By James G. Hodge, Jr., J.D., LL.M.a
a Associate Professor, Johns Hopkins Bloomberg School of Public Health; Executive Director, Center for Law and the Public's Health, Georgetown and Johns Hopkins Universities
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This chapter examines an array of legal issues involved in planning for mass casualty event (MCE) responses. The chapter discusses relevant laws and their potential impact on the ability of community planners to allocate resources when supplies are limited. Community planners are encouraged to partner with members of the State and local legal community to identify specific legal issues and solutions before and during an MCE. |
Laws at all levels of government are a critical part of emergency responses and allocation decisions involving scarce resources in mass casualty events (MCEs). For the purposes of this chapter, scarce resources broadly include physical items (e.g., medical supplies, drugs, beds, equipment), services (e.g., medical treatments, nursing care, palliative care), and health care personnel (e.g., physicians, nurses, lab technicians, other essential workers in health care settings). Constitutional provisions, statutes, administrative regulations, cases, compacts, mutual aid agreements, and public health or emergency management policies or plans are each implicated in an assessment of the legal environment for MCE responses.
This chapter discusses an array of legal issues concerning allocations of scarce resources organized through a series of major legal themes in emergency responses, including:
Within each of these themes are discussions of relevant laws and their potential impact (both positive and negative) on the ability of community health planners to allocate resources when supplies are limited. In some instances, distinctions between public- and private-sector entities are raised when relevant to the application of the law.
The purpose of this chapter is to frame common legal issues that State and local community health planners may need to address. This chapter is not meant to provide specific legal advice in any jurisdiction. Legal advice on issues identified in this chapter is necessarily fact-specific and may vary depending on State or local law and the specific circumstances involved. Community planners are encouraged to work closely with their State Office of the Attorney General or local counsel to identify specific legal issues and solutions before and during MCEs.
Since September 11, 2001, and the ensuing anthrax attacks, Federal, State, Tribal, and local governments have focused on crafting an appropriate legal environment for public health emergencies.2 They assessed their emergency authorities and amended or enhanced their legal infrastructure where needed, a process that is still ongoing. The current legal framework for emergency responses presents differing standards for the declaration of an emergency and vests various powers at all levels of government. States or local governments may feature a comprehensive set of government powers arising from the declaration of a public health emergency.3 Other States predicate their emergency powers on the declaration of a general emergency or disaster, which may include any event that threatens the public's health or safety.4 Some States allow for the dual declaration of public health emergencies and general emergencies, which can lead to legislative confusion and duplication of efforts that may detract from the implementation of efficient emergency management functions.5 The Federal Government also has emergency declaration powers that operate independently or in conjunction with State and local emergency response efforts.6 These emergency powers are summarized below.
For community health planners, the importance of an emergency declaration at any level of government lies in its effect on their operations. Emergency declarations do more than announce a state of emergency in an affected local, State, Tribal, or national population; they essentially change the legal environment to facilitate emergency responses for the duration of the declaration.7 By reshaping the legal landscape to effectuate emergency responses, multiple legal options arise that would not be possible in nonemergency events.
Public Health Emergencies. Many State legislatures and health departments have amended State statutes and regulations to reflect modern principles of public health emergency preparedness based, in part, on the Model State Emergency Health Powers Act (MSEHPA) drafted in fall of 2001 by the Center for Law and the Public's Health at Georgetown University and The Johns Hopkins University.8 MSEHPA presents State and local governments with a template for reviewing existing emergency declaration laws and developing legislative or other regulatory reforms to facilitate an effective public health response.9 While this chapter refers to MSEHPA to explain common provisions that are featured in many States' emergency preparedness laws, MSEHPA is not law unless a State has enacted it. According to the Center, more than 35 States have enacted laws based in whole or part on MSEHPA since the Act's completion.10 These laws vary across jurisdictions and may be interpreted differently depending on a host of factors.
