Creating a Bureaucracy to Manage Health Care and Infectious Disease at the State Level
Is it possible to create an organization and its "Manager"that can do this without corruption? A case study, using Lessons Learned from the Covid-19 era
Part I: A Bill Authorizing Reorganization of the State Healthcare Bureaucracy
Introduction
Every state has a position that is responsible for disease management and health care facility standards. That position might be called Surgeon General, Health Commissioner, Secretary of Health, etc. The position is bureaucratic, either appointed by the Governor or nominated by the Governor and then approved by the Legislature, probably the Senate. (I’m not aware of any state where the head of a state Health Organization is elected.) In South Carolina, until July 1 of this year, that position is called Director. A bill was passed last year, resulting in Act 60, that created a new position with the lofty title of “Secretary of Health and Policy.”
The organization the position heads might be called the Department of Health, The Department of Health and Human Services, the Department of Health and Environment, etc. In South Carolina that organization is currently called the Department of Health and Environmental Control. However, with Act 60, the department is being eliminated as of July 1, with the responsibilities spread over other departments. A new department, the Department of Public Health, will rise, created to include all of the most direct human health responsibilities.
A new administrative department was created by Act 60, called the “Executive Office of Health and Policy.”
There is currently a bill in the Legislature that is the subject of contentious debate, S.915. It passed the Senate but failed to pass the House at the last minute due to a little used legislative maneuver.
I can say that, without a doubt, it is a bill with high stakes. However, it is not a partisan bill: the Republicans hold a super majority in both chambers. Rather, it is a bill that pits the Uniparty against healthcare reform activists.
This and some 25 posts that follow provide an in depth analysis of the current law of most states, including South Carolina, as well as the legislation that has been submitted to “reform” the existing organization. I can say that there has been nothing in this reorganization attempt that has been directly influenced by some “Lessons Learned” evaluation of the state’s performance during the Covid-19 era. The motivation of the legislators is elusive to the citizens and to this writer.
The organization of this analysis is:
(1) Describe and critique the content of the bill that authorized the reorganization (S.399 aka Act 60)
(2) Describe and critique the existing law, called Title 44. This is of interest to almost every state, since the organization and even the wording in the Title follows the “Model State Emergency Health Powers Act” drafted by the CDC in 2001.
(3) Posit a problem that consumes all state law and that makes most of that law untenable: it is very difficult to impossible to build checks and balances into the bureaucratic structure that implements any state health law. I call this The Deep State Conundrum.
(4) Review and critique the bill that is the subject of debate in the South Carolina: Bill S.915.
(5) Present a new comprehensive set of bills that avoid, at least to a very great extent, the Deep State Conundrum. These bills were the result of a real Lessons Learned analysis of the state’s, the nation’s, and the world’s Covid-19 era healthcare management performance.
Bill S.399/Act 60: The New Organization Is Outlined
So, let’s start. Last year, a bill, S.399 (https://www.scstatehouse.gov/query.php?search=DOC&searchtext=399&category=LEGISLATION&session=125&conid=41684280&result_pos=0&keyval=1250399&numrows=10), now Act 60, was passed that reorganized and distributed the responsibilities of the “old” healthcare bureaucracy, DHEC, as follows:
· Specific Health responsibilities would be subsumed by a new department, the Department of Public Health
· Specific Environmental responsibilities would be subsumed by a new department, the Department of Environmental Services
· Some responsibilities related to milk and dairy would be part of a new division in the Department of Agriculture
· Responsibilities related to the management and operation of veterans homes were transferred to the Department of Veterans’ Affairs
· A list of responsibilities related to environmental control that was transferred to other departments are retained in the new department. (Beyond the scope of this discussion)
The Act went through a list of responsibilities of the new Department of Public Health. The ones of interest to this discussion are in Section 44-1-140:
(5) the care, segregation, and isolation of persons having or suspected of having any communicable, contagious, or infectious disease; and
(6) the thorough investigation and study of the causes of all diseases, epidemic and otherwise, in this State, the means for the prevention of contagious disease and the publication and distribution of such information as may contribute to the preservation of the public health and the prevention of disease.
B) The department may make separate orders and rules to meet any emergency not provided for by general rules and regulations, for the purpose of suppressing nuisances dangerous to the public health and communicable, contagious, and infectious diseases and other danger to the public life and health.
The bill provides information on the appointment of the Director of Public Health:
Section 1-30-135: There is hereby created, within the executive branch of the state government, the Department of Public Health, headed by a director appointed by the Governor, with the advice and consent of the Senate. The divisions, offices, and programs of the Department of Health and Environmental Control performing functions related to regulation and protection of the public health prior to the effective date of this act, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property, and all contractual rights and obligations associated with these divisions, offices, programs, and other related entities, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Public Health.
Elsewhere in the Act are further directions:
Section 1-1. There is created the Department of Public Health to be headed by a director who is appointed by the Governor pursuant to Section 1‑30‑10, with the advice and consent of the Senate; provided, however, until the Governor appoints the initial director after creation of the Department of Public Health, the Director of the Department of Health and Environmental Control shall serve as the Director of the Department of Public Health.
This means that the current DHEC director, who IMHO should be charged with at least dereliction of duty, malfeasance, and perjury for his actions during the Covid era, will become the first Director of the Department of Public Health. There is no time-limit on his term of office, but I have to presume, unless the wording above implies that the Senate can immediately not consent to the current Director of DHEC taking the new position, that the next Governor could make a proper appointment.
