Thielen, Lee MPA; Dauer, Edward LLB, MPH; Burkhardt, Diane JD; Lampe, Sarah MPH; VanRaemdonck, Lisa MPH, MSW
Thielen Consulting, Fort Collins, Colorado (Ms Thielen); University of Denver Sturm College of Law, Denver, Colorado (Mr Dauer and Dr Burkhardt); and Colorado Association of Local Public Health Officials, Denver (Mss Lampe and VanRaemdonck).
Correspondence: Lee Thielen, MPA, Thielen Consulting, 1308 Lindenwood Dr, Fort Collins, CO 80524 ( firstname.lastname@example.org).
This project was funded by the Robert Wood Johnson Foundation.
The authors thank the following: Advisory Committee members: Gene Matthews, JD; Glen Mays, MPH, PhD; James Hodge Jr, JD, LLM; James Pearsol, MEd; Julia Joh Elligers, MPH; Julie Marshall, PhD; Kaye Bender, PhD, RN, FAAN. Research team: Corine Waldau, MPA; Christopher Bui, JD, MPH; Erica Chavez, JD, MPH; Evan Anderson, JD; Josephine Colacci, JD; Travis Gardner; Martha Meyer, MPH; Lauren Peek, JD; Dieter Raemdonck, JD; Catherine Rodemyer, JD.
The authors also thank more than 90 individuals across all 50 states who spoke with the research team during key informant interviews and provided additional links and documents for the project database.
The authors declare no conflicts of interest.
The 2011 Institute of Medicine report, For the Public's Health: Revitalizing Law and Policy to Meet New Challenges, recommends that “states revise their laws to require public health accreditation for state and local health agencies through the Public Health Accreditation Board accreditation process.”1(p43) The Public Health Accreditation Board (PHAB) began accepting applications for voluntary national accreditation in the fall of 2011.2 There are 3 prerequisites for accreditation: health assessments, health improvement plans, and strategic plans.3 These prerequisites must be in place for a state or local public health agency to apply for PHAB accreditation.
This project brings together the work of both public health law research and public health services and systems research by addressing the need for additional data helping to move this national research forward.4–7
Using a systematic process,8–10 this project looked at all 50 states through a legal lens to identify laws, rules, executive orders, contracts, legislative resolutions, and other legal tools that are used to authorize or require a state or local health agency to complete 1 or more of the prerequisites (although PHAB processes also relate to tribal and territorial health agencies, this project focuses only on state and local agencies). These legal tools are referred collectively as “legal mandates.” In addition, using key informant interviews, facilitators and barriers to implementation and use of the legal tools were identified. The results include an inventory of laws and legal tools that are being used around the country to authorize or require completion of the prerequisites; key findings within this inventory; and facilitators and barriers to the use of these legal tools to carry out the prerequisites and to apply for accreditation.
The research team, housed at the Colorado Association of Local Public Health Officials, started with a legal review of the laws, regulations, and related documents of all 50 states to identify mandates or authority for completion of the 3 prerequisites for accreditation as well as mandates or authorities that mention national accreditation generally. The legal review was followed by a key informant interview with 1 or more public health professionals in each state to verify results, understand facilitators and barriers to implementation and use of the legal tools, collect additional legal tools, and determine the current status of preparation for accreditation.
A comprehensive legal review was completed by the legal research team under the direction of a law professor and a law librarian. The legal research team began by developing a standardized search term methodology. With the assistance of the project's Advisory Committee, Colorado Association of Local Public Health Officials staff, and 6 pilot sites, the legal research team compiled and tested a list of key words related to the concepts of “community health assessment,” “community health improvement plan,” “strategic plan,” and “accreditation.” The team organized the keywords into Boolean search strings in the Westlaw legal research platform of unannotated state statutes ([ST]-ST), state administrative codes ([ST]-ADC), current and archived state legislative materials ([ST]-LEGIS and [ST]-LEGIS-OLD), and state executive orders ([ST]-EO).
The research team also searched state public health agency Web sites for additional tools, using a review protocol designed specifically for the Web sites. Because of the variety and limitations of Web site search engines, the researchers relied on simple word searches using a list of prescribed search terms as well as unique terms discovered using the Boolean search strings in the Westlaw legal research platform.