The Act sets a high threshold for what may constitute a public health emergency, defined as: "an occurrence or imminent threat of an illness or health condition that (1) is believed to be caused by any of the following: (i) bioterrorism (ii) the appearance of a novel or previously controlled or eradicated infectious agent or biological toxin (iii) [a natural disaster], and (iv) [a chemical attack or accidental release] or (v) [a nuclear attack or accident]; and (2) poses a high probability of any of the following harms: (i) a large number of deaths in the affected population, (ii) a large number of serious or long-term disabilities in the affected population, or (iii) widespread exposure to an infectious or toxic agent that poses a significant risk for substantial future harm to a large number of people in the affected population."11
Once a state of public health emergency has been declared, MSEHPA grants State and local public health agencies (and their public and private sector partners) a number of extraordinary public health powers.12 This includes the ability to waive State professional licensing and certification requirements for volunteer health professionals participating in emergency response efforts,13 liability protections for medical personnel,14and expedited procedures to acquire essential supplies and personnel.15 These powers are discussed further throughout the themes below.
General Emergencies and Disasters. Although many jurisdictions do not define public health emergency or a like term, every State and many local governments have developed a legal structure for declaring a general emergency or disaster and related emergency management functions. A state of emergency or disaster typically may be declared in response to any natural or manmade event or occurrence that threatens the public's health or safety. The processes in many States or local governments for declaring a general emergency or state of disaster resemble those for declaring a public health emergency through MSEHPA. Thus, a figure with significant political accountability (e.g., Governor, State health commissioner, local mayor, county commissioner) is vested with responsibility for declaring an emergency under specific or more generalized standards, depending on the laws in the jurisdiction.16
Dual Declarations. Community health planners must be prepared to respond to emergencies under a new legal framework consistent with a state of emergency, disaster, or public health emergency. Assessing responses can be complicated, however, particularly when jurisdictions issue conflicting declarations of emergency. For example, as occurred in Louisiana in responses to Hurricane Katrina in 2005, a State governor may declare a general state of emergency initially (because the standard for such a declaration is often broader) and declare a public health emergency later as specific facts unfold. Two major problems arise from dual declarations:
In some States, public health authorities are responsible for managing a public health emergency while public safety or emergency management authorities handle general emergencies.18 Although advance emergency planning at State and local levels may limit potential conflicts, murky issues of governmental responsibility and authority can cloud key decisions in allocating scarce resources.
Federal Declarations. The Federal Government also has the power to declare an emergency or disaster. The President may declare a national emergency pursuant to the National Emergencies Act of 1976.19 The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act)20 also grants presidential declarations of an emergency or major disaster and vests the President with various powers to coordinate and implement disaster response assistance measures. The President may authorize emergency assistance "to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States" at the request of a State governor or when the emergency is primarily a Federal responsibility.21 Under the Stafford Act, depending on whether the event is an emergency or a major disaster, the Federal Government has differing powers to assist in response efforts.22 For example, Federal disaster assistance is only available on the request of the State Governor for major disasters, including natural catastrophes, fires, floods, or explosions, "of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments...."23
In addition, pursuant to the Public Health Service Act,24 the Department of Health and Human Services (HHS) Secretary is authorized to declare a public health emergency.25 This declaration authorizes a host of Federal actions. At any time, the Health and Human Services (HHS) Secretary may deploy members of the Public Health Service or intermittent disaster response personnel to assist in meeting surge capacity in health care facilities nationwide.
An important theme in emergency responses for community health planners making critical decisions concerning allocations of scarce resources is the balance between individual and communal interests. Emergency laws can support these decisions, particularly when communal interests are at stake in public health emergencies. Other legal requirements, however, also may impact these decisions. Constitutional principles may limit how the government may allocate resources. For example, allocation decisions that:
Legal causes of action to stop the enforcement of these decisions may be brought even during emergencies.
Disability laws, such as the Americans with Disabilities Act (ADA)26 or State or local equivalents, may require certain protections for persons with disabilities during emergencies. Some States and some localities bar discrimination under much broader "human rights" laws.27 State and local governments legally may require the prioritization of their own workforce over the general population concerning specific medical interventions to ensure the stability of government and continued efforts to protect the public's health. Similar decisions by health care entities to protect their essential personnel when resources are scarce also may be legally supportable.28
Federal or State agencies may prescribe specific laws or guidance concerning the prioritization of vulnerable populations in making decisions involving distribution of scarce resources. For example, during the 2004-2005 influenza season, flu vaccines ran short because of manufacturing problems with a major supplier. The Centers for Disease Control and Prevention (CDC) issued guidance concerning distributions of available vaccine that prioritize infants, the elderly, and pregnant women. Many States legally incorporated CDC guidance into their own State allocation decisions.29 These types of legal actions prior to and during emergencies demonstrate how laws can facilitate allocation decisions (literally by dictating a specific outcome), but also how they may interfere with local decisions of community health planners (who may not agree always with lawmakers and policymakers concerning specific allocations).
