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Commonwealth:  A Journal of Political Science       Volume 14, Number 1      December 2008 
Special Policy Issue on Public Health             2008 PPSA/LORL, PA House of Reps.  ISSN 0890-2410 

 

 

 
Crisis in the Making: What’s Wrong with 

Pennsylvania Public Health Law 
 
 

John A. Bozza, Judge of the Court of Common Pleas, 
Sixth Judicial District, Commonwealth of Pennsylvania 

 
 

Acknowledgement 

The author would like to extend his gratitude to the Hon. John M. 
Cleland, President Judge of McKean County and a national advocate for 
a broader understanding of the role of the judiciary in matters of public 
health, for his critical and most insightful review of this manuscript. 

 

  There are few areas of government enterprise where the need to “get 
it right” is so critical as formulating and executing laws affecting the 
public health. When the government sets out to exercise its police power1 
to control the spread of disease, its goal is to accomplish an immensely 
important practical task and its success is to a great degree objectively 
determinable; the spread of disease is either curtailed or not.  However, 
the manner in which the government’s goal is reached reflects not only 
its pragmatic concerns but also a society’s political, social and legal 
values.  

 Recent attention to matters of public health in the area of infectious 
disease has brought to the fore both the nature and effectiveness of the 
federal government’s response to incidents of contagious disease both 
actual and anticipated. In 2003, Severe Acute Respiratory Syndrome 
(SARS), a contagious viral disease, seemed to rapidly spread throughout 
a number of countries, including Canada and to a lesser degree the 
United States (Centers for Disease Control 2003; Mason 2003; Reich 
2003).  Beginning in 2003 with reports of outbreaks in various parts of 
the world, much attention has been focused on what is generally referred 
to as “bird flu” and commonly identified as avian influenza. There are a 
number of variants of avian flu virus but the H5N1 virus has caused the 
most concern among public health officials with regard to transmission 



24 CRISIS IN THE MAKING:  WHAT’S WRONG WITH PENNSYLVANIA PUBLIC 
HEALTH LAW 

 
 

 

to humans (Centers for Disease Control and Prevention 2008; O’Leary 
2006; Pennsylvania Department of Health 2008).2 It was widely 
suggested that should an outbreak of the bird flu materialize, it could 
lead to a worldwide epidemic or as it was described, a “pandemic,” and 
result in a great loss of human life (MSNBC 2005; Centers for Disease 
Control and Prevention May 28, 2008).  This concern led to considerable 
activity among public health officials throughout the world and was the 
subject of intense attention in the federal government’s public health 
community largely centered at the Centers for Disease Control. 
Gratefully, no worldwide outbreak, or for that matter, even a significant 
local outbreak, of bird flu in humans in the United States seems to have 
developed and anecdotally, there seems to have been a noticeable 
diminution of public attention to the pandemic issue (Centers for Disease 
Control and Prevention 2008). 

 Most recently the public’s attention has been brought to bear on the 
activity of an American whose wedding celebration was interrupted by 
an international incident precipitated by his contraction of tuberculosis.  
Andrew Speaker’s reported failure to adhere to a United States 
government request to refrain from international airline travel resulted in 
a great deal of attention to the potential risks associated with an 
individual’s reluctance to refrain from public interaction in 
circumstances where he or she has a serious, perhaps life-threatening 
communicable disease (Schwartz 2007). While Mr. Speaker eventually 
complied with a federal government request for isolation and treatment, 
and it was ultimately determined that the government’s belief that he had 
the most drug resistant form of tuberculosis was wrong, the episode 
brought to the public light the difficulties that the government may 
encounter when trying to curb a perceived public health threat. 

 While the public’s attention to both episodes has diminished and 
government’s concern for an imminent outbreak of a human bird flu 
pandemic has moved off the front page, each has served as a much-
needed impetus for the examination of the sufficiency of public health 
law and policy.  From both a practical and legal perspective, public 
health is one of those areas of human endeavor that tends to receive 
attention only when things are going badly.  Indeed it is the absence of 
experience, and in particular recent experience, that makes preparation 
for a public health crisis so challenging and what, quite understandably, 
results in a largely untested legal framework replete with unanswered 



John A. Bozza         25 
 
 
 

 

questions and therefore the potential for considerable confusion (Batlan 
2007).3  

 This article is intended to highlight significant legal issues associated 
with the current state of public health law in Pennsylvania that may have 
adverse practical consequences on the government’s ability to effectively 
respond to a public health crisis. While the need to update state public 
health laws has long been recognized (see generally, Gostin, Burris and 
Lazzarini 1999), there has been almost no movement in that direction in 
Pennsylvania. Revisions to Pennsylvania law are necessary to assure that 
the response to a perceived public health emergency is not impaired by 
legal uncertainty and that citizens are protected from arbitrary 
government action. Perhaps it will be accomplished before the crisis 
begins. 

Although Pennsylvania’s public health law framework is the focus of 
discussion, it is likely that the issues that are addressed have some 
applicability in other state jurisdictions and the federal government.  
Indeed there is an ongoing concern about the interrelationship between 
federal and state authority in the public health law arena, especially as it 
applies to the spread of communicable disease. Although recent public 
health events have served as a reminder of the potential need for a 
coordinated national and ideally an international effort, to curb threats to 
the public health, the vital role of state and local governments in this area 
of the law and public policy has long been recognized (Gostin, Burris 
and Lazzarini 1999; Weeks 2007).4 And given the overlapping 
jurisdiction of state and federal governments in such important matters as 
ordering quarantines, the need for well-conceived state statutes will 
remain a compelling consideration for state legislatures (Batlan 2007, 59; 
Chen 2005).5  It must also be recognized that although there have been 
efforts to formulate model acts (Gostin et al. 2002; Turning Point Model 
State Public Health Act 2003), these initiatives have not been without 
significant criticism and may well have some of the same limitations as 
are addressed below (Chen 2005, 168-173).6 

With that backdrop, it is this author’s objective to critically review 
Pennsylvania’s public health law using a conceptual methodology that 
focuses on the practical consequences of flaws in legislative enactments 
and administrative regulations that may limit the effectiveness of the 
government’s response to a public health crisis or unduly complicate it.  



26 CRISIS IN THE MAKING:  WHAT’S WRONG WITH PENNSYLVANIA PUBLIC 
HEALTH LAW 

 
 

 

In that regard it is suggested that any review of public health law 
requires, at a minimum, consideration of three key questions: 1) Which 
agencies or officials, collectively referred to as a Public Health Authority 
(PHA), are authorized or required to take action to prevent or control 
disease? 2)  Under what circumstances can a PHA take action? 3) What 
steps may a PHA take to respond to such a public health concern? While 
these inquiries serve as the framework for this analysis, they by no 
means constitute a comprehensive scrutiny of public health law. In 
particular, the issue of how a PHA enforces its directives through the 
judicial process is not addressed and this is ultimately a matter of critical 
importance left for another day (Daubert 2007; Chen 2005, 165, 186-
190).7  

 

The Current State of Pennsylvania Public Health Law 

 There are three primary sources of public health law in Pennsylvania 
that deal with the control of communicable disease: 1) The Disease 
Prevention and Control Law of 1955 (DPCL; 35 P.S. §511 et seq.); 2) 
The Counterterrorism, Planning, Preparedness and Response Act 
(“Counterterrorism Act;” 35 P.S. §2140 et seq.); and 3) Pennsylvania 
Health Department regulations set forth in 28 Pa. Code §27.1 et seq.  The 
DPCL includes a broad authorization for the State Advisory Health 
Board (Board) to issue rules and regulations concerning the prevention 
and control of both communicable and non-communicable diseases [35 
Pa. Stat. Ann. §521.16(a) 1-12]. Very few have been promulgated and so 
there is much about the application of the DPCL that remains uncertain. 
And those rules that have been formulated are more on the order of broad 
mandates rather than narrow prescriptions for government action.  
Moreover, the DPCL also allows certain municipalities to enact 
ordinances and regulations concerning the control and prevention of 
disease so long as they are not “less strict” than the provisions of the 
DPCL or rules and regulations [35 Pa. Stat. Ann. 521.16(c)].8 This 
exercise in limited state preemption sets the stage for considerable 
conflict and disparity.  Finally, case law interpreting or applying the key 
provisions of both the statutes and health department regulations is 
entirely absent.  

