Beitsch, Leslie M. MD, JD; Landrum, Laura B. MUPP; Chang, Carol MPH; Wojciehowski, Kathleen JD, MA
The legal principles embedded in the landmark Jacobson v Massachusetts1 decision have spawned numerous arguments in the century since the case was decided by the US Supreme Court. Despite the controversy, there is near uniform agreement that Jacobson v Massachusetts validated state-local public health authority.2 This triumph of state's rights within our system of federalism, recognizing the inherent power of the states to intervene and exercise authority within the realm of public health, heralded the modern era of public health practice. Although ostensibly about the ability of the Cambridge Board of Health to compel compulsory smallpox vaccination, in some sense, Jacobson v Massachusetts was an attempt to sort out the complexities of the multijurisdictional relationships of our tripartite system of governance from a public health perspective.3 The Supreme Court decision to uphold the state's authority to mandate smallpox vaccination continues to reverberate on public health systems across our nation.
The enactment of public health laws has been one of the major success stories since public health evolved in a post–Jacobson v Massachusetts world. This occurred against the backdrop of public health law as a leading contributor to the extension of Americans' life expectancy during the 20th century.4,5 Not surprisingly, this required a synergistic effect of federal, state, and local public health systems, utilizing law as a tool. Ironically, public health law remains a critical yet underdeveloped component of today's public health infrastructure.4,6,7 Moreover, public health law is underutilized as an instrument for creating conditions in which optimal health can be attained.8
Today, as we begin to employ accreditation as a vehicle to improve the overall capacity and capability of state and local governmental public health, it is an opportune time to consider strengthening our legal infrastructure. One of the least recognized challenges facing a national model of a voluntary accreditation system is the varying state laws supporting public health practice across the United States.7,9 National accreditation plays out against a dimension of inherent tension. A single, uniform system would encourage consistency and lead to standardization. However, our nationwide patchwork quilt of laws and authorities functions as a natural laboratory, generating innovations and promoting new concepts. If accreditation is to be embraced on a national level, we will have to balance these tensions. This article describes the legal underpinnings of accreditation and its impact on the direction taken by the Multi-State Learning Collaborative (MLC) states. The potential implications of this legal foundation upon a national model system are also discussed.
In 2005, the Robert Wood Johnson Foundation provided funding to the National Network of Public Health Institutes and the Public Health Leadership Society to establish a learning community of states that are implementing innovative public health agency performance and capacity assessment or accreditation programs. The goals of the MLC have been described elsewhere,10 with the chief long-term goal being to maximize the effectiveness and accountability of governmental public health agencies. From an applicant pool of 18 states, Illinois, Michigan, Missouri, North Carolina, and Washington were selected as grantees.
The longstanding Illinois local public health certification program, first inaugurated in 1993, is not directly addressed in statute. Rather, it is supported under the general powers of the Illinois Department of Public Health. County governments wishing to have responsibility for delegated public health programs “ shall administer and enforce the minimum program standards promulgated by the Department under the provisions of these Acts” (20 Ill Comp Stat 2310/15 ). Public health practice standards were in fact promulgated in rule (Ill Admin Code 77, §600.400 ). Among other desirable public health practices, the standards require an in-depth community health assessment and a community health plan that is responsive to the identified needs, as well as an agency organizational capacity assessment. Together, the assessments and plan constitute the Illinois Project for Local Assessment of Needs. In addition, specific requirements for local health department executive leadership were also promulgated by rule (Ill Admin Code 77, §600.300 ).
The applicant's overall certification submission to the Illinois Department of Public Health must be in “substantial compliance” in order to receive recognition. Although permitted in rule, site visits are not routinely conducted prior to the determination of certification status. Local health departments may receive full certification, provisional certification, or be denied certification (after due process) (Ill Admin Code 77, §600.500 ). The third 5-year cycle of certification is currently under way.
