COLORADO PUBLIC HEALTH PRACTICE-BASED RESEARCH NETWORK An Examination of State Laws & Policies Regarding Public Health Agency Accreditation Prerequisites Introduction The Public Health Accreditation Board (PHAB) begins accepting applications for national, voluntary accreditation in the fall of 2011. There are three prerequisites for accreditation: health assessments, health improvement plans, and strategic plans. These prerequisites must be in place for a state or local public health agency to apply for Public Health Accreditation Board accreditation. These requirements require time, resources, and staff and community commitment. Completion of the prerequisites can become a barrier for agencies who are considering applying for accreditation. This project looked at all 50 states through a legal lens to identify laws, rules, executive orders, contracts, legislative resolutions, and other tools that are used to mandate that a state or local health department complete one or more of the prerequisites. The results include key findings, and importantly, an inventory of laws and legal tools that are being used around the country to require compliance with these prerequisites. In addition, the project identified the current environment in each state regarding the completion of the prerequisites and preparation for accreditation, and any laws that directly refer to public health accreditation. Methods The research team, housed in the Colorado Association of Local Public Health Officials (CALPHO), reviewed the laws, regulations and related documents of all 50 states. The purpose of the review was to identify mandates for completion of the three prerequisites for accreditation. These mandates include health assessments, health improvement plans, and strategic plans at the state and community level. In addition, the legal team inquired regarding whether public health accreditation was included in any laws or regulations. The legal search was followed by an interview with one or more public health professionals in each state to verify results and determine the current status of preparation for accreditation. A comprehensive legal review was completed by a team, under the direction of a law professor and a law librarian. This legal research team began by developing a standardized search term methodology. Collection of search terms began with recommendations from the research team and national experts in accreditation and the prerequisites who participated as the Project Advisory Committee. The search terms were then fine‐tuned through testing of states and confirmation with state‐level contacts. Once the standardized search was performed on a state, research team leaders interviewed key informants in the state to verify the located laws, to gather information about additional laws and 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 databases such as template, contracts and guidelines. A summary was written for each state 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 development team categorized and coded every law and tool in each state. The development of the database was also an iterative process wherein the database team fine‐tuned the coding through the testing of 5 states and coding by multiple team members. Additional coding adjustments occurred and tools were re‐ coded accordingly. A small matrix was created to indicate mandates at the state level. The database, state summaries and narrative were cross‐checked to ensure consistency and clarity.
Themes and Trends Key Findings: 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.” (Sec. 26. 18 VS.A. 5) Maine also addresses accreditation in a statute which was passed following a public health workgroup report issued in 2009. This recent 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 titled House Bill 173 which created a pilot program to assist local health departments 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. Iowa and North Carolina have state accreditation in their laws and regulations. Michigan achieves state accreditation through contract requirements. States with Mandates for the Prerequisites Twenty‐four states have some kind of a mandate regarding one or more of the PHAB prerequisites. New Jersey Alaska New Mexico Colorado New York Connecticut North Carolina Florida Oklahoma Idaho Oregon Illinois Texas Indiana Virginia Maryland Washington Michigan West Virginia Minnesota Wisconsin Montana Wyoming New Hampshire Strategic Plan Mandates Fifteen of the states have a mandate, either through law or by executive directive for strategic planning. Alaska has an Executive Branch mandate to complete a performance management plan that includes a strategic plan. Florida has a legal mandate for all agencies to complete long range program plans, which could be a basis for a strategic plan. Idaho has a statute that mandates that every state department have a strategic plan. Montana has a legal mandate to do a strategic plan every five years. New Mexico has a statutory requirement to develop a strategic plan that must be updated every 4 years. North Carolina includes strategic planning in its mandates related to state accreditation. Oklahoma requires local health departments, which are operated by the state, to complete strategic plans, through a policy decision. 2
