http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2001/11/25/MN232750.DTL

The administration wants all 50 states to adopt a law allowing public health authorities to take over hospitals, seize drug supplies, quarantine people exposed to infectious pathogens, draft doctors to treat them, force patients to be vaccinated, and order police to restrain residents from leaving contaminated areas.

The Centers for Disease Control and Prevention rushed out the proposed legislation, at the request of Health and Human Services Secretary Tommy Thompson, within weeks after the Sept. 11 hijackings and the ensuing anthrax attacks.

In California, Assemblyman Keith Richman, D-Granada Hills, has drafted a measure nearly identical to the CDC model and plans to introduce it early next year.

The restrictions on civil liberties that his bill would allow during a bioterror attack are bound to raise controversy, Richman acknowledged. But he said health officials must be allowed to resort to them if the nation faces an outbreak of smallpox, one of the worst possible biological weapons.

"Upwards of a third of the people who contract smallpox could potentially die," said Richman, a physician with a degree in public health. "We should have a public health law in place that could minimize that situation as much as possible."

Critics of the CDC proposal, however, say it threatens to create a public health "police state" that could spur people to panic and flee, helping to spread deadly germs farther afield.

"This law treats American citizens as if they are the enemy," said George Annas, chairman of the Health Law Department at the Boston University School of Public Health. 

CDC spokesman Tom Skinner said the agency commissioned the model statute well before Sept. 11 because a patchwork of antiquated state laws needed to be updated. It accelerated the process after the attacks and anthrax mailings.

Simulations of bioterror attacks have indicated that an outbreak could result in confusion, interjurisdictional conflict and civil disorder, Skinner said.

One such simulation was the Dark Winter exercise conducted in June at Andrews Air Force Base, in which a mock president and National Security Council had to grapple with a fictional terrorist release of smallpox in Oklahoma. Within two weeks, the simulated outbreak had mushroomed to 16,000 "cases" in 25 states, hundreds of people were dead and panic riots were breaking out.

In that exercise, state leaders proved unprepared to invoke sweeping public health controls. Conflicts erupted between federal authorities favoring central command and state officials who felt they should decide whether to impose quarantines, order vaccinations and shut down transportation.

INEFFECTIVE STATE LAWS

Lawrence Gostin, the Georgetown University law professor who helped draft the CDC model, said many state public health laws not only lack the powers that officials would need, but would actually make it harder to carry out such crucial steps as making sure suspected bioterror victims are reported to health authorities.

At the same time, he said, many of the laws dating from the late 19th or early 20th centuries do not include up-to-date civil rights safeguards.

"This (model) law gives far more protection of civil liberties than there is in existing law," he said.

Civil rights protections, however, are exactly what opponents find lacking. The kind of public health emergency that would trigger extraordinary powers for health officers is defined so broadly that it could include AIDS, HIV infection or a severe flu epidemic, said Tanya Ehrmann, director of public policy at the activist group AIDS Action in Washington, D.C.

Annas said that under the legislation, people could be detained without a court order and isolated in stadiums or clinics without an adequate process to challenge the decision. The proposed law would also shield health officers from liability, along with anyone working at their direction, for deaths or health damage suffered by quarantined bioterror victims, he said. 

Under the measure, "if you kill people or hurt them, that's tough," said Annas, one of 10 New England health law scholars urging Thompson to change the draft law. "The families can't sue, nobody can sue." 

Joanne Hustead, senior counsel at the Health Privacy Project at Georgetown University, said the CDC proposal is an important effort to strengthen public health laws. But she said the broad definition of a health emergency would allow the collection and sharing of protected private health information under circumstances that don't involve bioterrorism.

In California, such issues could be worked out as Richman's bill is considered in the Legislature, said Bruce Pomer, executive director of the Health Officers Association of California.

Existing California laws authorize health officers to take measures such as quarantining tuberculosis patients who fail to take medication, or requiring certain vaccinations for schoolchildren. But Pomer said the state may need to reconsider civil rights safeguards that could hamper health officials in a bioterror attack.

PRIVACY CONCERNS

Placer County public health Director Richard Burton, president of the Health Officers Association, said AIDS and HIV-positive patients have won safeguards against having their identities revealed to health authorities, and that such protections should be spelled out for them in Richman's legislation.

Kevin Reilly, deputy director for prevention services at the state Department of Health Services, said the agency is reviewing the model law and has not yet taken a position on it. Gostin and his co-authors are reviewing comments on the draft law and will release a modified version by Dec. 12.

Mohammad Akhter, executive director of the American Public Health Association, said the organization will consider its position on the CDC model law at a Dec. 17 meeting. But he said that in general, public health officials need more resources rather than more legislation.

"If you don't have the early warning system, the training of doctors, nurses and paramedics, and the capability of hospitals to take care of patients exposed, no amount of legislation is going to protect our people," Akhter said. "You have to focus on the right things."

E-mail Bernadette Tansey at btansey@sfchronicle.com.