After testing the legal search protocol with 6 states, the protocol was finalized and the Boolean searches in Westlaw and the Web site searches were carried out for each of the 50 states. These searches were followed by key informant interviews with public health professionals in each state. The interviewer team included a public health expert and legal expert, using a standard interview guide to verify the located laws, to gather information about additional laws, to understand the use and enforcement of the located laws, to garner the facilitators and barriers to the use of the located laws, to understand the level of preparation and completion of the accreditation prerequisites, and to collect tools not found in the traditional legal research platforms. These additional tools include templates, contracts, guidelines, and other documents that require or fundamentally support the prerequisites. The legal review and key informant interviews were conducted during the spring and summer of 2011.
A state-by-state summary was written to describe the use of laws and tools, the environment for the prerequisites and accreditation, and barriers to completion of the prerequisites leading to accreditation. A database was created to categorize and code every law and tool in each state.8 The database, state summaries, and narrative were cross-checked to ensure consistency and clarity. The full findings for this research, including the database, can be accessed at http://www.publichealthalliance.org/chachipresearch.
Results: Themes and Trends
The legal review and the key informant interviews identified numerous ways in which mandates or authorities are administered. These include the following: public health laws; laws that apply to all state agencies within that state; legislative resolutions; regulations; executive branch directives from the Governor or his budget office; policy decisions by the Executive Director of the agency; contractual language; performance contracts with administrators and directors; and implied mandates through state and national accreditation language within the legal tools.
States with mandates for the prerequisites
Table 1 outlines the findings, demonstrating that 26 states have some type of a mandate regarding 1 or more of the PHAB prerequisites. This includes 17 states with a mandate for strategic planning and 18 states with a mandate for a health assessment and/or a health improvement plan at the state and/or local levels. Health assessments and health improvement plans, although considered separate in PHAB, were considered jointly in this project, as they were often inseparable in the legal tools identified.
States with accreditation in law
Only a few states actually refer to accreditation in law or regulation. The clearest mandate for national accreditation was found in Vermont. Vermont, a centralized state, passed legislation in 2011 that requires the department of health to “seek accreditation through the Public Health Accreditation Board” (§26. 18 VS.A. 5).
Maine also addresses accreditation in a statute that was passed following a public health workgroup report issued in 2009. This legislation states:
The Statewide Coordinating Council for Public Health shall report annually to the joint standing committee of the Legislature having jurisdiction over health and human services matters and the Governor's office on progress made toward achieving and maintaining accreditation of the state public health system and on district-wide and statewide streamlining and other strategies leading to improved efficiencies and effectiveness in the delivery of essential public health services. (22 MRSA 412)
Montana passed legislation in 2009, House Bill 173, which created a pilot program to assist local health agencies in their preparation for national accreditation. The pilot project has ended, and an attempt to pass new legislation to extend the pilot beyond the 7 agencies that received $25 000 each did not pass in 2011. It may be reintroduced in the future.
Some states have state accreditation programs including Iowa, North Carolina, and Michigan. In these states, accreditation of local health agencies is achieved through different means. Iowa and North Carolina have state accreditation for local health agencies in laws and regulations. Iowa, through the state board of health, has adopted state standards but, as of 2013, has suspended any action on state accreditation of local health departments. Michigan's local health agencies achieve state accreditation through contract requirements. State accreditation differs in each state and often preceded PHAB and therefore has measures that are not predicated on PHAB measures.
General powers and authority
As demonstrated in Table 1, some states have explicit authorization in law, but not mandates, related to the prerequisites. Other states rely on general duties and powers to work toward public health improvement through assessments and planning. All states, except one, either had a mandate listed or were comfortable using general public health authority to complete 1 or more of the prerequisites.
Facilitators and barriers: Centers for Disease Control and Prevention funding makes a difference
The Centers for Disease Control and Prevention National Public Health Improvement Initiative (NPHII) has created new activity and enhanced leadership at the state agency level. This funding has stimulated both new organizational structures and new objectives at the state agency level regarding quality improvement and preparation for accreditation. State key informants frequently cited their activities under NPHII as evidence of their intentions to prepare for accreditation, particularly regarding the prerequisites and other aspects of accreditation preparation.
Facilitators and barriers: Barriers to completing prerequisites and applying for accreditation
During the interviews, state key informants were asked whether there were barriers to completion of the prerequisites and to applying for accreditation. The commonly cited barriers to the completion of the prerequisites were resources and capacity. There were concerns about the staff time involved, the staff capacity, and the existing delays in filling staff positions. The need for training and education about the prerequisites was also noted, specifically in strategic planning. Categorical funding and the program silos at the state level were seen as barriers to crosscutting work such as strategic plans, health assessments, and health improvement plans. There are concerns that health assessments will “trip over” the similar work of the nonprofit hospitals in communities. Changes in administration at the gubernatorial and agency levels were seen as delays in implementation due to transitions that often mean new priorities and a need to inform new decision makers. Other barriers included a focus on clinical services and prohibitions on unfunded mandates.
