Pennsylvania residents are currently being asked to weigh in on a sweeping rewrite of the state’s communicable-disease regulations.

There is just one problem.

The proposal is roughly 500 pages long.

The Pennsylvania Department of Health’s proposed overhaul of 28 Pa. Code Chapter 27 was published Aug. 8 and remains open for public comment through Sept. 21. The regulations govern everything from disease reporting and investigations to contact tracing, quarantine, isolation, schools, medical records and other disease-control measures.

That is a lot to ask an ordinary resident to digest.

And right now, understanding those rules is more than an academic exercise.

Pennsylvania is in the middle of a significant measles outbreak. As of Aug. 28, the Department of Health was reporting 460 confirmed cases across 31 counties. Earlier in the week, state officials announced two “measles-associated deaths” involving Lancaster County residents — Pennsylvania’s first such reported deaths in 35 years.

That announcement has since generated questions about how the state characterized at least one of those deaths.

Lancaster County Coroner Stephen Diamantoni has said a newborn who tested positive for measles died following a laceration of the spleen and that the forensic pathologist did not believe measles caused the injury. State health officials continue to stand behind the classification of the death as “measles-associated,” explaining that measles does not have to be the immediate cause of death for the state to use that terminology. Medical experts have also said there are plausible ways measles could contribute to spleen complications, meaning the medical question is not necessarily as simple as “with measles” versus “from measles.”

The dispute has become highly political.

We are not interested in adjudicating that fight.

But it raises a much more useful question for Pennsylvania residents:

What authority does the Department of Health currently have during an outbreak — and what additional or clarified authority is it asking Pennsylvania to give it?

That is what this series will examine.

Rather than attempt to summarize 500 pages in a single article, Upper Merion Area Spotlight will work through the proposal piece by piece.

For each significant change, we will try to answer four basic questions:

What does Pennsylvania’s rule say now? What does the Department of Health want to change? Why does the department say the change is necessary? And what could the change mean in practice?

We begin with one of the most important provisions in the entire proposal.

Section 27.60 governs “disease control measures.”

Under the existing regulation, the Department of Health or a local health authority can order isolation for someone with a communicable disease and quarantine, surveillance or other measures involving people who have been exposed.

The regulation also contains broader language allowing health authorities to use “any other disease control measure” considered appropriate for the surveillance of disease when necessary to protect the public from the spread of infectious agents.

That final part — specifically the word surveillance — became extremely important during the COVID-19 pandemic.

The proposed regulation would expand that language.

Instead of allowing another disease-control measure considered appropriate for the surveillance of disease, the regulation would allow measures considered appropriate for the:

“surveillance, prevention, containment or mitigation” of disease.

It would also expand some of the language to cover “conditions” in addition to diseases and infections and add “toxins” alongside infectious agents.

Those may look like a few additional words buried inside hundreds of pages of regulatory language.

They are not insignificant.

The Department itself explains that the change could allow it to use measures other than isolation and quarantine when attempting to prevent or contain disease.

Its examples include restricting access to a location where a disease threat exists, using disinfectants or cleaning measures, and social distancing.

And there is another reason this particular change matters.

In 2021, the Pennsylvania Supreme Court struck down the Department of Health’s statewide school masking order in Corman v. Acting Secretary of Pennsylvania Department of Health.

The court concluded that the Department’s broad statutory powers had been limited by the language of its own regulation.

According to DOH’s explanation accompanying the new proposal, the current wording of §27.60 allows the catch-all disease-control authority for purposes of surveillance, which was insufficient to support the statewide masking order.

The court also pointed out that the Department could amend its regulation.

And DOH says directly in its current proposal that the Corman decision “influenced” the change it is now seeking.

The Department proposes adding “prevention, containment or mitigation” specifically as additional justifications for using the disease-control measures available under state law.

That does not mean the proposed regulation automatically creates a future statewide mask mandate.

It does mean the Department is proposing to change the very regulatory language that the Pennsylvania Supreme Court found limited its authority to impose one in 2021.

That distinction is important.

The Department says Pennsylvania’s communicable-disease regulations were first adopted in 1959 and have not undergone a comprehensive update in decades.

The last significant revision occurred in 2001, with more limited changes following in 2002 and 2020.

DOH says a comprehensive update is needed to reflect changing medical standards, current recommendations from organizations including the CDC and American Academy of Pediatrics, and lessons learned about how public-health officials need to respond to disease threats.

Regarding §27.60 specifically, the Department argues that isolation and quarantine are not always the most appropriate tools.

A contaminated location, isolated outbreak or other threat might require authorities to restrict access to an area instead. Other circumstances might call for cleaning, disinfecting or social distancing rather than isolating individual people.

The Department says the broader wording would allow officials to act “appropriately and quickly” to prevent disease from spreading.

That is the state’s case for the change.

This proposal did not begin because of this month’s controversy over Pennsylvania’s measles deaths. The Department submitted the proposed regulation to the Independent Regulatory Review Commission in June, before the current dispute erupted. IRRC received it June 4.

But measles provides residents with a real-world example of why these rules matter.

Right now, DOH is identifying cases, investigating exposures, conducting contact tracing, providing vaccination clinics, working with schools and directing isolation when necessary. Its own measles guidance describes many of those activities as part of the state response.

At the same time, questions are being raised publicly about how the Department makes certain determinations and communicates those determinations.

Montgomery County Commissioner Tom DiBello, for example, said this week that he met with Pennsylvania Secretary of Health Dr. Debra Bogen regarding the outbreak and later publicly questioned the Department’s use of the term “measles-associated death,” among other issues. He has called for additional explanation from the state.

That does not establish that the Department acted improperly.

Nor does controversy surrounding one outbreak determine whether Pennsylvania should adopt these proposed regulations.

But it does illustrate why the details matter.

When government agencies exercise substantial authority during a public-health emergency, residents have a legitimate interest in understanding exactly where that authority comes from, where its limits are, and what standards govern its use.

And when an agency asks to change those rules, the public should understand what is being changed before being asked to weigh in.

Section 27.60 is just one piece of a much larger proposal.

Future parts of this series will examine proposed rules involving disease investigations, access to homes and other locations, contact tracing in schools, access to medical records, immunization reporting and other provisions that could directly affect Pennsylvania residents.

Some of those provisions represent significant changes.

Others are modifications or clarifications of authority the Department already possesses.

We will make that distinction whenever possible.

The goal of this series is not to tell readers whether Pennsylvania’s proposal is good or bad.

It is to make sure that if residents choose to offer an opinion, they know what they are offering an opinion about.

Pennsylvania is accepting public comments on Regulation #10-242, “Communicable and Noncommunicable Diseases,” through Sept. 21.

You can review the complete proposal, follow the regulatory process and view public comments through the Independent Regulatory Review Commission.

View Regulation #10-242 and the full proposal

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Thank you for reading,

Corey