 Generally in Pennsylvania, local and state governments have been 
delegated the responsibility of controlling the spread of disease and have 



John A. Bozza         27 
 
 
 

 

been given broad discretionary authority to carry out their mandate.  
Specifically, the DPCL provides as follows:  

Responsibility for disease prevention and control. -- 

    (a) Local boards and departments of health shall be primarily 
responsible for the prevention and control of communicable and non-
communicable disease, including disease control in public and 
private schools, in accordance with the regulations of the board and 
subject to the supervision and guidance of the department. 
    (b) The department shall be responsible for the prevention and 
control of communicable and non-communicable disease in any 
municipality which is not served by a local board or department of 
health, including disease control in public and private schools (35 Pa. 
Stat. Ann. §521.3).9 

The Counterterrorism Act takes a markedly different approach from 
the DPCL. While its public health provisions are also intended to limit 
the transmission of a contagious or potentially contagious disease, it 
largely relies on the authority of the governor rather than local officials 
to take action (35 Pa. Stat. Ann. §2140.301).  In addition, it is based on 
the Model State Emergency Health Powers Act (MSEHPA) and its focus 
is multifaceted with limited attention devoted to contagious disease or 
epidemic. Furthermore, because government action is limited to 
circumstances involving a bioterrorist or biohazardous event, and neither 
term is defined, there is considerably less certainty in the 35 Pa. Stat. 
Ann. as to both the conditions that may give rise to government action 
and the character of the government’s response. 

The health department regulations add little to the clarification of the 
issues noted above with regard to the locus of responsibility for the 
public health decisions required by either the DPCL or the 
Counterterrorism Act. 

 

Who Can Take Action? 

 Government attempts to prevent the spread of communicable disease 
may very well necessitate action that significantly interferes with 
individual liberty and must always be based on sound judgment 
predicated on a high degree of scientific acumen. In turn, the 



28 CRISIS IN THE MAKING:  WHAT’S WRONG WITH PENNSYLVANIA PUBLIC 
HEALTH LAW 

 
 

 

government’s action has to be sufficiently accepted by the public to 
assure meaningful compliance and thus limit the scope of a public health 
threat. In such circumstances, clearly identifying the agencies or officials 
that are empowered to act to protect the public health is of critical 
importance. At a time of heightened public concern, not knowing who 
precisely is authorized to make potentially life-altering decisions, such as 
directing isolation or quarantine, or mandating diagnosis and treatment, 
could result in delayed or faulty action, potentially contradictory 
positions on the nature of the danger posed, or what must be done to 
respond to it, and a reluctance on the part of the community to follow 
directives or to accept the government’s position. In this regard, 
Pennsylvania law presents significant issues. 

The DPCL 

 In general, the DPCL specifies that certain local governmental 
entities have the responsibility to act “for the prevention and control of 
communicable and non-communicable disease” (35 Pa. Stat. Ann. 
§521.3). These PHA’s are identified as “local boards and the departments 
of health” (35 Pa. Stat. Ann. §521.3). They are in turn defined as “(t)he 
board of health or the department of health of a city, borough, 
incorporated town or township of the first class, or a county department 
of health, or joint county department of health” (35 Pa. Stat. Ann. 
§521.2).  In circumstances where a municipality is not served by one of 
these entities, the state Department of Health (the “department”) is 
responsible for this mission (35 Pa. Stat. Ann. §521.3b).  

There is, however, an important caveat to the exercise of public 
health responsibilities by a local PHA.  The DPCL requires that a local 
PHA is “subject to the supervision and guidance” of the state Department 
of Health suggesting that it is the state Department of Health that is the 
true decision-maker [35 Pa. Stat. Ann. §521.3(b)]. This begs the question 
as to whether the Department can either compel a local authority to act or 
forbid it from doing so or alternately simply shape the character of a 
local PHA’s response to a public health issue. This role ambiguity has 
the potential for leading to divergent positions or strategies and 
diminishing the public’s confidence in decision-makers.   

In addition, the DPCL provides that in certain instances, designated 
individuals are authorized to take action. Specifically the DPCL refers to 
“local health officer,” “a local qualified medical health officer,” “the 



John A. Bozza         29 
 
 
 

 

local medical health officer,” and the Secretary of Health as persons who 
can carry out activities set forth in the act. For example, §521.7 directs 
that “a local qualified medical health officer” require an infected person 
“to undergo a medical examination and any other approved diagnostic 
procedure” (35 Pa. Stat. Ann. §521.7). This person also has the authority 
to cause an individual who refuses examination or diagnosis to be 
quarantined (35 Pa. Stat. Ann. §521.7). However, it is left entirely to 
speculation as to who qualifies as “a local qualified medical health 
officer.” There is similar uncertainty regarding the identity of “the local 
medical health officer” who is authorized to isolate an infected person 
who refuses treatment (35 Pa. Stat. Ann. §521.11).10 A “local health 
officer” is defined as the head of a local department of health (35 Pa. 
Stat. Ann. §521.2). No definition of the other designations is provided 
(35 Pa. Stat. Ann. §521.2). Although not defined, the reference to the 
Secretary of Health is apparent. 

The Counterterrorism Act 

Under the Counterterrorism Act this issue is far less complicated.  In 
circumstances involving a public health emergency, the governor is 
designated as the primary decision-maker and is authorized to 
temporarily isolate or quarantine an individual or group under specified 
circumstances [35 Pa. Stat. Ann. §2140.301(a)]. Moreover, the 
“department or local health department” is authorized to petition the 
court for continuing isolation or quarantine [35 Pa. Stat. Ann. 
§2140.301(b)].  Both terms are defined.  The “department” is defined as 
the Commonwealth Department of Health, and “local health department” 
as a county department of health under the Local Health Administration 
Act or certain municipal health departments (35 Pa. Stat. Ann. 
§2140.102).   

Health Department Regulations   

Under the regulations promulgated pursuant to the DPCL, action to 
protect the public health may be taken by either the Department of 
Health or by a “local health authority” which in turn is defined as “a 
county or municipal department of health, or board of health of a 
municipality that does not have a department of health. The term 
includes a “sanitary board” (28 Admin. Code, §27.1). In that respect the 
regulations are similar to the provisions of the DPCL.  It is noteworthy, 
however, that the regulations require that if a local health authority 



30 CRISIS IN THE MAKING:  WHAT’S WRONG WITH PENNSYLVANIA PUBLIC 
HEALTH LAW 

 
 

 

(LHA) is not a local morbidity reporting office (LMRO), the LHA must 
consult with the department before acting in certain instances.11 This 
provides some clarification about the circumstances when the 
Department must become directly involved in decision-making under the 
DPCL although there is no indication as to whether the duty to consult 
also requires a LHA to follow the Department’s advice. 

 

Under What Circumstances May a PHA Act? 

The government’s ability to take steps to protect the public health 
must be triggered by an event or circumstance implicating the prospect 
of a health risk. Both the DPCL and the Counterterrorism Act set forth 
criteria by which a public health authority (PHA) or the governor must 
determine the need for action.  Unfortunately, both statutes suffer from a 
lack of precision in this area and a tendency, particularly with the DPCL, 
to afford a PHA broad discretion in defining the circumstances under 
which action must be taken. 