One facet of declared states of emergency that is designed to facilitate response efforts is the ability of government to suspend specific legal requirements temporarily that would apply in nonemergencies otherwise. During a state of public health emergency pursuant to MSEHPA, for example, the governor may suspend the provisions of any regulatory statute prescribing procedures for conducting State business, or the orders, rules and regulations of any State agency, to the extent that strict compliance with the same would prevent, hinder, or delay necessary action (including emergency purchases) by the public health authority to respond to the public health emergency, or increase the health threat to the population.30
Similar statements allowing suspensions of existing provisions of law (except constitutional norms) exist in most Federal, State, and local emergency laws. Their use during an emergency can affect allocation decisions profoundly.
Emergencies tend to tax the existing capacities of governments and health care entities quickly in any locality, necessitating additional resources. Emergency responses require moving people and property between jurisdictions efficiently. Difficult legal questions arise. When can personnel or property be transferred between jurisdictions at the same or different levels of government during an emergency? Can States seize existing resources from counties or other municipalities? When must community health planners relinquish control or decisionmaking over specific resources? Does liability arise from the sharing of resources across boundaries?
These and other interjurisdictional legal concerns require coordination of activities and resources across local, State, and Federal boundaries before, during, and after emergencies. The Center for Law and the Public's Health has developed a Public Health Emergency Legal Preparedness Checklist on Interjurisdictional Legal Coordination to help community health planners and others work through these issues.31 As explained in the Checklist, interjurisdictional coordination may arise horizontally between similar jurisdictions (e.g., between adjacent counties) or vertically between different jurisdictions (e.g., between local and State, local and Federal, and State and Federal governments). Though complicated by contrasting Federal, State, and local laws, several legal tools may facilitate interjurisdictional exchanges of resources.
As noted in the sections above, emergency declarations may authorize interjurisdictional coordination efforts or suspend laws that may interfere with such coordination during the emergency. Formal mutual aid agreements between States (e.g., the Emergency Management Assistance Compact [EMAC32]), local governments (e.g., Illinois Public Health Mutual Aid System Agreement33, and foreign countries (e.g., International Emergency Management Assistance Compact between several New England States and Canadian provinces34 facilitate many exchanges of resources in real time during emergencies under specific conditions and protocols. Compacts like the Mid-America Alliance Mutual Assistance for Public Health Preparedness (among 10 Midwestern States)35 authorize resource exchanges in exigent circumstances that do not require an emergency declaration.
Acquiring or exchanging property during emergencies to replenish dwindling supplies is one thing; the legality of acquiring additional medical personnel or others to meet patient surge capacity is another. During MCEs involving Federal or State declarations of emergency, the potential for significant losses of existing health care personnel coupled with hundreds or thousands of new patients presents an immediate need for additional trained health care providers.36 These may come from other in-State facilities or through out-of-State places. During Hurricane Katrina, thousands of volunteer health personnel (VHPs) streamed to the affected Gulf Coast States to provide assistance.37 Many of these volunteers came through coordinated governmental programs (e.g., State-based Emergency Systems for the Advance Registration of VHPs, local Medical Reserve Corps units) or private-sector efforts (e.g., American Red Cross, Salvation Army, hospital systems).38 In addition, HHS hired certain VHPs as temporary, uncompensated employees.39
In nonemergencies, licensed non-Federal practitioners in one State cannot practice medicine or public health services in another State, absent applied waivers of State licensure requirements or other exceptional circumstances (e.g., Good Samaritan provisions). Federal health care providers need only to be licensed in one State to perform their official duties in any State.
During emergencies, States have created several legal approaches to circumvent normal licensing requirements for VHPs. Some States provide waivers of professional licensure requirements during declared emergencies. Licensure reciprocity also may be promulgated via executive order or invoked pursuant to interstate agreements, such as EMAC.40 These provisions allow volunteer health providers to practice for the duration of the emergency as if they were licensed in the jurisdiction, subject to restrictions on the scope of practice set forth by the State or political subdivision.