In the current DHEC structure, The Director of DHEC was selected by and reported to a board called the “South Carolina Board of Health and Environmental Control.” By Section 10-30-3 of Act 60 this Board was abolished.
Thus, in an org chart, the Director of Public Health reports directly to the Governor as a civil servant employee cabinet appointee.
In this bill were instructions to the Department of Administration:
2. (A) It is the intent of the General Assembly to restructure and transfer the programs, services, duties, and authority of the Department of Health and Environmental Control into the Department of Public Health or the Department of Environmental Services. Accordingly, the Department of Administration immediately shall commence the process of analyzing the circumstances and determining the best manner to efficiently and effectively restructure and transfer all programs, services, duties, and authority of the Department of Health and Environmental Control to the Department of Public Health or the Department of Environmental Services, consistent with the provisions of this act. The Department of Health and Environmental Control shall cooperate with the Department of Administration and assign such personnel as requested by the Executive Director of the Department of Administration to assist the department and enable it to complete its duties under this SECTION. To complete its duties under this SECTION the Department of Administration shall consult with the existing Director of the Department of Health and Environmental Control and the existing Director of Environmental Affairs of the Department of Health and Environmental Control.
2. (B) The Department of Administration's analysis required by this SECTION must include the submission of a report to the General Assembly no later than December 31, 2023, with specific recommendations of statutory changes needed throughout the South Carolina Code of Laws to reflect the restructuring and transfer of the health‑related programs, services, duties, and authority of the Department of Health and Environmental Control to the Department of Public Health and to reflect the restructuring and transfer of the environmental related programs, services, duties, and authority of the Department of Health and Environmental Control to the Department of Environmental Services. The Department of Health and Environmental Control shall assign such legal, programmatic and administrative personnel as requested by the Executive Director of Department of Administration to assist the department in identifying statutory provisions requiring change and in suggesting appropriate language to effectuate required changes. The Code Commissioner shall be available to consult with and assist the Department of Administration in making the recommendations required by this SECTION.
Another Section of this Bill, which would be labeled Section 13, gave more direction:
SECTION 13. (A) This SECTION is effective upon approval by the Governor.
(B) The Department of Administration shall identify, select, retain, and procure the services of independent, third-party experts, consultants, or advisors to analyze the missions and delivery models of all state agencies concerned with the overall public health of the State, as well as certain specific populations including, but not limited to, children and adolescents, newborns, pregnant women, the elderly, disabled, mentally ill, special needs individuals, those with chemical dependencies, the chronically ill, economically disadvantaged, and veterans. This analysis will include, but not be limited to, the Department of Health and Environmental Control and its successor entities, the Department of Mental Health, the Department of Alcohol and Other Drug Abuse Services, the Department of Disabilities and Special Needs, and the Department on Aging. Any agencies identified by the Department of Administration as being subject to this analysis shall provide the department with any and all information requested and shall fully participate as requested and required.
(C) The analysis procured by the Department of Administration shall consider whether structural changes are necessary to improve health services delivery in the State, recognize operational efficiencies, and maximize resource utilization. Structural changes to be analyzed include reorganizations or mergers of existing health agencies, or divisions or components thereof, as well as the establishment of any new health agencies or the privatization of services currently provided by existing health agencies.
(D) The third-party experts, consultants, or advisors must make appropriate recommendations based on the analysis required pursuant to this section and the benefits of each recommendation.
(E) The Department of Administration shall prepare a final report summarizing the aforementioned analysis and recommendations and shall submit the final report to the President of the Senate, the Speaker of the House of Representatives, the Chairman of the Medical Affairs Committee, the Chairman of the Medical, Military and Municipal Affairs Committee, the Chairman of the Finance Committee, the Chairman of the Ways and Means Committee, and the Governor by April 1, 2024, and shall submit interim reports on October 1, 2023, and January 1, 2024.
Therefore, the bill went beyond creation of two new departments. It required an analysis of all state agencies that might be related to public health, with recommendations on reorganization to move those agencies to the new department. This was going to be (and is) a boondoggle for the deep state. And it would make the contractor a lot of money ($5 million?) It had the potential to become what became to be known by the critics as a “Health Czar.”
News article on the DHEC Reorg (The article shows MSM bias)
A consulting company was hired, presumably by the Department of Administration, to recommend the restructuring. This organization was from Massachusetts and, since I have lived in New England, I expected I knew the philosophy of this group. I didn’t have to know, however. They spelled out their philosophy and project summaries on their web site.
In my opinion and background doing the same kind of work for half a century, they were not going to produce a recommendation that fit with South Carolina’s culture. In a subsequent post, Part III, I will begin to present this year’s bill that followed up with specific directions on how Act 60 would be implemented, Bill S.915. However, there is another set of Constraints... no, let’s call them assumptions, because any of them could have been modified in S.915, but weren’t, at least to begin with. These “Constraints” are spelled out in Title 44. I’ll discuss that law next, as Part II.
There are a couple parts of Act 60/S.399 that are better discussed in the next post, Part II, as well because they related specifically related to how infectious disease is managed, and seeing the changed text and the text together, in context, is probably more educational.
Here’s a thought. Eliminate them all.