The DPCL 

Under the DPCL, a PHA may be required to take action when it 
receives “a report of a disease which is subject to isolation, quarantine, or 
any other control measure” (35 Pa. Stat. Ann. §521.5).  Although the Act 
does not specify which diseases are subject to “control measures” a fair 
reading of the statute leads to the conclusion it must be a “... a venereal 
disease, tuberculosis or any other communicable disease” (35 Pa. Stat. 
Ann. §521.2).12  Communicable disease is broadly defined as:  

An illness due to an infectious agent or its toxic products which 
is transmitted, directly or indirectly, to a well person from an 
infected person, animal or arthropod, or through the agency of an 
intermediate host, vector of the inanimate environment [35 Pa. Stat. 
Ann. §521.2(c)].  

Venereal disease is not defined.13 There is no further delineation of 
the characteristics of an “illness” that allow or require action.  
Specifically there is no requirement that the illness be serious or life 
threatening or rise to some level of contagion except that with regard to 
the isolation of an “infected” person, the disease must be in a 
“communicable stage” [35 Pa. Stat. Ann. §521.11(a)].14 (For the 



John A. Bozza         31 
 
 
 

 

purposes of this discussion, communicable disease includes tuberculosis 
but not venereal diseases. Both the DPCL and the regulations have a 
number of separate provisions applicable only to sexually transmitted 
diseases.) 

 The threshold issue is whether a PHA is compelled to act in a 
particular manner or whether its actions are discretionary and therefore 
more subject to disparity and perhaps, arbitrariness. In this regard, the 
DPCL has divergent and perhaps conflicting provisions. Directive 
language is utilized with regard to a PHA’s general responsibility under 
the Act.  Section 521.5 provides: 

Upon the receipt by a local board or department of health or by 
the department … a report of a disease which is subject to isolation, 
quarantine, or any other control measure, the local board, department 
of health or the department shall carry out the appropriate control 
measures in such a manner and in such a place as is provided by rule 
or regulation.   

While the need to act as prescribed by rule is unequivocal, there is 
obviously room for the exercise of discretion in selecting a control 
measure.15 This flexibility may be intended to accommodate the 
demographic and resource diversity of counties and municipalities. 

 Further indication of the directive orientation of the DPCL is found 
in §521.7, relating to examination and diagnosis, which provides that 
whenever a PHA has “reasonable grounds to suspect any person being 
infected … or being a carrier…,” the PHA shall require the person “to 
undergo a medical examination or other approved diagnostic procedure.”  
In this circumstance it is apparent that a PHA has no choice but to test 
persons it reasonably suspects as having a communicable disease.   

 The discretionary nature of a PHA’s responsibility is exemplified by 
§521.11(a.1), which provides that a PHA “may cause” a person who is 
infected with a communicable disease including a venereal disease to be 
isolated in an appropriate institution. While directed to take “control 
measures” under §521.5, the applicable PHA is not obligated to select 
any one in particular and is not required to either isolate or quarantine a 
person infected with a disease in a communicable stage.  Moreover, if it 
chooses to isolate an individual, the PHA has the discretion to select an 
“appropriate institution” [35 Pa. Stat. Ann. §521.11(a.1)].  



32 CRISIS IN THE MAKING:  WHAT’S WRONG WITH PENNSYLVANIA PUBLIC 
HEALTH LAW 

 
 

 

Finally, it is not clear under the DPCL whether a PHA is required to 
compel treatment for one diagnosed with a communicable disease.  
There is no provision in the Act that specifically sets forth such a 
requirement.  However, if it does require treatment, the character of the 
treatment is within its discretion as the Act only refers to “treatment 
approved by the department or by a local board or department of health” 
(35 Pa. Stat. Ann. §521.2).  Additionally, as will be discussed below and 
as would be expected, there is no discrete time limitation on how long a 
person may be subject to isolation by a PHA as the DPCL provides that 
isolation may last until a disease is rendered non-communicable (35 Pa. 
Stat. Ann. §521.2).  

The Counterterrorism Act  

 As noted above, it is the governor who is the prime actor under the 
35 Pa. Stat. Ann. and who is authorized to act only in a case of “an actual 
or suspected outbreak of a contagious disease or epidemic due to an 
actual or suspected bioterrorist or biohazardous event” [35 Pa. Stat. Ann. 
§2140.301(a)]. The governor’s actions are broadly discretionary, as the 
Act does not define any of these terms while providing that he or she 
“may” isolate or quarantine an individual or group [35 Pa. Stat. Ann. 
§2140.301(a)]. The failure to define the terms “biohazardous” and 
“bioterrorist” opens the door to a considerable range of scenarios that 
could give rise to action by the governor.  On the other hand, the statute 
limits the governor’s ability to act to circumstances where waiting for a 
PHA to pursue authorization for quarantine or isolation through judicial 
proceedings currently available, would jeopardize the Department’s 
ability to prevent or limit the transmission of a contagious or potentially 
contagious disease [35 Pa. Stat. Ann. §2140.301(a)]. 

 Perhaps most notable, the governor’s written order for isolation or 
quarantine can only last until a court reviews the matter and determines 
whether such an order shall continue. The government must file a 
petition for court review within 24 hours or the next business day 
following the governor’s order and a hearing must be conducted within 
72 hours of the filing of the petition. The court is authorized to extend 
the governor’s order up to 30 days. 

 

 



John A. Bozza         33 
 
 
 

 

Health Department Regulations 

Under the regulations, a PHA is authorized to engage in control 
measures when a person has a communicable disease or infection and it 
is “… necessary to protect the public from the spread of infectious 
agents” [28 Pa. Admin. Code §27.60(a)]. The definition of 
communicable disease is different from that provided in the DPCL: 

An illness which is capable of being spread to a susceptible host 
through the direct or indirect transmission of an infectious agent or 
its toxic product by an infected person, animal or arthropod, or 
through the inanimate environment (28 Pa. Admin. Code §27.1). 

Here the illness has to be one that “is capable of being spread to a 
susceptible host” while under the DPCL the language is arguably more 
limiting, requiring that the illness from an infectious agent be 
“transmitted, directly or indirectly, to a well person from an infected 
person…” [35 Pa. Stat. Ann. §521.2(c)].  While it is not clear what the 
term “susceptible host” encompasses, ostensibly it would include more 
than humans and thus the range of diseases subject to control measures 
under the regulations would likely extend to illnesses that are either 
confined to animals or transmitted from humans to animals. This 
interpretation is reinforced by §27.60 that provides that a PHA shall 
direct the isolation of “a person or an animal” with a communicable 
disease or infection (28 Pa. Admin. Code, §27.60(a); emphasis added).  

 The rules also potentially broaden a PHA’s authority to act by 
requiring the government to take control measures when a person or 
animal has a communicable “infection,” as opposed to a communicable 
disease. The legal distinction between disease and infection is not 
evident and needs to be clarified.  While it is possible to speculate that 
“infection” relates to a situation where one is carrying an “infectious 
agent” without overt symptomology, it is by no means apparent that this 
is the distinction intended by the Board.  It is important to recognize that 
under the rules, a PHA is required to take specified actions when 
necessary to protect the public from the spread of both communicable 
diseases or infections. The discretionary nature of a PHA’s authority 
under the regulations focuses on a determination of what is needed to 
protect the public and then directing isolation, surveillance, segregation, 
quarantine or modified quarantine or any other control measure it deems 
appropriate [28 Pa. Admin. Code §27.60(a)]. 



34 CRISIS IN THE MAKING:  WHAT’S WRONG WITH PENNSYLVANIA PUBLIC 
HEALTH LAW 

 
 

 

What May a PHA Do to Respond to a Public Health Concern? 

