The Institute of Medicine's 2011 report For the Public's Health: Revitalizing Law and Policy to Meet New Challenges devotes an entire chapter to law and public health infrastructure (IOM 2011). The report recommends once again a review of state and local public health laws to ensure appropriate authority for public health agencies, and it adds some new, important, and practical suggestions: ensuring that health officials have adequate access to legal counsel; routinely evaluating the health effects and costs associated with legislation, regulations, and policies before and after implementation; and using better research methods to assess the strength of evidence regarding the health impacts of public policies (IOM 2011). All these recommendations speak to the need for an integrated approach between PHLR and PHSSR and point to three primary PHLR/PHSSR research questions.
The first question is, what is the relationship between statutory architecture and language and the outputs and outcomes of public health systems? Despite the IOM's repeated recommendations, some people doubt that the legal infrastructure is a significant factor in agency performance (Richards and Rathbun 2003), and although for thirty years this has been a talking point, most legislatures have declined to act. Answering the question is still important, though, because if legal infrastructure does matter, understanding how it matters will allow potentially inexpensive changes in law that can promote greater effectiveness in the delivery of health services. If there is a right way or a best practice in public health infrastructural law, we should know what it is. The IOM committee and many supporters have encouraged states to consider the Turning Point Model Act, but the fact remains that it is based on the wisdom of experience rather than empirical evidence of effectiveness. While innovation and improvement should not await definitive evidence, neither should it proceed in an evidence-free zone. We still do not know whether law works, which law(s) work, or even whether the exercise of law reform is good or bad for public health systems in gaining a place on the policy agenda (DeVille 2009).
The legal relationship of local health departments to one another is an urgent area for integrated PHLR–PHSSR work. Governments across the nation continue to restructure health departments in the face of massive budget cuts. New organizational structures vary from voluntary shared services among local health departments to regionalization and varying levels of centralization in which multiple local health agencies are joined together under the leadership of the state health department (Libbey and Miyahara 2011). What is the best way to share services? Is it best to be voluntary and flexible, or should strict parameters be mandated by law? Should certain types of services be shared? Should particular responsibilities—for example, fiscal decisions—remain under the legal authority of individual local health agencies? How does preemption factor into the considerations? Economics must be balanced with legal requirements for the performance of health departments as outlined in state constitutions and statutory requirements for both state and local health departments (Baker and Koplan 2002; Baker et al. 2005; IOM 2002). As state and local agencies experiment with various models of shared governance, real-time evaluations of the performance of the health agencies and its impact on population health will be needed. The new structures also call for an ongoing assessment of the functions of the health departments and the quality of those public health services.
The second question is, what are the structural/operational determinants of implementation of law by health agencies? Few would disagree with the observation that some health agencies and leaders use legal authority more robustly and more effectively than others do. But why? Is it an accident of personality, background, geography, or local political culture? Does it reflect the way in which a public health agency is organized or its resources and capacities? Is there any sign that legal training for health officials, or health training for lawyers, plays a role? Research that documents how legal authority is used and identifies enabling and retarding factors can help us increase the effective use of legal authority. If we can figure out what the most effective users of legal power know, how they learned it, and how they put it into practice in the context of other governmental agencies and other levels of government, we will have something to offer to health agencies across the land.
The IOM acknowledges the importance of legal capacity and “recommends that every public health agency in the country have adequate access to dedicated governmental legal counsel with public health expertise”(IOM 2011, 7). It is a reasonable suggestion, but there are plenty of questions. Would this be a big change; that is, what is the current state of legal representation for health officials? How does the need for and provision of counsel in health agencies fit within the overall design of legal services in local and state governments? The current biennial health agency surveys by the Association of State and Territorial Health Officials (ASTHO) and the National Association of County and City Health Officials (NACCHO) contain two questions addressing the legal counsel arrangement and legal services provided. The questions, however, are merely descriptive and do not explain the logic for the arrangement or the mechanism by which the provision of services occur; future research must address this gap. Jacobson and colleagues’ work on preparedness makes a good start (Jacobson et al. 2011). The PHLR's National Program Office (NPO) has undertaken a formative study of legal representation available to health officials at the state and local level.
The empirical study of regulation and governance, which focuses on the effective use of regulatory authority, has largely neglected public health agencies (Braithwaite, Coglianese, and Levi-Faur 2007). The IOM report mentions two important implementation issues arising from our federal system: preemption and coenforcement. Preemption is a constraint: federal law can supersede state law, and state law can supersede local law. Preemption can bring uniformity, but it can also cut off policy innovation. It is, politically, a weapon of choice for any interest group that wants to set a broadly applicable standard, so it is a regular topic of health policymaking. Knowing more about how the risk or reality of preemption is managed by public health agencies can help us assess whether its overall impact on enforcement is positive or negative. By contrast, coenforcement—when state and federal agencies jointly enforce health and safety regulations—is a potential source of new practical authority and efficiency, but it has not yet been shown by evidence to be positive. The need for research on the relationship of federal, state, and local governments reinforces the need for more sophisticated analyses that can account for hierarchical relationships.
Accreditation, which the IOM recommends and which has had an enthusiastic reception in public health practice, is seen as a way of both improving agency performance and increasing agency credibility and influence (Bender and Halverson 2010). As a moving target, accreditation in recent years has presented a number of pressing legal issues relating to how current state law would influence the process. PHLR funded a legal mapping study and also case studies of pilot accreditation implementation. The legal mapping study found an unexpected synergy between the emerging accreditation movement and an interest in regionalization largely driven by increasingly severe budget pressures (Matthews and Markiewicz 2011). As accreditation settles in and budgets stabilize, research at the intersection of PHLR and PHSSR will be needed to determine whether accreditation is bearing fruit. With time, we will be able to get a clearer picture of how legal infrastructure influences the choice to be accredited and the success of the process and how accreditation influences agency performance, including enforcement of law, achievement of basic outputs, and ability to devise and promote new uses of legal authority. The challenge is to ensure that research on accreditation examines the legal issues in a sophisticated and determined way.
Finally, the third question is, what individual and system characteristics influence the ability of public health systems and their community partners to develop and secure enactment of legal initiatives to advance public health? We have a toehold in the climb to understand the role of health agencies in promoting innovation in public health law. Case studies in areas like tobacco and HIV document the contest between those promoting health regulations and those who oppose them on ideological or economic grounds. There is no magic bullet to be discovered, no secret to winning in the political process. The importance of the research is in increasing the odds for healthy public policy by identifying the strategies and mind-sets of agencies and leaders that come up with and are able to advance laws and regulations that improve the public's health.
The IOM offers a ringing endorsement of a Health in All Policies approach (HIAP). HIAP advocates collaboration between government and the private sector to devise and implement coordinated strategies to promote health (Collins and Koplan 2009; IOM 2011). This entails creating coalitions or councils of the many public and private actors whose activities are important to health. Data on the known or potential effects of policies are seen as essential to moving diverse stakeholders to align their interests and agree on action. A health impact assessment (HIA) is “a combination of procedures, methods, and tools by which a policy, program, or project may be judged as to its potential effects on the health of a population, and the distribution of those effects within the population” (Dannenberg et al. 2008, 241). From a research perspective, the question is whether a HIA does in fact mobilize and inform stakeholders, put health on the agenda, and produce better policy outcomes for health. Although a new development in the United States, the HIA has been used for more than a decade in Europe, and some cautionary findings have emerged (Wright, Parry, and Mathers 2005).