the benefits of improving health while also achieving key objectives
in other parts of government. Seen from the perspective of other sectors,
HIAP approaches could enhance their ability to achieve their own objectives
because improvements in population health can have wide-reaching effects
on many aspects of society.
A multi-sector strategy that explicitly considers the impact of non-
health sector action on US health can create progress in that sector (e.g.,
transportation, agriculture) while simultaneously increasing the quality of
life, longevity and economic productivity of the population.
Recommendation 7: The committee recommends that states and
the federal government develop and employ a Health In All Policies
(HIAP) approach to consider the health effects—both positive and
negative—of major legislation, regulations, and other policies that
could potentially have a meaningful impact on the public’s health.
As acknowledged in the committee’s report on measurement, there is no
formal accountability process for private-sector entities that influence, for
good or bad, the health outcomes for the community (IOM, 2011). This is
significant because an estimated one-third of overall public health expendi-
tures are incurred by nongovernmental public health partners, such as em-
ployers and schools (Mays et al., 2004). Although the committee proposed
a measurement framework for accountability in its first report, it did not
discuss in any detail the issues of governance and the types of organizational
structures that may be useful in operationalizing the framework, especially
outside governmental agencies.
As noted in the first report, private sector employers, community or-
ganizations, and other stakeholders in the multisectoral health system can
contribute to health through their actions including through policy. These
actions range from employee health and wellness initiatives to efforts to
strengthen potentially health-enhancing features of communities. In its
present discussion about law and policy, the committee uses the model of
the National Prevention, Health Promotion, and Public Health Council
and its associated public-private advisory group as a point of departure for
envisioning how intersectoral action on population health could be planned
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10 FOR THE PUBLIC’S HEALTH: REVITALIZING LAW AND POLICY
and implemented across government agencies and between the public and
private sectors.
Recommendation 8: The committee recommends that state and
local governments
• create health councils of relevant government agencies convened
under the auspices of the chief executive;
• engage multiple stakeholders in a planning process; and
• develop an ongoing, cross-sector, community health improve-
ment plan informed by a HIAP approach. Stakeholders will ad-
vise in plan development and in monitoring its implementation.
Evidence to Inform Policy
The rationale for all population health interventions, including laws,
must be based on the best evidence available while taking into consideration
the strength of the available evidence, the level of uncertainty surrounding
the evidence, and the risk of harm (economic or health-related) that arises
from implementing or failing to implement. In some cases, the best available
evidence may be limited. In those cases, new laws and judicial review of
public health legal interventions will need to be built on sound theory and
the opinion of content experts. Such limited evidence may be used to craft
legal interventions when health threats and potential harms from inaction
are large; when opportunity costs and unintended harms from action are
within acceptable limits; and when the time or costs required for gathering
more definitive evidence are substantial relative to the expected value of the
additional evidence.
In some cases, assessments of health impact may not be necessary or
useful, such as in the cases of modest-sized commercial developments in
a community or policies that are largely unrelated to or expected to have
negligible health impacts. In other cases, assessing the impact is imperative
to determine a policy’s likely extent of negative or positive effects on popula-
tion health and to take action to avert damaging consequences. Such cases
would include several major health-consequential federal laws that require
periodic reauthorization (e.g., the transportation bill).
Accurate and complete assessment of the outcomes and benefits of
public health laws is complicated by the fact that the effects of laws are
frequently distributed across multiple segments within the population, and
affect multiple health and social endpoints over long periods of time. Thus,
outcome measures for public health laws need to consider not only mea-
sures of mortality and morbidity, but also important intermediate outcome
measures.
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SUMMARY
Legal interventions merit study for their effectiveness and comparative
effectiveness (both against other legal intervention and compared to other
kinds of interventions). Furthermore, a system of surveillance could be
developed and pilot-tested to track the progress of efforts to expand the
geographic reach of effective policies and laws, and to identify unmet needs
for policy development and advocacy strategies. Although the administra-
tive and methodological task of such research is challenging, the committee
asserts as a general principle the obligation of policymakers to study, to
whatever degree possible, the potential ramifications of policies in any sector
that could substantially affect the health of the public.
Recommendation 9: The committee recommends that state and
federal governments evaluate the health effects and costs of major
legislation, regulations, and policies that could have a meaningful
impact on health. This evaluation should occur before and after
enactment.
This recommendation applies to both public health and non-public health
agencies, working in concert. Before or after enactment, a scientific assess-
ment would be conducted whenever possible. Before enactment of such
policies, the vested authority (e.g., the public health agency) would study
the potential health impact and/or cost-effectiveness. After enactment, the
authority would review the health outcomes and costs associated with
implementation of the policy and would, where appropriate, offer recom-
mendations to the chief executive and legislature on changes that would
improve outcomes.
Such evaluation and assessment could be conducted by the responsible
agency, such as through National Environmental Policy Act (NEPA) require-
ments, or by the public health agency. Several models exist for requiring
and conducting assessments of health policy impact, including government
commissioning of assessments (e.g., actuarial analyses) of the impact of all
health policies, and the requirements of NEPA. A knowledge base exists
for crafting an accepted framework for evaluating the evidence of public
policies, but an interdisciplinary team of experts is needed to build on the
existing literature, review methodological challenges, and arrive at a con-
sensus on preferred criteria.
Recommendation 10: The committee recommends that HHS con-
vene relevant experts to enhance practical methodologies for assess-
ing the strength of evidence regarding the health effects of public
policies as well as to provide guidance on evidentiary standards to
inform a rational process for translating evidence into policy.
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12 FOR THE PUBLIC’S HEALTH: REVITALIZING LAW AND POLICY
Such guidance would include (1) methods for assessing the certainty of
effectiveness (benefits and harms), and if a law or policy is effective, the
magnitude of effect, for suitable populations; (2) methods for assessing the
effectiveness of interventions (policies and programs) when used alone or
in combination (i.e., their incremental and or synergistic benefits); and (3)
priorities for and consideration of the contextual issues when determining
whether (and where) to implement policies. The contextual issues to be
considered include importance of the problem (severity, frequency, burden
of disease, cost), feasibility (affordability, acceptability), availability of alter-
natives, demand, fairness (equity), preferences and values, cost-effectiveness,
potential to advance other societal objectives, potential for harms, legal and
ethical considerations, and administrative options.
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