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October 29, 2021

The California Department of Public Health: History, Policy and Powers

by Children’s Health Defense – California Chapter Content Team

Today, the CDPH is one of 22 governmental agencies under the canopy of Health and Human Services. Far from simply investigating sanitation and hygiene to influence best practices, the CDPH maintains a huge surveillance system and data collection agency which it uses to drive policy. Oftentimes, the importance of individual health is trumped by the goal to protect public health. CDPH continues to expand its medical and emergency powers with each perceived or actual threat to health, whether occurring as a result of crime, traffic, hazardous materials, war, or contagion.

The ever-evolving history of the California Department of Public Health (CDPH)

The CDPH began as the California State Board of Public Health in 1870, comprised of a modest board of 7 physicians appointed by the California legislature to communicate with public institutions and investigate health and sanitation. The board used this position to influence education in proper sanitation and hygiene, especially for those entering the medical field. In its infancy, the board held individual and public health in equal value.

The CDPH became a policy forming and regulatory body in 1943, when sections of the Health and Safety code dealing with the duties of the Board and the Director were revised. Policy formation and regulation fell to full-time health officers, under direct authority of the Governor. Additionally, the Public Health Assistance Act by the 1947 Legislature provided millions of dollars for continued expansion of local health services. The director for the CDPH, currently Tomás J. Aragón, M.D., Dr.P.H., is appointed by the Governor, presently Gavin Newsom. Its multi-million dollar annual budget is also allocated by the Governor. CDPH directors and staff work closely with county and city public health officials to oversee and dictate guidance on matters of public health.

The 1991 Realignment, enacted with the passage of the Bronzan-McCorquodale Act, shifted state funding and programming responsibility of public health programs to local health jurisdictions within counties. The counties received dedicated state tax revenue and federal funds. These programs covered areas of mental health, and social services. The State intended to lower cost of services and provide personalized mental health programs. Although local health jurisdictions were obligated to meet certain reporting requirements, counties’ spending went largely unchecked by the state.

Efforts to create a cohesive public health program began to splinter. Three decades since the 1991 Realignment, public services have gradually returned to stricter governmental scrutiny and control. The Sept. 11, 2001 terrorist attacks solidified the decision for increased state and federal oversight as fears over bioterrorist attacks and other emergency health threats surfaced.

In 2002, California created a terrorism response team, to which the Department of Health Services, later named the Department of Public Health, belonged. The Little Hoover Commission, an independent state oversight committee, was integral in the shaping of the CDPH. Its desire was to create an organization independent from Health and Human Services, focused on public safety, but separate from the issues of the insurance programs of Medicaid and Medi-Cal. On July 1, 2007, the Department of Public Health was divided into two branches – CDPH and the Department of Health Care Services (DCHS). CDPH would target public safety while DCHS dealt with insurance program matters.

The CDPH has grown to employ 3,900 people, which includes researchers, scientists, doctors, nurses, administrative, and legal staff. These professionals are spread through various parts of California, with high concentrations working in Sacramento and Richmond. Sacramento houses the executive team, operations, and many of the department programs. Richmond is home to many of its labs, including its drinking water lab, radiation lab, food and drug lab and genetic disease lab.

The CDPH’s tentacles touch just about every aspect of California citizens’ lives, with over 300 programs that fall under one of their six centers, plus six other offices.

A large portion of California Department of Public Health’s work is surveillance.

In order to monitor health, the CDPH collects data on “attitudes and behaviors tracked on phones, in schools, and online surveys” and what they refer to as “retail surveillance,” according to this video. That data is collected through multiple agencies and stored and analyzed in their Surveillance and Statistics Section (SSS). The data is then used to drive outcomes, enforced through policies created through its Office of Regulations. According to Health and Human Services, “agencies create regulations (also known as “rules”) under the authority of Congress to help government carry out public policy.”

CDPH and Regular Policy Processes

Proposals fall into one of two categories which dictate CDPH’s process: regular or emergency.  Both are governed by the Administrative Protection Act (APA).

The regular process begins when the notice of proposed action is published in the California Regulatory Notice Register by the CDPH.  The CDPH then has one year within which to complete the rulemaking process and submit the completed rulemaking file to Office of Administrative Law (OAL).

The APA requires a minimum 45-day period for the public to comment to the agency in writing on the proposed regulation.   Anyone can submit written comment through CDPH before they are adopted. While CDPH may choose not to hold a public hearing, anyone can force a public hearing by submitting a request at least 15 days before the end of the public comment period.

After the comment period is over, and any public hearings have been conducted, the CDPH may revise the proposed regulation, but only a substantive (in their opinion) change would require a new round of public review and comment.  This round is typically only 15 days.

Regulations approved through CDPH next progress to the Office of Administrative Law (OAL).  The OAL has 30 days to approve or disapprove the new regulation.