Though the paths to recognizing a VHP's out-of-State license are many, each is tied to specific legal interventions. For example, VHPs who are deployed via EMAC automatically qualify for licensure reciprocity. Others may have to rely on whether the host jurisdiction has invoked licensure reciprocity through emergency declarations or other legal routes. Medical practitioners with needed skills still may be rejected because their license to practice is conditional or nonactive (e.g., the practitioner may be retired from medical practice) or they fail to meet emergency credentialing or privileging standards. Licensure reciprocity provisions must be clearly communicated during emergencies to ensure that VHPs are available to participate in emergency response efforts.
Beyond VHPs, patient family members, neighbors, or others within the community may be needed to provide palliative or other medical care or offer essential support for medical personnel. While a State-based declaration of an emergency typically does not authorize nonmedically trained individuals to engage in systematic medical care of patients, their supervised participation in the care of relatives or companions is essential. Just as in nonemergencies, such activities are legally warranted in many cases. Persons lacking medical training also may provide key support services in the delivery of medical care to patients without legal impediments, provided that they do not actually treat patients. Screening patients through the administration of basic services by nonmedical personnel is legally permissible during emergencies; diagnosing patients, deciding their treatment, or prescribing their medications is not, pursuant to a host of Federal, State, and local laws.
One of the premier concerns of health care workers and VHPs, as well as the health care entities that host them, is their risk for civil liability for negligent or intentional actions that may result in harm to patients during emergencies. The uncertainties of emergency environments, the need to work within standards appropriate to the situation,41 and the unpredictability of harms to some patients (especially during emergencies) raise liability fears. Still, there may be some liability protections for these actors depending on the circumstances. Immunity from civil liability for harms to patients may be available through multiple legal sources, including:
For example, State officers or employees providing aid via EMAC during emergencies are protected from civil liability as agents of the requesting State so long as they act in good faith and without "willful misconduct, gross negligence, or recklessness."46
Despite significant protections for individual actors, fewer liability protections exist for the entities (e.g., private hospitals, medical clinics) that respond to emergencies. The Federal Volunteer Protection Act of 1997, for example, provides immunity for volunteers of nonprofit entities but not for the entities themselves.59 Other State laws mimic this approach. As a result, hospitals and other health care entities are open to more potential liability for their acts (or failures to act) during an emergency.47 An emerging State model law (e.g., the Uniform Emergency Volunteer Healthcare Services Act) provides some liability protections for entities coordinating or hosting VHPs.48
A different type of harm for which liability may arise involves the workers or volunteers themselves. Under what circumstances may government or the private sector compensate these individuals for the injuries (e.g., physical or mental) incurred in responding to the emergency? In the employment context, workers are often protected from these harms through worker's compensation programs that cover individuals injured or killed at work.49 The cause or fault of the employee is not a factor; worker's compensation pays regardless. These benefits typically cover public- and private-sector employees during emergencies, but what about VHPs? Volunteers are not typically viewed as employees and thus do not benefit automatically from worker's compensation coverage.
There are legal solutions to this dilemma. For example, volunteers deployed as Federal or State agents may be covered by governmental workers compensation plans. VHPs deployed through EMAC are automatically eligible for State workers compensation benefits. Some States, like Michigan, have legally extended their workers compensation programs to registered VHPs providing services in the State during an emergency.50 Some employers as well have worked out contractual agreements with their workers' compensation carriers to continue to cover employees who volunteer to respond to an emergency outside the employment setting.
At the core of resource allocation issues involving nonpersonnel is the need to manage and control public and private property. This includes real property (e.g., land, buildings, establishments) and personal property (e.g., medical supplies, drugs, beds).
As part of their day-to-day legal power to abate public health nuisances, public health authorities are able to condemn, remove, or destroy any property (public or private) that may harm the public's health.51 For example, if a private office building is contaminated with anthrax spores (as happened in Florida in fall 2001), State or local governments may require the facility to be shut down until it is safe for human occupancy. Of course, the power to abate public nuisances exists during emergencies as well.
