Dawn Pepin

Transitioning from Paper to Digital: State Statutory and Regulatory Frameworks to Address Health Information Technology

Objectives: In all health system sectors, electronic health information (EHI) is created, used, released, and reused. We examined states’ efforts to address EHI uses in law to provide an understanding of the EHI legal environment. Methods: Attorney researchers used WestlawNext to search for EHI-related statutes and regulations of the US states, US territories, and the District of Columbia in effect as of January 2014. The researchers independently catalogued provisions by the EHI use described in the law. Researchers resolved discrepancies through peer review meetings and recorded the consensus codes for each law. Results: This study identified 2364 EHI-related laws representing 49 EHI uses in 54 jurisdictions. A total of 18 EHI uses were regulated by ≥10 jurisdictions. More than 750 laws addressed 2 or more EHI uses. Jurisdictions varied by the number of EHI laws in effect, with a mean of 44 laws. Texas had the most EHI laws (n = 145). Hawaii and South Carolina had the fewest (n = 14 each). Conclusions: The EHI legal landscape is complex. The large quantity and diversity of laws complicate legal analysis, likely delay implementation of public health solutions, and might be detrimental to the development of emerging health information technology. Research is needed to understand the effect of EHI-related laws.

Legal Authority for Mosquito Control and Pesticide Use in the United States

Mosquito-borne diseases are a threat globally and in the United States. For instance, in the United States, the West Nile virus first appeared in 1999 and has since spread throughout the country, causing >43 937 cases as of 2015. Recently, 2 other mosquito-borne diseases, dengue virus and chikungunya virus, were locally transmitted in the continental United States for the first time. Now, with the increase in Zika virus transmission—including 4752 travel-associated cases and 220 locally acquired cases in the United States as of February 7, 2017—public health officials face the challenge of instituting effective mosquito control programs and making decisions about pesticide use. One question confronting public health officials is this: who has the legal authority for mosquito control in the United States, particularly for pesticide use and regulation? Is it the states or the federal government? The answer to this question is rooted in federalism, the scheme by which the legal authority is divided between the states and the federal government. By the earliest days of English colonial government in America, the colonies had inherited from the English King in Parliament their police powers, the natural plenary power of a sovereign state to regulate private interests for the public good, usually toward defending the health and welfare of their populations. When the Articles of Confederation were formed in 1781, the states were reluctant to give too many of these powers to a national government; thus, they retained individual authority to regulate all issues, except for a very few, including declaring war, trying pirates for crimes committed at sea, and conducting foreign policy and commerce. When the states met at the Constitutional Convention in 1787 to amend and improve the articles, they decided that a new national government was needed. The states ceded more authorities to the national government, and these authorities were expressly enumerated in article 1, section 8, of the US Constitution. These enumerated powers include, among others, the authority to raise taxes and regulate interstate commerce. The states retained all of the authority that they held prior to the US Constitution that was not expressly enumerated to the federal government. Later, in 1791, the Tenth Amendment to the Constitution recognized this reservation of authority: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The US Supreme Court, in Jacobson v Massachusetts in 1905, reiterated that the states’ police powers include public health, holding, under a theory of self-defense, that “a community has the right to protect itself against an epidemic of disease.” As a result, states generally have the primary authority to address public health matters within their own borders, including the authority to control mosquito-borne diseases. States have a long history of intervening to control mosquito-borne diseases, beginning with outbreaks of yellow fever and malaria, and courts have supported their legal power to do so. In Paris v City of Philadelphia, the court acknowledged that “one of the most unfailing and prolific means of transmitting infectious diseases is in the development of larva, flies, mosquitoes and other disease-bearing insects” and that “it is only by rigid inspection of premises, and enforced hygienic regulation that these dangers can be controlled and minimized.”