Approved regulations can be viewed here, and petitions to the CDPH to impose regulatory actions can be viewed here.

CDPH and Emergency Policy Processes

The CDPH can request a proposed regulation be reviewed under the OAL’s emergency rulemaking process.  Emergency rulemakings have a five calendar day comment period that begins when the OAL posts the notice of the pending emergency action on the OAL web site. The law allows the OAL to approve an emergency rulemaking without public comment if “the emergency situation clearly poses such an immediate, serious harm that delaying action to allow public comment would be inconsistent with the public interest.”

Emergency regulations, although they complete an abbreviated process, have the potential to become permanent. According to OAL, “An emergency regulation can become permanent if the agency adopts the emergency regulation through the regular rulemaking process within the time period the emergency regulation is in effect.”

What makes an Emergency?

According to the 2019 California Public Health and Medical Emergency Operations Manual, “broadly speaking, the term emergency can be applied to any situation where quick action is needed to prevent or mitigate an adverse situation.”

California maintains two sets of laws requiring a political declaration or proclamation to enact overreaching emergency powers. The first law is the Emergency Services Act (ESA). Under the ESA three types of emergencies are warranted for such proclamations.

  1. Local Emergency: requires proclamation by the local governing body
  2. State of Emergency: requires proclamation by the Governor (or Director of the California Governor’s Office of Emergency Services, Cal OES, in the Governor’s absence).
  3. State of War Emergency: allowed with or without proclamation.

The second set of laws is contained in the California Health and Safety Code, known as the State of Emergency Plan (SEP). Originally this set of laws was established to mitigate hazardous waste spills. After 9/11 those powers were expanded to include “immanent and proximate threat of the introduction of any contagious, infectious, or communicable disease, chemical agent, non-communicable biological agent, toxin, or radioactive agent.” According to the manual, “Under such circumstances, the local health officer may declare a local health emergency under section 101080 of the Health and Safety Code.”

Under both sets of laws, powers and immunities are granted to governing entities. Additionally, the Governor has the authority to make, amend, and rescind regulations. He must provide them in writing. Regulations go into effect immediately, and remain effective until termination of the emergency. The orders and regulations have the force and effect of law. The state of emergency is required by law to be reviewed and justified every 30 days.

Abuses in the Policy Process: Powers and Immunities

There are abuses of rulemaking. To cover those cases, OAL also adds, “if a state agency issues, utilizes, enforces, or attempts to enforce a rule without following the Administrative Protection Act (APA) when it is required to, the rule is called an ‘underground regulation.’ State agencies are prohibited from enforcing underground regulations. If you believe a state agency has issued an alleged underground regulation, you can challenge the alleged underground regulation by filing a petition with OAL.”

As of January 1, 2019, a number of Health and Safety Codes went into effect that protect those currently abusing power. The Emergency Powers Manual, conveniently updated in 2019, just before the pandemic, outlines revised parameters in the California State Health and Safety Code.

According to the Manual, “CDPH has powers related to communicable disease control that are independent of an emergency proclamation. For example, whenever the public health is menaced, CDPH has the authority to control and regulate the actions of local health officials (Section 131080). At all times, CDPH has the authority to take measures necessary to ascertain the nature of a reported disease and prevent its spread (Section 120140).” This includes “taking possession or control of the body of any living person, or the corpse of any diseased person.”

The manual goes on to state, “this could include orders for isolation, quarantining, or ‘social distancing.’ CDPH also has specific authority to quarantine, isolate, inspect, and disinfect persons, animals, houses, rooms, other property, places, cities, or localities, whenever in its judgment the action is necessary to protect or preserve the public health (Section 120145).”

The manual also includes a section on immunities, beginning on page 3. Immunities are actions for which there is no liability.  If any of these actions are taken during a declared state of emergency and result in harm, the person or agency that took these actions cannot be sued for damages.  This relieves people like nurses, doctors, and politicians from the heavy burden of responsibility for the harm they may cause.

CDPH and Today’s COVID Emergency

The CDPH has been granted an inordinate amount of power. State of Emergency regulations and mandates only end once the emergency has been declared terminated. Since the state of emergency orders need to be revisited and validated every 30 days, creative ways have been found to justify extending the emergency.

Since the COVID pandemic emergency was declared, terms such as herd immunity and vaccine have been redefined.  Tiers have been restructured. Media emphasis shifted the focus from deaths to cases, continuing to hype the numbers. Misleading testing was conducted at different cycles based on vaccination status to skew data. Medical experts who disagree with public health officials are silenced, censored or even threatened with disciplinary action, up to and possibly including revocation of their medical license.

The CDPH has used many of these as justification for confusing orders and guidance.  While these orders and guidance were made possible by the state of emergency, they can be continued by following the processes outlined above.