Oregon requires an annual plan from each county and district health department which could constitute a mandate for a strategic plan at the local level. Texas has a mandate at the umbrella agency level for a strategic plan every even‐numbered year.* Virginia has a strategic plan mandate through its budgetary process. Washington has a mandate for strategic plans at the state and local level through policy and contract language. West Virginia has a statutory mandate for a state plan of operation which can suffice for a strategic planning mandate. There is a requirement at the local level for a program plan to receive state funding. This is interpreted as a local strategic plan mandate. Wisconsin has an administrative mandate by the director of the Department of Health Services to develop a strategic plan. Strategic plans at the local level are implied in the law requiring an annual report to the local board of health. Wyoming has statutory mandate which applies to all state agencies to complete a strategic plan. *While Texas has a requirement for a “Comprehensive Strategic and Operations Plan,” that statute is on a list to be abolished and applies to the umbrella agency of the Texas Department of State Health Services. Health Assessment and/or Health Improvement Plan Mandates Sixteen states have a mandate for either a health assessment and/or a health improvement plan at the state and/or local level. One state has a mandate for PHAB accreditation. Colorado has statutory requirements for a health assessment and a health improvement plan at both the state and local level. This is a new law that is currently being implemented. Connecticut has a legal requirement or mandate for a multi‐year statewide plan with assessments of the health of the population. This could be considered a mandate for both a SHA and a SHIP. Florida has a policy directive to complete state and local assessments and improvement plans. There is a state mandate for all agencies to complete a long range plan. Illinois has an implied mandate for local assessments and improvement plans. In order to receive state funds, local agencies must be certified, a process that requires an assessment and plan every 5 years. Indiana has a state agency legal mandate to prepare a 5 year state health assessment and state health plan. Legal requirements for local boards have not been enforced in recent years due to reduced funding. Maryland has an executive branch mandate to complete a SHIP. There is also statutory language for local assessments and plans, but due to reduced funding it is not being enforced. Michigan has a statutory mandate to complete a state health assessment and set priorities. Minnesota has a statutory requirement for local agencies to complete an assessment and set priorities that is required every 5 years. In addition, the Commissioner of Health is required by law to set public health goals biannually. New Hampshire has statutory language that requires a bi‐annual statewide health assessment, but the statutes have not been used. New Jersey used rule to create a mandate for CHAs and CHIPs at the local level. New York has statutes and regulations that mandate a CHA and a CHIP every 4 years for the local health departments. North Carolina has a mandate for local health departments to prepare CHAs and CHIPs every 4 years as part of the mandatory state accreditation program. Oklahoma has a mandate from a Senate Joint Resolution to create a State Health Improvement Plan. Vermont has a mandate for accreditation. There is no explicit mandate for a SHA and a SHIP, but they will be needed to meet the mandate for accreditation. Washington has mandates at the state and local level to develop assessments and plans. West Virginia requires local health departments to meet standards through rule. 3
Wisconsin has a legal mandate for a public health agenda which is being interpreted as a requirement for a robust SHA and SHIP.
