Rocky Mountain Regional Care Model for Bioterrorist Events: Locate Alternate Care Sites During an Emergency: Draft Gubernatorial Orders

Rocky Mountain Regional Care Model for Bioterrorist Events: Locate Alternate Care Sites During an Emergency

Draft Gubernatorial Orders

EXECUTIVE ORDER 1.1

Ordering Hospitals to Transfer or Cease the Admission of Patients to Respond to the Current Disaster Emergency

Notes on Use: Directly authorizes hospitals to cease admissions and transfer patients. Provides that hospital emergency departments may determine on their own, without central direction from CDPHE, whether they have reached capacity to examine and treat patients. Authorizes hospital emergency departments to resume admissions when they have determined that they have the capacity to do so. The pertinent provisions are contained in paragraphs 2 A and B. Declares that this order does not conflict with EMTALA.

Pursuant to the authority vested in the Office of the Governor of the State of Colorado, and pursuant to relevant portions of the Colorado Disaster Emergency Act, § 24-32-2100 et seq., C.R.S. (2001), I, Bill Owens, Governor of the State of Colorado, issue this Executive Order as follows:

1. Background and Need

On ____, 200_, acting pursuant to § 24-32-2104(8), the Governor's Expert Emergency Epidemic Response Committee ("Committee") determined that an emergency epidemic exists in the State of Colorado [or name county]. I issued Executive Order __________, dated ____________, 200_, declaring the existence of a Disaster Emergency, pursuant to C.R.S. § 24-32-2104, in the State of Colorado and activating the State Emergency Operations Plan.

Acting in accordance with C.R.S.§ 24-32-2104(8)(d), and the State Emergency Function (SEF) #8 provisions of the State Emergency Plan, the Committee has found that:

An emergency epidemic exists infecting or exposing a great number of people to disease, agents or toxins.
The number of persons seeking medical treatment at hospitals may far exceed the capacity of any given hospital.
Hospitals who have reached capacity may need to cease admitting patients. Hospitals may also need to transfer such patients to a separate facility without first stabilizing the medical condition of the patient or obtaining the individual's written or informed consent for such transfer.
The transfer of patients from hospitals that have reached capacity to other specified care facilities will combat the current epidemic and promote the public health.

Therefore, pursuant to C.R.S. § 24-32-2104(8)(e)(II), the Committee has advised me that when a hospital has reached capacity for examiNation and treatment of patients, an executive order authorizing those hospitals to transfer or cease admission of patients or perform medical examinations of persons is a reasonable and appropriate measure to reduce or prevent the spread of the disease, agent or toxin and to protect the public health.

Under normal circumstances, the federal Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd, requires hospitals receiving Medicare funds to provide appropriate medical screening to determine whether a patient has an emergency medical condition. EMTALA also prohibits a hospital from transferring a patient with an emergency medical condition unless and until that condition has been stabilized. Thus, in normal circumstances, the purpose of EMTALA is to prevent hospital emergency departments from "dumping" patients who are unable to pay. EMTALA further provides that:

Any individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement of this section may, in a civil action against the participating hospital, obtain those damages available under the law of the state in which the hospital is located....

42 U.S.C. § 1395dd(d)(3)(A).

Finally, EMTALA states:

The provisions of this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.

42 U.S.C. § 1395dd(f).

C.R.S. § 24-32-2104(8)(e)(II) specifically empowers the Governor, upon the advice of the Committee, to order hospitals "to transfer or cease admission of patients or perform medical examinations of persons."

When the Governor declares a disaster emergency in response to an emergency epidemic, C.R.S. § 24-32-2111.5(2) provides in pertinent part that:

The conduct and management of the affairs and property of each hospital, physician ... or emergency medical service provider shall be such that they will reasonably assist and not unreasonably detract from the ability of the state and the public to successfully control emergency epidemics that are declared a disaster emergency. Such persons and entities that in good faith comply completely with board of health rules regarding the emergency epidemic and with executive orders regarding disaster emergency shall be immune from civil or criminal liability for any action taken to comply with the executive order or rule.