Ultimately what really matters in a public health crisis or potential 
crisis is the government’s ability to require individuals or entities to do 
things that reduce the likelihood of the spread of disease. When a 
potential public health problem emerges, the government’s response is 
obviously intended to have a practical benefit.  Therefore the measure of 
effectiveness of a public health statute resides in its ability to provide a 
PHA with the tools necessary to respond to an outbreak of a 
communicable disease while at the same time limiting the likelihood of 
arbitrary actions.  In that regard, Pennsylvania public health statutes have 
significant limitations. In general there is broad authority vested in public 
health officials, particularly with regard to isolation and quarantine 
directives. There is no requirement in either the DPCL or the 
Counterterrorism Law that the government adopts the control measure 
least restrictive of individual liberty, to effectuate public health 
objectives.  

 The DPCL 

 In general the DPCL provides that a PHA may use “appropriate 
control measures in such a manner and in such a place as provided by 
rule or regulation” (35 Pa. Stat. Ann. §521.5). Although the term “control 
measures” is not defined, §521.5 makes reference to taking steps to 
respond to “a disease which is subject to isolation, quarantine, or any 
other control measure” (35 Pa. Stat. Ann. §521.5). Implicitly, isolation 
and quarantine are authorized control measures.  Moreover, a subsequent 
section of the DPCL provides that a PHA must require a person to 
submit to a medical examination (35 Pa. Stat. Ann. §521.7). It is also 
apparent that a PHA has the authority to at least request an infected 
person undergo treatment (35 Pa. Stat. Ann. §521.11).16 No other control 
strategies are described or even referred to in the Act.   

While the DPCL does provide some limited guidance, the manner in 
which and place where control measures may be carried out are issues 
explicitly left to rule making (35 Pa. Stat. Ann. §521.5).  Unfortunately, 
the regulations promulgated by the State Advisory Health Board do not 
materially clarify either of these questions and, with the exception of 
authorizing “placarding,” do not expand the list of acceptable control 
measures.   



John A. Bozza         35 
 
 
 

 

1.  Isolation.  Under the DPCL, isolation is defined as: 

The separation for the period of communicability of infected 
persons or animals from other persons or animals in such places and 
under such conditions as will prevent the direct or indirect 
transmission of the infectious agent from infected persons or animals 
to other persons or animals who are susceptible or who may spread 
the disease to others.  [35 Pa. Stat. Ann. §521.2(e)]  

It is directly authorized in only one instance where a person is 
infected with a communicable disease in a communicable state and 
refuses to submit to treatment. In that circumstance, either the secretary 
of the department or the local health officer “may cause the person to be 
isolated in an appropriate institution” (35 Pa. Stat. Ann. §521.11).  In no 
other instance is isolation, as defined in the DPCL, explicitly authorized.  

 It is apparent the PHA has broad discretion with regard to isolation 
in two respects. First, it is entirely up the PHA to determine what is an 
appropriate institution and second, the PHA must determine when the 
infected person has been rendered non-communicable.  In circumstances 
where the disease in question is a venereal disease, the DPCL 
specifically provides that the person may be “received” by a county jail 
[35 Pa. Stat. Ann. §521.11(b)]. Otherwise there is no designation as to an 
appropriate place, nor are there criteria for determining what may be an 
appropriate location.  Further, there is no time limitation. 

 There is also no provision for the isolation of someone who is 
infected but who has agreed to treatment.  In this circumstance, a PHA 
may be able to proceed under the quarantine provision as described 
below or under the “any other control measure” provision of §521.5. 

2. Quarantine. The DPCL provides that the Secretary of the Department 
of Health or the local “qualified medical health officer” may require that 
a person who refuses to be examined be placed in quarantine.   
Quarantine is defined under the Act as: 

The limitation of freedom of movement of persons or animals 
who have been exposed to a communicable disease for a period of 
time equal to the longest usual incubation period of the disease in 
such manner as to prevent effective contact with those not so 
exposed. Quarantine may be complete, or, as defined below, it may 



36 CRISIS IN THE MAKING:  WHAT’S WRONG WITH PENNSYLVANIA PUBLIC 
HEALTH LAW 

 
 

 

be modified, or it may consist merely of surveillance or 
segregation.17 [35 Pa. Stat. Ann. §521.2(i)] 

The period of the quarantine may last until it is determined that the 
person is not infected or a carrier of the disease.  There is no other time 
limitation.  A person who refuses to be examined may be “committed by 
the court to an institution determined by the Secretary of Health to be 
suitable for the care of such cases” (35 Pa. Stat. Ann. §521.7).  This 
suggests that a PHA is without authority to require institutional 
commitment on its own.   

There are no specific guidelines for the use of quarantine, nor does 
the DPCL list the type of quarantine measures that may be taken.  
However, given the very broad definition of the term in the Act, it is 
apparent that the range of possibilities is considerable.  The notion that a 
quarantine may be carried out “in such a manner as to prevent effective 
contact with those not so exposed” [35 Pa. Stat. Ann. §521.2(i)] suggests 
that the only criteria for selecting the form of the measure is its 
effectiveness in preventing contact.  Contrary to the implication of the 
right of the PHA to seek a court ordered commitment discussed above, 
this would seem to connote isolation as an option.  Importantly, the 
DPCL does not require that a PHA or the court limit its selection to the 
alternative that is the least restrictive of the individual’s liberty. 

3. Involuntary examination.  The DPCL provides that a PHA may require 
a person who it reasonably suspects is infected or a carrier of a 
communicable disease “to undergo a medical examination and any other 
approved diagnostic procedure” (35 Pa. Stat. Ann. §521.7).  If the person 
refuses, then a PHA, limited to either the secretary of the department or 
the “local qualified medical officer,” may cause the person to be 
quarantined (35 Pa. Stat. Ann. §521.7).  The quarantine may last until it 
is determined that the person is not infected or a carrier.  Alternatively, 
either person may petition the Court of Common Pleas seeking an order 
to compel the examination. Unlike the PHA who compels quarantine, the 
Court must find that the person refused to be examined for no valid 
reason before ordering an examination or subsequently committing the 
person to an institution “determined by the Secretary of Health to be 
suitable for the care of such cases.”18 

4. Involuntary treatment. There is no provision of the DPCL that 
authorizes a PHA to require treatment.  However, there is certainly an 



John A. Bozza         37 
 
 
 

 

implication in §521.11 that a PHA may request it.  It is not clear just how 
far it may go in ultimately coercing it.  The stated remedy provided in 
§521.11 for refusing treatment is isolation “in an appropriate institution 
… until the disease has been rendered non-communicable.”  This may be 
accomplished through court action. If a person refuses treatment, a PHA 
is authorized to petition the Court of Common Pleas and the Court, after 
a hearing, may commit the person to an appropriate institution (35 Pa. 
Stat. Ann. §511(a.2). 

Of potential practical significance is the Act’s provision that certain 
forms of spiritual healing constitute acceptable treatment. Section 
521.11(a.3) expressly approves of such treatment: 

…it is understood that treatment approved by the department or by 
the local board or department of health shall include treatment by a 
duly authorized practitioner of any well recognized church or 
religious denomination which relies on prayer or spiritual means 
alone for healing: Provided, however, that all requirements relating 
to sanitation, isolation or quarantine are complied with. [3 Pa. Stat. 
Ann. §521.11(a.3)]  

This section seems to suggest that where spiritual treatment has been 
chosen by an infected person, a PHA is authorized to use other control 
measures including isolation. This appears to be contrary to the language 
set forth in §521.11(a) that the PHA may cause a person to be isolated 
when treatment is refused.   