General Authority Some states have explicit authorization, but not mandates, in law 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, had either a mandate listed above, or were comfortable using general public health authority to complete one or more of the prerequisites. Related Findings CDC Funding Makes a Difference The CDC National Public Health Infrastructure Initiative, also called NPHII, has created a great deal of new activity and enhanced leadership at the state agency level. This funding, with its charge to designate a Performance Improvement Manager, has stimulated 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, particularly regarding the prerequisites and other aspects of accreditation preparation. Two states, Oregon and Utah, cited the laws that empower the local health directors with direct influence in the distribution and even the application for funding for public health. Thus, the local health departments in these states participate in the decisions about distribution of funding between the state agency and the local agencies. The Broad Nature of Many Certificate of Need Laws The research project came across many instances of laws which appeared to support public health assessments and planning, especially requirements for a state health plan. These were frequently related to Certificate of Need Programs. The general language of these laws raises an interesting legal question: Can these broad laws be used to support the prerequisites for accreditation or does legislative intent over‐ride the use of this broad language? For example, the state and regional health plans mentioned in Virginia law and others use broad language, but are intended to support CON decisions, not public health priorities. They often refer to data, research, analysis and input, features also needed for public health assessments and plan. This was also true of legal language regarding rural health assessments and plans, which were deemed by the states through the interview process as too narrow to support the PHAB prerequisites as a mandate. These legal search findings validated the need to include an interview process with a legal review. Non‐profit Hospital Requirements under ACA and PHAB Pre‐requisite Requirements Section 9007 of the Affordable Care Act – the federal health reform law enacted in 2010 – requires hospitals wishing to retain their non‐profit status to conduct a community health needs assessment [“CHNA”] at least triennially, and to have an implementation strategy for meeting the needs the assessment identifies. The similarity between the CHNA requirement and PHAB’s Standard 1.1 [“CHA”] has not gone unnoticed by some state health officers. Two specifically mentioned the possibility of local health departments working collaboratively with non‐profit hospitals, with the objective of creating both a CHNA and a CHA through a joint effort. In one state, however, the key informant found an instruction to do that problematic, requiring the LHD to work with a type of agency and in an initiative with which it was not familiar. The CHNA requirement, which is now the subject of commentary and debate in the IRS regulations, is neither a law mandating CHAs by public health departments, nor in the main a law inhibiting efforts at PHAB accreditation. In addition, there are differences as well as similarities – the CHNA cycle, for example, is not the same as that of the CHA. While that difference may be easily addressed, the question of how the CHNA for a hospital’s coverage area would correlate with a local or regional health department’s jurisdiction is an open one. 4
The ACA rule is nonetheless a part of the legal environment of interest to PHAB accreditation, and may become of greater interest to health departments contemplating accreditation in the near future as the contours of section 501(r) become clearer and better known. The possibilities for mutual economic benefit at the least may be attractive. Barriers to Completing the Prerequisites and Applying for Accreditation States were asked if there were barriers to completion of the prerequisites and to applying for accreditation. Only one state cited the lack of specific legal authority for accreditation as a barrier. The commonly cited barriers 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 accreditation and the prerequisites were also noted. Several respondents noted the need for training in strategic planning. There were also concerns about the smaller, rural agencies and their ability to meet standards and be knowledgeable about accreditation. Categorical funding and the program silos at the state level were seen as barriers to cross‐cutting work like the prerequisites. In addition, several key informants noted that the fees to apply for PHAB are a barrier. A focus on clinical services is a barrier in some states. Also, there are concerns that community health assessments will “trip over” the work of the non‐profit hospitals in their communities. One state noted a prohibition of unfunded mandates as a hindrance. Finally, changes in administration at the gubernatorial and agency level were seen as delays in implementation due to transitions that often mean new priorities and a need to inform new decision‐makers. Impact of Reduced State Funding on Previous Work 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. Indiana no longer enforces a law that requires a local plan of community health services. Maryland has dropped its requirement to develop a local plan and assessment of local health needs. Missouri required the prerequisites through contract language until 3 years ago, dropped due to budget cuts. New Mexico no longer expects community health assessments from the community health councils. Pennsylvania has reduced its support for funding local partnerships that affiliate with the State Health Improvement Plan. Tennessee reports a reduction of local health agency work on assessments and planning due to budget cuts. Washington has created a new option for local agencies to be reviewed against a tier of standards which includes a basic set of standards, due to budget issues. For the first time, a local agency has chosen to forgo state funding by not participating in a standards review. Summary Twenty‐four states have some mechanism that mandates one or more of the prerequisites for PHAB accreditation. These mandates are not all enforced, and in some cases, although the legal language appears to be clear, the use of the statute may not be current. In one case, the state did not even know that the law existed. Fifteen states have a mandate regarding strategic planning, often linked to the annual or biannual budget process. Sixteen of the 24 states have some kind of mandate regarding assessments or planning at the state or local level. One state (Vermont) has a mandate for PHAB accreditation. Another state (Maine) has a mandate to report to a committee of the State Legislature on the progress toward achieving accreditation. The project identified numerous ways in which mandates are administered. These include public health laws, laws that apply to all state departments, legislative resolutions, regulations, executive branch directives from 5
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 accreditation language. Thus, examples in the inventory provide numerous options and models as states look at how best to institutionalize infrastructure improvement strategies. While the prerequisites for PHAB accreditation can be a barrier to applying for accreditation, there are also numerous legal and administrative tools being used around the country to have these requirements in place.