Uses of real or personal property by State or local government or the private sector during emergencies depend on the type of emergency declared. Some common legal premises, however, permeate most declared states of emergency. Emergency management officials or public health authorities may designate public property instantly (e.g., State or local government buildings) for emergency uses and require an inventory and reallocation of available supplies. State or local governmental authorities are also empowered to seize private property for public use that is reasonable and necessary to respond to the emergency. This includes the ability to use and take temporary control of certain private-sector businesses and activities that are of critical importance to emergency responses.
During a public health emergency pursuant to MSEHPA, for example, a State department of health may designate a private facility (e.g., hotel, convention hall, private meeting place) to serve as a clinic for vaccination or other public health services. Similarly, health care facilities may be governmentally controlled to treat patients, although governments typically seek to partner with (and not commandeer) such facilities. Privately held medical supplies may be acquired quickly via the government to meet its own needs or the needs of the population.52
Whenever governmental authorities take private property to use for public health purposes, constitutional law requires that the property owner be provided just compensation.53 That is, the government must compensate the owner of any facilities or materials temporarily or permanently procured for public use during an emergency. Most emergency laws require payment not instantaneously but rather at some point after the state of emergency has rescinded. When public health authorities must condemn and destroy any private property that poses a danger to the public, however, no compensation to the property owners is constitutionally required.
Other permissible property control measures include restricting certain commercial transactions and practices such as price gouging to address problems arising from the scarcity of resources. MSEHPA specifically allows public health officials to regulate the distribution of scarce health care supplies and control the price of critical items during an emergency.54 In addition, public health authorities may seek the assistance of health care providers to perform medical examination and testing services. Maryland emergency laws actually compel health care workers to provide medical services (although this legal approach is not common).55
These legal interventions can be a double-edged sword for community health planners. Laws may help community health planners meet critical resource needs by making available essential supplies or personnel or prohibiting price gouging but also may require planners to share their own resources in the interests of protecting the public's health. Standards for making critical choices in allocating scarce resources will help community health planners and their Federal, State, or other partners make guided decisions that work to the benefit of the community.
Laws can help (and hinder) community health planners' decisions concerning the allocation of scarce resources. A key question is how to use the law as a positive tool during an emergency. One of the fundamental observations discussed in this chapter is the extent to which the legal landscape changes during emergencies. Normal processes, rules, and regulations may not apply fully. Expedited uses of public health or other governmental powers coincide with community health planners' need to make decisions in real time. Assessing the legality of specific choices (even when protections or requirements are neatly spelled out in emergency law) is difficult when the legal environment itself is changing.56 The potential for some planners to act without significant regard for the legal ramifications or, conversely, to fail to act because of their legal apprehension sustains the need for advance consideration of the legal consequences.
Community health planners must align with their local legal community to clarify emergency legal issues in their jurisdictions. Addressing legal issues that underlie the allocation of scarce resources is an essential part of emergency plans. Begin with a series of legal questions that have been uniformly answered in prior emergencies. Does local government have sufficient home rule to declare an emergency? If so, under what authority? What types of emergencies can be declared? What powers flow from the declaration? What nonemergency legal provisions may be suspended? Additional questions may be derived from the checklist, Local Government Public Health Emergency Legal Preparedness and Response, developed by the Center for Law and the Public's Health.57
Checklist for PlannersA useful checklist on local government public health emergency legal preparedness and response is available at http://www.publichealthlaw.net/Resources/BTlaw.htm. |
Tougher questions should be specified and addressed. What emergency provisions directly impact the allocation of scarce resources? Who is legally responsible for making critical decisions at the State or local level? How much authority will a particular entity be given to make critical choices? When can the government challenge that entity's decisions? When is that entity, its employees, or its volunteers legally accountable for these decisions?
Advance planning and issue identification are essential, but they alone are not enough. Just as medical personnel must triage patients according to need during emergencies, legal practitioners in the public and private sectors must be prepared to prioritize relevant legal issues in real time. Legal triage refers to the efforts of legal actors to construct a favorable legal environment during emergencies through a prioritization of issues and solutions that facilitate legitimate public health responses and allocation decisions.58
Community health planners should partner with members of the local legal community who are prepared during emergencies to:
Only through the skilled, knowledgeable, and coordinated efforts of legal practitioners and community health planners via legal triage during emergencies can some allocation decisions be made with legal confidence.