The Counterterrorism Act  

1.  Isolation.  The term is not defined in the Act but the governor is 
authorized to temporarily isolate a group or individual suspected of 
having or actually having a contagious disease due to an actual or 
suspected bioterrorist or biohazardous event. The governor may only 
order isolation if going through judicial proceedings “currently 
available” would cause a delay that would prevent or limit the PHA’s 
ability to prevent or limit transmission of a contagious or potentially 
contagious disease to others [35 Pa. Stat. Ann. §2140.301(a)].  If the 
governor proceeds without judicial authorization, he or she must petition 
the court within 24 hours and after a hearing, the court may order 
continued isolation for 30 days with additional isolation authorized, if 
warranted, upon further review.  



38 CRISIS IN THE MAKING:  WHAT’S WRONG WITH PENNSYLVANIA PUBLIC 
HEALTH LAW 

 
 

 

2.  Quarantine.  The term is not defined in the Act. The Act makes no 
distinction between isolation and quarantine and it would appear that the 
government’s authority with regard to quarantine is the same as isolation. 
As with isolation, a governor’s order is subject to judicial review  [35 Pa. 
Stat. Ann. §2140.301(a)].   

3.  Involuntary examination.  There are no provisions related to this issue 
in the Act. 

4. Involuntary treatment. There are no provisions related to this issue in 
the Act. 

Health Department Regulations 

 The DPCL’s “control measure” approach to the spread of 
communicable disease is further developed in the regulations.  Section 
27.60(a) provides that a PHA: 

… shall direct … any other control measure the Department or the 
local health authority considers to be appropriate for the surveillance 
of the disease, when the disease control measure is necessary to 
protect the public from the spread of infectious agents.   

Section 27.60(b) further provides: 

The Department and local health authority will determine the 
appropriate disease control measure based upon the disease or 
infection, the patient’s circumstances, the type of facility available 
and any other available information relating to the patient and the 
disease or infection. 

1. Isolation.  The definition is, in all material respects, identical to that 
set forth in the DPCL.  Contrary to the DPCL, the regulations seem to 
require that a PHA isolate a person who has a communicable disease.  
Section 27.60 provides that the PHA “shall direct the isolation of a 
person or an animal with a communicable disease or infection” (27 Pa. 
Admin. Code §27.60).  The regulations provide little guidance as to the 
proper place for isolation but §27.61 suggests that forms of isolation 
other than institutionalization may be appropriate by requiring that 
instructions be given to specified persons “defining the area within which 
the case is to be isolated and identifying the measures to be taken to 
prevent the spread of the disease” [35 Pa. Stat. Ann. §27.61(3)].19   



John A. Bozza         39 
 
 
 

 

Section 27.87 provides that a PHA shall isolate a person infected with 
a communicable disease who refuses treatment in an appropriate 
institution, “if it determines the action advances public health interests” 
[35 Pa. Stat. Ann. §27.87(a)].  Although the character of the institution is 
not precisely defined, it must be an institution designated by the PHA 
and the isolation is to continue until the person is rendered non-
communicable.  The rules also provide that the PHA may release an 
individual from isolation when it determines the person no longer 
presents a threat to the public health (35 Pa. Stat. Ann. §27.68). 

There are special isolation rules for persons infected with 
tuberculosis.  A person who is suspected of having tuberculosis is to be 
kept in his or her residence if facilities for isolation are available there 
and the person accepts the isolation (35 Pa. Stat. Ann. §27.161).20 If 
isolation in the person’s residence cannot be accomplished, then isolation 
is to occur in a manner as contemplated for other communicable diseases 
[35 Pa. Stat. Ann. §27.161(2)]. 

2.  Quarantine. Under the rules, the definition of quarantine is similar but 
not identical to that found in the DPCL. As with isolation, the regulations 
require that a PHA shall direct the “… surveillance, segregation, 
quarantine or modified quarantine of contacts of a person or an animal 
with a communicable disease or infection” [35 Pa. Stat. Ann. §27.60(a)].  
However, the rules also ascribe to a PHA broad discretionary authority 
by providing that a PHA “shall determine which contacts shall be 
quarantined, specify the place to which they shall be quarantined, and 
issue appropriate instructions” (35 Pa. Stat. Ann. §27.65). The 
regulations also provide that a person under quarantine may be moved 
from one place to another as otherwise provided under §27.67, ostensibly 
to avoid contacts with others (35 Pa. Stat. Ann. §27.1ii).21   

There is one material difference in the definition that could 
significantly affect the duration of quarantine. The definition in the 
regulations states that a quarantine may last for “a period of time equal to 
the longest usual incubation period of the disease, or until judged non-
infectious by a physician” (35 Pa. Stat. Ann. §27.1ii; emphasis added).  
The highlighted language does not appear in the DPCL and is not further 
explained in the regulations. By simply referring to “a physician” it 
raises the prospect that the opinion of any physician, not withstanding the 
expression of a contrary view or for that matter an incorrect conclusion, 



40 CRISIS IN THE MAKING:  WHAT’S WRONG WITH PENNSYLVANIA PUBLIC 
HEALTH LAW 

 
 

 

may control the decision of the PHA. Moreover, the failure to adopt a 
more exacting standard sets the stage for potential conflict between a 
patient’s physician and the government’s physician.  It also denotes that 
moving beyond the incubation period and being “non-infectious” are not 
necessarily synonymous. Apparently the regulations contemplate that 
one can be non-infectious prior to the conclusion of the period or perhaps 
continue to be infectious following the incubation period. This is 
obviously a matter of scientific determination and thus the opinion of an 
appropriate expert regarding this matter would to be essential. 

3. Involuntary examination. The authority of a PHA to require testing 
under the regulations is similar to the DPCL. Whenever a PHA has 
reasonable grounds to suspect that a person has been infected with an 
organism causing a communicable disease, it may require the individual 
to submit to a medical examination and “any other approved diagnostic 
procedure” (35 Pa. Stat. Ann. §27.81). If the person refuses, the PHA 
may cause the person to be quarantined until “it is determined that the 
person does not pose a threat to the public health …” [35 Pa. Stat. Ann. 
§27.82(a)].  As with the DPCL, the rules authorize a PHA to petition the 
court in circumstances where the person refuses a quarantine directive, 
and the court, following a hearing, may commit an individual who 
continues to refuse, to an institution determined by the state Department 
of Health to be suitable to care for such individuals [35 Pa. Stat. Ann. 
§27.82(b)(2)(c)]. Also consistent with the DPCL, a person ordered by the 
court to be examined may be examined by a physician of his or her own 
choosing (35 Pa. Stat. Ann. §27.83).  

4.  Involuntary treatment.  Section 27.88 allows the PHA to order certain 
individuals to undergo preventative therapy, that is, therapy designed to 
prevent a disease from reverting to a communicable stage: 

If the disease is one which may be significantly reduced in its 
communicability following short-term therapy, but is likely to 
significantly increase in its communicability if that therapy is not 
continued, such as tuberculosis, the Department or local health 
authority may order the person to complete therapy which is 
designed to prevent the disease from reverting to a communicable 
stage, including completion of an inpatient treatment regimen [35 Pa. 
Stat. Ann. §27.87(a)(1)]. 



John A. Bozza         41 
 
 
 

 

The form of treatment for a communicable disease is not otherwise 
specified.  Like the DPCL, the regulations allow the PHA to petition the 
court in the event that an individual refuses treatment and, although the 
court after a hearing shall upon finding that the person has refused 
treatment “issue an appropriate order,” nothing in the regulations state 
that the court can compel treatment.   