Although the vast majority of Michigan's array of public health programs is statutorily based, there are no specific references to Michigan's accreditation program. However, general authority does emanate from statute. The Michigan Department of Community Health is responsible under the public health code (1978 Mich Public Acts 368) for establishing minimum standards of scope, quality, and administration for the delivery of required and allowable services. The standards have morphed into minimum program requirements (MPRs), which are defined as “objective criteria for meeting requirements of law, rule, department policy, or professionally accepted methods or practices for the purposes of ensuring the quality, availability and effectiveness of services and activities. They are the basic level at which the provision of a service is considered viable and eligible for state funding and must allow evaluation on the basis of observable evidence. MPRs must include the appropriate legal or other citation detailing the source of derivation (ie, law, rule, department program policy, etc)” (Policy 8000 approved by the Director of the Michigan Department of Community Health).
A recent revision ensured that all 122 of Michigan's accreditation standards, comprising 13 domains, are grounded in law, rule, department policy, or professional practices, with the majority based upon the public health code or the food code.
Routine administration of the accreditation program is the responsibility of the Michigan Public Health Institute. The three-phase process includes a comprehensive self-assessment, site visit by state health department staff, and final status determination. These key components of the process have matured despite the absence of statutes or rule specifying them. Three accreditation cycles have been completed to date.
Because its accreditation program is entirely voluntary, in many respects, Missouri is the state that is most representative of the proposed national accreditation model. Another key point also separates Missouri from its fellow MLC grantees. The Missouri Institute for Community Health, a nonprofit corporation established as a legacy of the Turning Point,11 is the accrediting body. Given the voluntary nature of the program, with its accreditation status conferred by an independent third party, no supporting legal foundation is required. In fact, Missouri public health leaders chose an independent accrediting body rather than a legislatively mandated program because of declining state public health resources.
The process undertaken by local health departments is similar to that in other states. Applicant health departments select from one of three tiers for accreditation: primary, advanced, and comprehensive. There is a detailed self-assessment process that may last up to 1 year. It is followed by a site visit. A final determination is made by the Missouri Institute for Community Health Board of Directors.
The pathway pursued by North Carolina differs substantially from its other MLC counterparts. Following a series of accreditation pilots designed to perfect the process and develop appropriate support, a legal framework supporting accreditation was enacted by the legislature (S804—2005 NC Sess Laws 369). This detailed legislation specifically identifies the components of the accreditation process (self-assessment, site visit, and final board action). It requires a capacity assessment based upon the 10 essential public health services, as well as other domains to be established in rule. In addition, S804 specifies an accreditation board structure with membership allocated among the different classes of key stakeholders. Even accreditation status is addressed, with three categories permitted under law: accredited, conditionally accredited, and unaccredited.
Rules authorized under this statute have since been promulgated (10A NC Admin Code 48.0100 et cet ). In comparison with the statute, greater specificity is directed at the self-assessment process and the site visits. Most significantly, “benchmarks,” or standards, were identified and required for accreditation.
North Carolina is currently developing a state public health agency accreditation program scheduled for unveiling in 2007. At this juncture, in comparison with the local accreditation process, it is voluntary and not legislatively mandated.
Legislation establishing Washington's Public Health Improvement Plan was first enacted in 1993 (Wash Rev Code §43.70.520 ). Based upon the core functions, assessment, policy development, and assurance, and with an eye toward improving health status outcomes, the Washington program is more “assessment” in nature than accreditation, per se. From the outset, statutory guidelines called for standards to be applied to both local and state health departments (Wash Rev Code §43.70.550 ) to assess their capacities to deliver core public health functions. This state-local duality is unique to Washington.
Although rule making was authorized (Wash Rev Code §43.70.580 ), to date it has proven unnecessary in order to implement the enabling legislation. Through the engagement of system partners, a well-developed set of domains and standards has evolved through multiple iterations, along with robust strategies for measuring progress. Each local health department or state health department program completes a detailed self-assessment process in advance of an on-site conformance review. Three cycles of assessment have been completed. Statewide results are routinely compiled for use in performance management.
The state accreditation programs presented here demonstrate a wide range of legal structural foundations. Some, North Carolina, for example, are firmly grounded through enabling statutes. Others derive their general authority under the inherent powers of the state public health agency (Illinois and Michigan). An overall framework is set forth in statute in Washington, with specificity permitted in rule. The Missouri accreditation program, in many respects the one that most resembles the nationally proposed voluntary model, lacks a legal underpinning altogether. Even the option of rule making, typically authorized in statute, to further define standards, has not been universally employed by the state health departments. There is also a substantial reliance on departmental policy and science that is not necessarily specified in law.
