Pennsylvania\u2019s Department of Health has proposed new disease-control rules. Some of it is simple housekeeping, like updating a list of reportable illnesses. But other parts go much further. They would let state investigators enter homes without a warrant. They would let investigators pull students from class for private interviews, without telling parents. They would order pregnancy blood tests with fewer safeguards than current rules. And they would build a permanent database that includes people\u2019s race and ethnicity. I run a nationwide constitutional and firearms-law practice. I recently filed formal comments asking the state to fix these parts.<\/p>\n
Start with where this all began. In 2021, Pennsylvania\u2019s Supreme Court ruled that the Health Department did not have the power, under this same rule, to order a school mask mandate during Covid-19. The rule was limited to disease \u201csurveillance,\u201d and masking did not fit that limit. The court noted that the department could rewrite the rule to strip out that limiting word. This proposal is that rewrite. As written, it lets the department pick \u201cany other disease control measure\u201d it wants, whenever it wants, without asking anyone first. That is not a narrower rule. It is a blank check.<\/p>\n
The proposal also lets investigators enter an apartment, a school, or a business without a warrant. They would not need the resident\u2019s consent. They would not need to show any emergency. And refusing them entry would itself be a crime. The rule never says whether force could be used to get in anyway, or who could use it \u2014 a state health worker, a local health worker, or a police officer. In 1967, the U.S. Supreme Court ruled in Camara v. Municipal Court that this kind of government inspection generally needs a warrant. The Court allowed exceptions for real emergencies, like quarantine. This rule is not limited to emergencies. A single reportable illness would be enough, and the list would soon cover 125 of them. Just eighteen days before this proposal came out, Pennsylvania\u2019s Supreme Court ruled that a game warden can no longer walk onto posted land without the owner\u2019s permission. Under this proposal, a disease investigator could still walk into someone\u2019s apartment.<\/p>\n
Then there are the schools. The proposed rule requires a school to pull a student from class for a private interview with a state investigator about the student\u2019s sexual partners. Nothing in the rule says a parent must be told. In a case called Troxel v. Granville, the U.S. Supreme Court called a parent\u2019s right to raise a child one of the oldest rights in American law. A police officer cannot pull a student aside to question him about a crime without telling his parents. This proposal would let a health investigator do exactly that.<\/p>\n
The pregnancy rules raise a different problem. State law already requires a blood test during pregnancy for certain diseases. But it comes with real safeguards: a duty to counsel a patient who objects, a free test for a patient who cannot pay, and a clear next step if the result is positive. The new rules for hepatitis C and HIV testing drop every one of those safeguards. The HIV rule also skips information and paperwork a separate state law already requires before testing. And neither new rule says what happens if the patient refuses. The existing rules make clear that a patient\u2019s refusal ends the matter. These new ones are silent \u2014 including on whether force could be used to take the sample anyway, and who could use it.<\/p>\n
The department also wants two databases, one for immunizations and one for birth defects, to include every patient\u2019s race and ethnicity. There is no limit on how long that information can be kept, and no rule for deleting it. The department gives itself broad power to decide when to share it.<\/p>\n
Finally, the numbers do not add up. The department\u2019s own preamble says the rule will have \u201cno overall fiscal impact,\u201d eight separate times. Seven of those times, it admits in the same breath that it lacks the data to do the math. Yet it did calculate its own first-year staffing cost, down to the dollar: $1,523,977. It counted what the rule costs the state, but not what it costs the schools, hospitals, and medical practices that must comply.<\/p>\n
None of this means Pennsylvania cannot update its disease-reporting rules. Most of the proposal is ordinary housekeeping, and nobody is asking the department to stop tracking real outbreaks. The request is narrower: bring back the warrant requirement, tell parents when the state wants to question their child, restore the safeguards already used for similar tests, limit how long personal data is kept, and give the public a real cost estimate. The public comment period gives the department a chance to fix these problems before the rule becomes final.<\/p>\n
Jonathan S. Goldstein is the managing partner of Goldstein Law Partners and a Lecturer in Law at the University of Pennsylvania Carey Law School. His firm challenged Pennsylvania\u2019s COVID-19 emergency orders in state and federal court.<\/p>\n","protected":false},"excerpt":{"rendered":"Pennsylvania\u2019s Department of Health has proposed new disease-control rules. Some of it is simple housekeeping, like updating a…\n","protected":false},"author":2,"featured_media":281457,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[111167,46,7619,33,742,28,24528,30,29,117630,45741],"class_list":["post-281456","post","type-post","status-publish","format-standard","has-post-thumbnail","category-pennsylvania","tag-civil-liberties","tag-courts","tag-covid-19","tag-josh-shapiro","tag-law","tag-pennsylvania","tag-pennsylvania-department-of-health","tag-pennsylvania-headlines","tag-pennsylvania-news","tag-pennsylvania-state-constitution","tag-warrants"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/posts\/281456","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/comments?post=281456"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/posts\/281456\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/media\/281457"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/media?parent=281456"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/categories?post=281456"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/tags?post=281456"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}