 

Issues of Compelling Concern: A Summary 

Delineating Clear Lines of Authority and Responsibility 

In a time of a real or potential crisis, knowing which governmental 
authority or individual is authorized to act and, perhaps more 
significantly, who has the responsibility to act, is of paramount 
importance. The DPCL and related regulations need to be clarified to 
assure that decision-making will not be stymied by uncertainty about 
who has the authority to do what. The DPCL does not sufficiently 
differentiate the authority of local public health authorities from that of 
the Department. As noted above, the Act does not indicate whether the 
Department has veto power over decisions of local public health 
authorities. Although the Department is designated as a supervisor who 
provides guidance to a local PHA, neither the DPCL nor the regulations 
give precise parameters to that role. Consider that the DPCL 
unequivocally states that primary responsibility for prevention and 
control of communicable disease resides with “(l)ocal boards and 
departments of health.” This ambiguity gives rise to the prospect of 
perhaps contradictory decisions with potentially disastrous results.  There 
is some safeguard provided by the DPCL’s provision that if the secretary 
of the state Department of Health determines that the local PHA’s 
“disease control program” is so inadequate that it constitutes a “menace 
to the health of the people,” he or she may appoint agents to carry out a 
disease control program [35 Pa. Stat. Ann. §521.3(c)]. Unfortunately, 
“disease control program” is not defined and it is not clear that this 
authority applies to a local decision in an individual case or 
circumstance. 

While it is conceivable that this situation could be clarified by 
administrative rulemaking, to date, it has not been.  With regard to issues 
involving examination, treatment, quarantine and isolation of persons 



42 CRISIS IN THE MAKING:  WHAT’S WRONG WITH PENNSYLVANIA PUBLIC 
HEALTH LAW 

 
 

 

who have or are suspected of having a communicable disease, the 
regulations simply state that either the Department or local health 
authority is authorized to take the appropriate action (see 27 Pa. Admin. 
Code §§27.60, 27.82, 27.87, 27.88).  The regulations do not address the 
relationship between state and local public health officials in any manner 
that clarifies the lines of authority or responsibility in this area of vital 
public concern. 

Moreover, the terms “local qualified medical health officer” and 
“local medical health officers” are not defined in the statute and, 
although the regulations do not use these designations, they do not alter 
the authority of such individuals to take certain actions specified in the 
DPCL.22 In each instance, the terms connote a plethora of possible actors 
including virtually any physician and perhaps a variety of other health 
care workers who may be authorized to take action. Neither term 
explicitly incorporates the designation of “local health officer,” a term 
that is defined in the DPCL as the head of the local department of health 
[35 Pa. Stat. Ann. §521.2(g)].23 The use of these terms does seem to 
connote someone who has some form of medical training.  

Even if it were to be assumed that the legislature intended some 
relationship among these designations or for that matter that they all 
referred to the same individual, the question remains as to what separates 
a “qualified” medical health officer from one who is not, or a “medical 
health officer” from one who is simply a health officer?  The DPCL says 
that a “qualified” one may order a person suspected of being infected to 
undergo an examination and diagnostic testing and to quarantine the 
person for refusing to go along with it. If the court is ultimately requested 
to enforce an order from such an individual, it may well be necessary to 
first determine what it means to be “qualified.” Given that one who is a 
“local qualified medical health officer” has designated public health 
responsibilities and the authority, under certain circumstances, to 
quarantine someone, this is not simply a matter of semantic nitpicking.  It 
would seem reasonable to know if this includes the family doctor, a 
podiatrist, a dermatologist, a nurse or any other health care provider.    
While the rules provide for a position designated “health officer” in 
certain municipalities, only in certain counties does the person have to 
have to be a physician (28 Pa. Admin. Code §§11.1, 13.11).  



John A. Bozza         43 
 
 
 

 

The Turning Point Model State Public Health Act (“Model Act”), the 
product of a collaborative initiative involving five states and a number of 
national organizations and experts in the in field of public health, 
provides no guidance with regard to the relationship between state and 
local PHA’s (Turning Point Model State Public Health Act 2003).  
Indeed it seems to leave this issue to the drafters of state statutes by 
referring to either a “state or local public health agency” as the actor 
responsible for undertakings such as mandatory treatment [Turning Point 
Model State Public Health Act 2003, §5-107(b)] or quarantine and 
isolation [Turning Point Model State Public Health Act 2003, §5-108(a)], 
without delineating particular lines of authority. It does, however, 
distinguish between those who are authorized to carry out the provisions 
of the Act, ostensibly anyone so designated in a statute or regulatory 
scheme, from those who have the authority to “manage and supervise” an 
agency’s activities [Turning Point Model State Public Health Act 2003, 
§1-102 (44, 47)].24 The Model Act avoids the problem of designating a 
public health role for individuals whose titles are left undefined. 

 While under the 35 Pa. Stat. Ann., it is specifically provided that the 
governor is authorized to act, the question remains as to who actually 
determines that there is a cognizable threat in the first place. While the 
governor is empowered to act, upon whom he or she must depend for a 
determination of what are likely to be largely scientific questions is not 
addressed in the statute.  This is particularly significant because, as noted 
above, the governor can only act in limited circumstances where inter 
alia there is an outbreak, actual or suspected, of a contagious disease due 
to a bioterrorist or biohazardous event and where the failure to do so will 
jeopardize the Department’s ability to curtail the transmission of a 
contagious disease [35 Pa. Stat. Ann. §2140.301(a)]. None of the critical 
terms are defined in the Act and there is no framework, other than 
consultation with the “Secretary of Health,” for interpreting whether the 
conditions precedent to the exercise of the governor’s authority have 
been met [35 Pa. Stat. Ann. §2140.301(a)].25   

  So if it were reported to the police in Scranton, or Kane, or 
Harrisburg that there was what appeared to be an outbreak of an 
unknown disease of uncertain origin in the area of a waste-water 
treatment plant or perhaps another “white powder” incident at a 
courthouse, who within the Commonwealth would be enlisted to 
determine whether it was a contagious disease resulting from a 



44 CRISIS IN THE MAKING:  WHAT’S WRONG WITH PENNSYLVANIA PUBLIC 
HEALTH LAW 

 
 

 

biohazardous event that required immediate action and advise the 
governor or a PHA accordingly?  Moreover, who will be responsible for 
coordinating the overall government response and in particular assuring 
that the perhaps divergent priorities of criminal justice and public health 
authorities are properly accommodated? Assuming that these issues 
would eventually get sorted out, any initial delay caused by either role 
ambiguity or a failure of necessary expertise could be very costly.  In a 
similar vein, the consequences of precipitous action predicated on bad 
information or poor advice could be far reaching for individuals 
unnecessarily subjected to quarantine or isolation orders. And while 
these issues could well be addressed through administrative rulemaking, 
the Board has adopted none. 

The provisions of the Model State Emergency Health Powers Act 
(MSEHPA) are applicable to circumstances where a governor of a state 
declares a “public health emergency” (Model State Emergency Health 
Powers Act 2001, Article IV). Such an emergency arises only when there 
is a high probability of a large number of deaths, serious or long-term 
disabilities, or widespread exposure to agents that pose a significant risk 
of substantial future harm [Model State Emergency Health Powers Act 
2001, §104(m)]. In such a circumstance the governor is authorized to 
take certain steps to respond to the threat of a public health crisis while 
the coordination of matters pertaining to a public health response is left 
to the PHA. Unfortunately, MSEPHA defines PHA in such a way as to 
include both state and local officials without delineating their respective 
scope of authority [Model State Emergency Health Powers Act 2001, 
§403(b)]. It therefore offers little guidance in formulating a practical 
approach to adjusting Pennsylvania’s public health law in a way that 
avoids confusion in the face of a public health event. 