The pathways selected by the innovator states described herein have proven effective within their jurisdictions. Remarkably, the legal structures put in place have had limited significance with respect to the evolution of their programs. In large measure, these were models selected by consensus with broad stakeholder acceptance. This same experience may not be shared by successor states, rendering the selection of legal pathway perhaps more important. Even with the profound similarities noted, each program differs substantially from its brethren. Moreover, if ultimately the intent is to migrate away from laboratories of discovery after harnessing the energy of their emerging ideas, and into systems supporting consistency and uniformity—to better guarantee the provision of the essential public health services across the United States—there may be significant roadblocks under the existing myriad state laws.
Assume optimistically for a moment that general agreement is reached on the framework for a national voluntary accreditation program encompassing both state and local health departments. A knotty transition question emerges. The legal system within each of the 50 states and territories must be at a minimum permissive, or more optimally, supportive of national accreditation. Theoretically, state programs mandated in legislation may pose higher hurdles to surmount than accreditation/assessment activities based in rule or departmental policy. Such an existing legal structure would have to be modified to reflect the ability to adopt a national model. Conversely, states without existing programs may wish to establish a legal basis to do so. In most states, these actions would require some form of legislative intervention. Voluntary programs, such as in Missouri, would not pose an issue in terms of altering current law, but on adopting the national model, legislation may prove necessary.
While awaiting events to unfold, some consideration should be paid to the mechanics of transition, especially with regard to states with accreditation efforts already in place. Other programs that all states participate in have successfully dealt with some of these issues. For example, some hospitals wish to participate in Medicare, but do not undergo accreditation through the Joint Commission. Instead they may pursue a parallel option available through the state facility licensing agency. Essentially, Medicare has “deemed” the state-level process equivalent to the Joint Commission accreditation for purposes of enrolling hospitals as Medicare providers. A similar interim arrangement could be fashioned for states with mature accreditation/ assessment programs as they move to adopt a national model.
Another approach for grappling with the inherent tension between the innovation/independence of individual state solutions and the commonality of a unified national strategy relies on an existing resource, the Turning Point Model State Public Health Act.12 Article III of the Model Act anticipated both a national accreditation system and the need for performance management to enable its attainment, and offers flexible language to accommodate them.
Article III, Section 3–104. The state public health agency may participate in a national accreditation program for public health agencies that is based on the ability of agencies to provide essential public health services and functions. The state public health agency may also develop a voluntary accreditation program for local public health agencies or public or private sector partners that may be based on, but not limited to, the national accreditation program.12
Article III, Section 3–103. To improve the public's health, the state public health agency may manage performance related to public health infrastructure and capacity, processes, and outcomes at the state and local levels. In consultation with relevant entities within the public health system, the state public health agency may seek to establish and implement performance standards, measures, and processes for quality or performance improvement….12
If the Model Act is embraced in full, a tangible bypro-duct would be a legal platform that not only supports accreditation but also simultaneously places the 50 states on similar legal footing.
In sum, we emphasize four key points: (1) Because of differing legal foundations, states with existing accreditation programs may have to change their laws to participate in the national program. (2) Other states wishing to adopt the national accreditation program may have to alter their existing public health laws to accommodate accreditation. (3) Changes in law are potential hurdles because they generally will require the intervention of legislatures and other key stakeholders who may choose differing pathways than those recommended. (4) Utilizing a tool such as the Turning Point Model Act may facilitate a common basis for accreditation and a common public health legal infrastructure. Our work with the MLC and other states reveals that states have adopted a variety of legal frameworks to develop their accreditation and assessment programs. Unrecognized, these individual, variegated approaches potentially may threaten the wholesale diffusion of a national accreditation model. As proponents move forward to implement a national program, they should appreciate the possible legal roadblocks that exist. Among options to consider, widespread promotion of the Turning Point Model State Public Health Act offers universal language and the additional dividend of a common public health law infrastructure. Surmounting these potential obstacles may help advance public health practice from local to national in scope.
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© 2007 Lippincott Williams & Wilkins, Inc.