As for barriers to applying for accreditation, resources and capacity were again noted as common themes. Only one state cited the lack of specific legal authority for accreditation as a barrier. As with the prerequisites, the need for training and education about accreditation was noted. There were also concerns about the smaller, rural agencies and their ability to meet standards and be knowledgeable about accreditation. Finally, several key informants noted the fees to apply for PHAB as a barrier to achieving national accreditation.
Facilitators and barriers: Impact of reduced funding
While the NPHII funding has enhanced efforts related to infrastructure improvement, there were also several examples of states where local assessments and plans had been part of the public health culture and history, but with reduced state funding, expectations have been reduced. A few examples are listed in Table 2.
Use and limitations of legal tools
Through the discussions with the key informants, it became clear that not all of these mandates or authorities are enforced or used. In some cases, although the legal language appears to be clear, the use of the statute may not be current. In one case, the key informants did not even know that the law existed.
Several states have statutes authorizing or mandating “health assessments” with respect to specific targeted health issues or populations. Examples of these assessments include maternal and child health, racial disparities, and environmental hazards. Key informants were asked how, if at all, such statutes might be related to the health assessments required for PHAB accreditation. The answers were of 3 types: (1) The health assessment in the statute is too focused to be meaningful. (2) By itself it is too focused, but it creates a framework for expansion to a full health assessment. (3) A collection of such assessments might well amount to the health assessment required by PHAB.
Twenty-six states have some mechanism that mandates 1 or more of the prerequisites for PHAB accreditation. The review showed that the law and legal tools can and are being used to support public health agencies in preparation for accreditation.
Nonprofit hospital requirements under the Affordable Care Act and PHAB prerequisite requirements
Section 9007 of the Affordable Care Act (ACA) (Appendix), the federal health reform law enacted in 2010, requires hospitals wishing to retain their nonprofit status to conduct a community health needs assessment at least triennially and to have an implementation strategy for meeting the identified needs. The similarity between this requirement and the PHAB prerequisites has not gone unnoticed by some state health officers and was specifically mentioned by at least 3 states during the key informant interviews. The ACA rule is a part of the legal environment of interest to PHAB accreditation and may become of greater interest to health agencies contemplating accreditation in the near future as the contours of the ACA become clearer and better known. The possibilities for mutual economic benefit at the least may be attractive.
Limitations of the research
The strength of this study is the combination of rigorous legal research methodology combined with understanding the actual use of the law by the public health practice community as identified through the key informant interviews. There are, however, some limitations to the research. First, only those features of the law (eg, statutes and administrative regulations) that had some potential relevance to accreditation per se, or to 1 or more of PHAB's 3 prerequisites—health assessments, health improvement plans, and strategic plans—were included. This study is not meant to indicate whether any given state or local health agency will or will not seek accreditation. In addition, the legal research was conducted on the basis of 3 prerequisites and was not predicated on PHAB.
Second, “legal tools” was defined broadly but did not include judicial decisions and administrative determinations other than rule making. The team did not examine how the states' courts or administrative law judges have construed the terms of the statutes and regulations.
Third, no independent judgment was exercised of the sort a legal opinion would necessarily require. The team encountered instances in which a statute was found that had ostensible relevance but which the key informants stated was no longer meaningful.
Fourth, no attempt was made to determine whether those interviewed were “right” in their opinions about their statutory requisites satisfying or not satisfying PHAB's own requirements. A distinction was made between personal reports and statutory reports. Those health assessments found in the legal review that were related to specific programs or conditions were viewed as too narrow or focused to be included as prerequisites for PHAB.
While the prerequisites for PHAB accreditation can be a barrier to applying for accreditation, numerous legal tools are being used around the country to support and require prerequisites. The use of legal tools can provide a foundation, impetus, and support for state and local health agencies to complete the accreditation prerequisites. However, it is important to understand the interpretation, support, and enforcement of the laws and legal tools to determine whether the tools have impact in individual states. Examples in this project provide options and models as states look at how best to institutionalize infrastructure improvement strategies.
The specifics of §9007 of the ACA are listed in §501(r) of the Internal Revenue Code (IRC), the relevant parts of which are set out here.