Controlling the Government’s Discretion 

While there can be no doubt that the government’s mission of 
responding to a public health concern is an essential component of a 
state’s police power, determining when and how that power should be 
exercised is the sine qua non of public health policy.  In part this is 
because the state of science and more specifically, medicine, is 
inherently dynamic and as such, both the way we view the severity and 
significance of a health condition may very well change over time. 
Yesterday’s epidemic may be rendered nothing more than an interesting 



John A. Bozza         45 
 
 
 

 

historical event by the development of an effective vaccine or treatment 
or improvement in environmental conditions or simply because of a 
change in the way in which a culture views it. The DPCL, for example, 
singles out both tuberculosis and venereal diseases for particular 
attention.26 While there are very important reasons to be concerned about 
both of these disease classifications, with the development of modern 
antibiotics, there is nowhere near the level of concern that existed when 
the DPCL was originally adopted. And yet even that has changed 
recently because the bacterium that causes tuberculosis has developed a 
strain that is resistant – sometimes very much so – to current modes of 
otherwise effective treatment (Lewis 1995; see Centers for Disease 
Control and Prevention January 2008).  

When, then, is the threat to the public’s health sufficient to justify the 
government’s intervention? The law must serve as a vehicle for 
answering this question and provide a protocol for governmental 
decision-making. The challenge is do this in a way that accommodates 
the compelling need to take effective action while minimizing the risk of 
unnecessary restrictions on individual liberty. While the conditions that 
give rise to government action need to be delineated with a degree of 
precision, this must be accomplished without being so restrictive that the 
government’s ability to respond to serious threats to the public’s health is 
impaired. And while discretionary authority to act in such matters is 
essential, the need for competent scientific and medical expertise in 
support of decision-makers is of critical importance. Protecting the 
public’s health demands science-driven decision-making.27 he definitions 
of both the DPCL and the Counterterrorism Act need to be revisited to 
provide for more precise standards related to a PHA’s decision to act in 
the face of a public health concern.  In its present form, the definition of 
“communicable disease” is so broad as to be unworkable.  The Board 
through its rule-making power has not provided any guidance.  As a 
consequence, a PHA has almost unlimited discretion in selecting control 
measures necessary to respond to a public health event involving 
communicable disease whether it be an outbreak of bird flu or the 
common cold.   

This issue is addressed in the Model Act in more than one way.  For 
example, with regard to mandatory treatment, the Act provides that a 
state may require a person to undergo medication therapy only when 
infected with “… a contagious disease that poses a significant risk to 



46 CRISIS IN THE MAKING:  WHAT’S WRONG WITH PENNSYLVANIA PUBLIC 
HEALTH LAW 

 
 

 

others or the public’s health” (Turning Point Model State Public Health 
Act 2003).  By imposing a “significant risk” condition, the Model Act 
specifically limits the circumstances under which the government may 
act to require treatment for an infectious disease.   

Perhaps most significantly however, the Model Act requires that 
when a public health agency acts “to accomplish essential public health 
services and functions, it shall, to the extent possible, employ the policy 
or practice that least infringes on the rights or interests of individuals” 
[Turning Point Model State Public Health Act 2003, §5-101(b)(4)]. The 
drafters of the Model Act reinforced the importance of this conceptual 
scheme by specifically requiring that the use of isolation and quarantine 
must be effectuated by the “least restrictive means” required to prevent 
the spread of a contagious disease [Turning Point Model State Public 
Health Act 2003, §5-108(a)(b)(1)]. By adopting a least restrictive 
alternative approach to the overall application of the Act, it reduces the 
prospect that the government’s response to a public health concern will 
be disproportionate to the actual threat posed to the public. This concept 
is not included in either the DPCL or the Counterterrorism Act, nor is it a 
part of the Board’s regulations.28 However, it is a concept that is firmly 
imbedded in Pennsylvania jurisprudence. The Mental Health Procedures 
Act has embraced the notion that the government’s response to persons 
suffering from a serious mental illness and who require involuntary 
treatment must be measured and proportionate such that it “… shall 
impose the least restrictive alternative consistent with affording the 
person adequate treatment for his condition” (50 Pa. Stat. Ann. §7107).  

Moreover, the Pennsylvania Supreme Court has long recognized the 
constitutional mandate to limit the exercise of government power in 
restricting personal liberty to means that are narrowly rather than broadly 
tailored to achieve the government’s legitimate purposes (Appeal of 
Albert L. Niccoli 1977). In large part this orientation towards a 
minimalist approach to public health policy results from a belief that 
many, if not most, people afflicted with a communicable disease will 
voluntarily seek treatment or comply with the government’s request to 
obtain it or embrace other restrictions and that for those who do not, it is 
likely the result of some psychological condition that interferes with their 
rational decision-making ability. For this group, lesser rather than greater 
efforts on the part of the government may well be adequate to meet the 
government’s concern (Gostin, Burris and Lazzarini 1999, 123-124). On 



John A. Bozza         47 
 
 
 

 

the other hand this assumption may be entirely too optimistic.  In the face 
of what is portrayed or perceived as an imminent health threat, 
compliance with even relatively innocuous preventive measures may be 
seriously problematic because of distrust of government or the medical 
community or because of the inherently uncertain nature of a public 
health threat presented. Therefore any least restrictive alternative 
requirement must be adopted in a context that explicitly contemplates its 
practical limitations and provides accordingly.    

MSEHPA by definition limits action to circumstances that meet a 
certain threshold of seriousness. This is encompassed in the definition of 
public health emergency. Most notably, however, the MSEHPA also 
embraces the least restrictive alternative approach to isolation and 
quarantine that is so critical to the conceptual scheme of the Model Act:  

Isolation and quarantine must be by the least restrictive means 
necessary to prevent the spread of a contagious disease or possibly 
contagious disease to others and may include, but are not limited to, 
confinement to private homes or other private or public premises 
[Model State Emergency Health Powers Act 2001, §604(b)(1)]. 

Harmonizing Statutory and Regulatory Provisions 

At a time of crisis the law should be a source for direction that points 
the way for government action in a clear and concise manner. The 
existence of separate statutes dealing with what are essentially identical 
public health concerns poses a barrier to effective and proper 
governmental action. Whether a contagious disease is the result of a 
bioterrorist or biohazardous event, however defined, or of some natural 
phenomenon, may be of immense practical consequence in terms of the 
steps needed to ultimately stop its spread. However, from the perspective 
of the kind of legislative guidance needed to deal with a public health 
crisis, divergent statutes that incorporate contradictory or differing 
terminology and differing mechanisms for decision-making only serve to 
obfuscate the matter and serve as a barrier to sound and expedient 
decision-making. There is no public policy or other reason that 
Pennsylvania could not adopt a single statutory scheme that incorporates 
the provisions of both the DPCL and the public health sections of the 
Counterterrorism Act. This would allow for conceptual clarity, common 
terminology, uniform procedures, and a single source for administrative 



48 CRISIS IN THE MAKING:  WHAT’S WRONG WITH PENNSYLVANIA PUBLIC 
HEALTH LAW 

 
 

 

rule making, while at the same time assuring the flexibility critical for an 
effective localized response. 

 

Conclusion 

 We learned from the disaster that followed hurricane Katrina that 
preparedness is much more than a state of mind and that there can be 
little comfort in the mere existence of laws or the development of plans.   
In the final analysis, in times of crisis, it is performance that counts.   
Pennsylvania has a body of public health law that provides for the 
implementation of various measures to control the spread of contagious 
diseases in varying circumstances.  It has provided for the development 
of plans to respond to health and other emergencies (35 Pa. Stat. Ann. 
§2140.201).  But the cornerstone of Pennsylvania public health law, the 
Disease Control and Prevention Act, has not been comprehensively 
overhauled since its adoption in 1955.  More importantly, its efficacy has 
never been seriously tested in the context of a significant public health 
crisis and as a consequence it has received almost no judicial attention.  
A similar situation exists with the Counterterrorism Planning, 
Preparedness and Response Act although it is of far more recent vintage.  
And although the Board is authorized to formulate rules to facilitate the 
implementation of the DPCL, it has not done so in any kind of 
comprehensive manner. 