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State‐based Matrix of Requirement and Authority Other Legal Legal Legal or State Statutory or Tools Authority HA, Administrative Regulatory IP or SP Authority for Requirement HA, (may/can/ IP or SP Accreditation authorized to) (must/shall) Alabama Alaska x x Arizona x Arkansas California Colorado x Connecticut x x Delaware Florida x Georgia Hawaii Idaho x Illinois x x Indiana x x Iowa x x x Kansas Kentucky Louisiana Maine x x Maryland x Massachusetts Michigan x x x Minnesota x Mississippi Missouri x Montana x Nebraska x x Nevada New x Hampshire New Jersey x New Mexico x New York x North Carolina x x North Dakota x
General Powers and Authority Only
x x x x x x x x x x x x x x
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State
Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming
Statutory or Regulatory Authority for Accreditation x
Legal or Administrative Requirement HA, IP or SP (must/shall) x x x x x x x x
Legal Authority HA, IP or SP (may/can/ authorized to) x
Other Legal Tools
General Powers and Authority Only
x x
x x x x x x
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References Ibrahim, J (2010). Creating a Public Health Law Database. [Webinar] Retrieved from http://publichealthlawresearch.org/methods‐guide/creating‐public‐health‐law‐database Larkin, M. A. and McGowan, A. K. (2008), Introduction: Strengthening Public Health. The Journal of Law, Medicine & Ethics, 36: 4–5. Matthews, G. and Markiewicz, M. (2011) Legal Frameworks Supporting Public Health Department Accreditation: Key Findings and Lessons Learned from Ten States. Retrieved from http://www.publichealthlawnetwork.org/wp‐ content/uploads/Accreditation‐Legal‐Full‐Report.pdf Public Health Accreditation Board at www.phaboard.org Public Health Law Research. (2011) PHLR Distracted Driving Laws: Codebook, Retrieved from http://publichealthlawresearch.org/sites/default/files/DDLawsCodebook_Summer%202011%20Update%20(2).p df Sellers, K (2011). Governance Classification of State and Local Health Departments. Presented at the Keeneland Conference, Lexington, KY. Retrieved from http://www.publichealthsystems.org/media/file/Shah1D_2011.pdf Shah, G, Leep, C and Novich, R. (2011). Local Health Departments’ Governance: A Visual Display Using LHD Shape Files. Presented at the Keeneland Conference, Lexington, KY. Retrieved from http://www.publichealthsystems.org/media/file/Shah1D_2011.pdf
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Acknowledgements Research and Project Team Lee Thielen, MPA Edward Dauer, LL.B, MPH Lisa VanRaemdonck, MPH, MSW Diane Burkhart, JD Christopher Bui, JD, MPH Sarah Lampe, MPH Corine Waldau, MPA Student Research Team: Josephine Colaccio, Travis Gardner, Martha Meyer, Lauren Peek, Dieter Raemdonck, Catherine Rodemyer, Erica Chavez, JD Advisory Committee Members Gene Matthews, JD Glen Mays, MPH, PhD James Hodge, Jr., JD, LL.M James Pearsol, M.Ed Julia Joh Elligers, MPH Julie Marshall, PhD Kaye Bender, PhD, RN, FAAN Advisory committee members provide critical guidance, feedback, expertise and information throughout the project. Special database consultation and methods insight provided by Evan Anderson, JD and Public Health Law Research, a national program of the Robert Wood Johnson Foundation at Temple University. A sincere thank you to the 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. This project was funded through a grant from the Robert Wood Johnson Foundation.
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