 How, then, will Pennsylvania perform in the face of a threatened 
public health crisis, including the outbreak of deadly flu epidemic or 
antibiotic-resistant tuberculosis or some other ominous but yet to be 
identified infectious agent?  It is suggested that unless key aspects of 
Pennsylvania law are clarified and/or modified, we risk far from 
adequate performance from public officials responsible for the public’s 
health.  Responding to a public health crisis should not be an experiment. 
That we will surely learn from our ultimate mistakes and the 
shortcomings of our laws should give us no comfort.  Now is the time to 
act to address the limitations of our statutory and regulatory scheme.  

 

 

 



John A. Bozza         49 
 
 
 

 

Notes 

1. The government’s authority to require people to act in a certain manner to further 
the public’s health has long been recognized as emanating from its “police power” (see 
Nat'l Wood Preservers v. Commonwealth Dep't of Envtl. Res. 1980; O’Connor v. 
Donaldson 1975).  

2. Influenza A (H5N1) virus is one subtype that is highly contagious in birds and has 
been transmitted to humans in a limited number of cases. The Centers for Disease 
Control provides a more complete description of the history and current status of avian 
influenza (Centers for Disease Control and Prevention 7 May 2007).  The Pennsylvania 
Department of Health has an excellent explanation of avian flu on its website (2005).  

3. In discussing the nature and history of quarantines, Batlan notes that, “ … (T)here 
has not been a widespread medical quarantine in the United States for at least eighty 
years” (Batlan, 2007, 59). 

4. The authors describe the significance of jurisdiction in the public health law arena 
and note the need to articulate clearly the scope of authority and responsibility of public 
health departments (Gostin, Burris and Lazzarini, 1999). Weeks generally discusses the 
need for a coordinated response between federal and state authorities when faced with a 
public health crisis and points out the interplay of state and federal authority (Weeks, 
2007). 

5. Batlan notes the potential for confusion resulting from divergent responses to public 
health events from government bureaucracies (Batlan, 2007, 59). Chen comments on the 
important role of state governments while recognizing the necessity of federal action in 
certain circumstances (Chen, 2005, 175-176). 

6. Chen observed that the Model State Emergency Health Powers Act (MSEHPA), 
which was formulated at the request of the Center for Disease Control and that has been 
the used as basis for Pennsylvania’s Counterterrorism Act, has “engendered a storm of 
controversy” (Chen, 2005, 168-173). 

7. Similarly, the significant due process issues that often arise any time the government 
seeks to invade liberty interests are not addressed but are of nonetheless compelling 
concern (Daubert, 2007). Chen describes the due process issues associated with the 
provisions of Pennsylvania’s Counterterrorism Act (Chen, 2005). 

8. This section [35 Pa. Stat. Ann. §521.16(c)] provides that, “Municipalities which 
have boards or departments of health or county departments of health may enact 
ordinances or issue rules and regulations relating to disease control, which are not less 
strict than the provisions of this act or the rules and regulations issued there under by the 
board.”  By adoption of the Local Health Administration law, Pennsylvania provides for 
the creation of county departments of health authorized to act in particular circumstances 
(16 Pa. Stat. Ann. §12005).  It has been observed that there are 237 local boards or 
departments of health that operate outside the Local Health Administration law 
(Pennsylvania Public Health Law Bench Book 2006, note 2).   

9. “Department” is defined in the DPCL as the State Department of Health [35 Pa. Stat. 
Ann. §521.2(d)].  



50 CRISIS IN THE MAKING:  WHAT’S WRONG WITH PENNSYLVANIA PUBLIC 
HEALTH LAW 

 
 

 

10. Moreover, some municipalities and counties with health departments may adopt 
rules that authorize other individuals or entities to act [see, DPCL 1955, §521.16(c)].  
Under such arrangements there is a way to anticipate the role that may be played by the 
State Department of Health or any local public health authority.   

11. See 28 Pa. Admin. Code, §27.65, requiring an LHA not a LMRO to consult with the 
state Department before requiring isolation of a person harboring an infectious agent. 

12. See 35 Pa. Stat. Ann. §521.7, relating to examination and diagnosis; and 35 Pa. Stat. 
Ann. §521.11, relating to treatment.  However, it must noted that the DPCL does specify 
that certain PHA’s are “responsible for the prevention and control of communicable and 
non-communicable disease,” so it is apparent that a PHA may act to prevent non-
communicable disease as well.  For purposes of this analysis non-communicable diseases 
are not addressed.   

13. However, the DPCL was amended in 1994 to deal separately with mandatory testing 
for Human Immunodeficiency Virus (HIV) [35 Pa. Stat. Ann. §521.11(a)]. The 
amendments were ostensibly necessitated by requirements of the federal Omnibus Crime 
Control and Safe Streets Act.  

14. There is no similar requirement for isolating persons who are suspected of being 
infected but who have refused testing (35 Pa. Stat. Ann. §521.7). 

15. However, a more realistic view of the scope of a PHA’s authority comes into focus 
when the practical impact of the Pennsylvania Department of Health’s sparse regulations 
is considered. 

16. The DPCL only explicitly addresses treatment for venereal disease and then only by 
providing for “free treatment” when necessary for preservation of the public health.  

17. The terms modified quarantine, surveillance and segregation are also defined in 
§521.2(i)(1,2,3).  

18. This section of the DPCL also sets forth certain procedures to follow in court cases 
and more fully describes the parameters of the examination.   

19. There is, however, specific authorization to isolate or quarantine a person suspected 
of having a sexually transmitted disease in an institution where the person’s movement is 
physically restricted [35 Pa. Stat. Ann. §27.88(a)].  

20. This procedure is akin to the least restricted alternative approach discussed hereafter 
as it requires the government to first try to accomplish its objective by having the person 
confined to her home with instructions on how to prevent the spread of the disease. If that 
doesn’t work, then other less favorable means may be invoked. 

21. The term does not exclude the movement of a person “… from one location to 
another when approved by the Department or local health authority…” 

22. It is entirely possible that municipal codes have the same, different or additional 
designations for individuals authorized to act. 

23. However, the rules identify the “health director” as the administrator of the county 
health department (16 Pa. Stat. Ann. §12012). Although the health director is not required 
to be a physician, a local health department must employ one (28 Pa. Admin. Code 
§§15.22, 15.25).  



John A. Bozza         51 
 
 
 

 

24.  Public health agents would include a broad class of individuals who are designated 
to carry out the specific public health functions, while public health officials are those 
more narrowly concerned with the day-to-day operation of a public health agency.  
Nonetheless, the Model Act leaves it to individual states to more precisely define who is 
to be included in each category as well as their scope of authority. There is an exception 
to this approach with regard to reporting requirements where the Model Act imposes a 
duty on a “health care provider,” broadly defined to report a condition of public health 
importance [see §5-103[f](1)]. 

25. Similarly, when the PHA proceeds to petition the court to authorize isolation or 
quarantine, the Act is silent as to how a decision is to be made with regard to the nature 
of a biohazardous event, its potential public health consequences and the appropriate 
response. 

26. HIV is not included in the venereal disease category and is treated separately in the 
DPCL. This focus on specific diseases in state codes is not uncommon and over time this 
focus has shifted to different disease processes and other health concerns (Gostin, et al. 
1999). 

27. HIV is not included in the venereal disease category and is treated separately in the 
DPCL. This focus on specific diseases in state codes is not uncommon and over time this 
focus has shifted to different disease processes and other health concerns (Gostin, et al. 
1999). 

28. But, see 28 Pa. Admin. Code §27.161(1), requiring that if adequate facilities are 
available, a person infected with tuberculosis must be isolated in his or her own 
residence. 

 

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Centers for Disease Control and Prevention. May 28, 2008. “Influenza Pandemic 
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Gostin, Lawrence, Scott Burris, and Zita Lazzarini. 1999. “The Law and the Public’s 
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John A. Bozza         53 
 
 
 

 

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