2. Mission and Scope

This Executive Order orders the following:

For the duration of the emergency epidemic or until instructed by the Colorado Department of Public Health and Environment (CDPHE), at any time when a hospital has determined that its emergency department has reached capacity to examine and treat patients, the hospital is authorized to cease admissions and transfer patients without determining whether a patient has an emergency medical condition and without first stabilizing the medical condition of the patient or obtaining the individual's written or informed consent to refuse such transfer. At any time when such hospital emergency department has available capacity, the hospital shall resume patient screening and admissions.
I am issuing this Order to give hospitals flexibility to manage their emergency patient caseload in the most efficient and effective manner to meet the present emergency epidemic.
Hospitals complying in good faith with this Executive Order shall be immune from civil or criminal liability under state law pursuant to C.R.S. § 24-32-2111.5 (2).
This Executive Order does not conflict with the purposes of EMTALA. In normal circumstances, EMTALA is intended to prevent the denial of treatment for lack of a person's ability to pay. The present epidemic is an emergency, and I am authorizing hospitals to transfer or cease admitting patients so as to provide an opportunity for a greater number of people to receive care at separate facilities. Therefore, it is my intent that EMTALA does not preempt the provisions of the state's Disaster Emergency Act or this Executive Order.
Further, it is my intent in issuing this Executive Order that hospitals who comply will be immune from liability under state law. In normal circumstances, if a hospital does not observe the requirements of EMTALA, that statute provides a private civil remedy to individuals for "damages available under the law of the state in which the hospital is located...." By invoking the immunity provisions of C.R.S. § 24-32-2111.5 (2), it is my intent that the Disaster Emergency Act provisions be the "law of the state" for purposes of any future private action under EMTALA. Since there is no liability under state law, it is my intent that there are no "damages available" under state law that can be recovered under EMTALA against any hospital that complies with this Executive Order.

3. Duration

This Executive Order shall expire thirty (30) days from the date of its signature, unless rescinded or extended by Executive Order.

Given under my hand and
The Executive Seal of the
State of Colorado, this ___
Day of ______, 200_.

Bill Owens, Governor

EXECUTIVE ORDER 2.0

Concerning the Procurement and Taking of Certain Medicines and Vaccines Required to Respond to the Current Disaster Emergency

Notes on Use: Authorizes the seizure of named drugs from "outlets" (as defined in the pharmacy statutes.) Embargoes the supply of the named drugs in the possession of the outlets. Exempts from seizure those supplies that CDPHE regulation requires certain facilities and organizations to keep for chemoprophylaxis of their employees.

1. Background and Need

Acting in accordance with C.R.S. § 24-32-2104(8)(d), and the State Emergency Function (SEF) #8 provisions of the State Emergency Plan, the Committee has found that:

An emergency epidemic exists infecting or exposing a great number of people to disease, agents or toxins.
Medicines and vaccines administered to infected or exposed people may combat or prevent the spread of the epidemic.
The necessary medicines and vaccines are in the possession of registered prescription drug outlets for retail and wholesale distribution.
Public health officials and authorized disaster emergency personnel should control the supply and administration of these available supplies of the medications and vaccines to combat the emergency epidemic.

Therefore, pursuant to C.R.S. § 24-32-2104(8)(e)(I), the Committee has advised me that the procurement and taking of sufficient supplies of medicines and vaccines is a reasonable and appropriate measure to reduce or prevent the spread of the disease, agent or toxin and to protect the public health.

During the continuance of any state of disaster, the Governor is authorized by C.R.S. § 24-32-2104(7)(d) to "commandeer or utilize any private property if the governor finds this necessary to cope with the disaster emergency." C.R.S. § 24-32-2111 provides for compensation for property so taken. C.R.S. § 24-32-2111.5 also provides for compensation for property commandeered or otherwise used in coping with a declared emergency epidemic.

2. Mission and Scope

This Executive Order orders the following:

For purposes of this Executive Order, the term "outlet" shall have the same meaning as defined in C.R.S. § 12-22-102 (23), as follows: "any prescription drug outlet, hospital, institution, nursing home, rural health clinic, convalescent home, extended care facility, family planning clinic, wholesaler, manufacturer, or mail vendor, other than a pharmacist, that has facilities in this state registered pursuant to [§ 12-22-120] and that engages in the dispensing, delivery, distribution, manufacturing, wholesaling or sale of drugs or devices." "Prescription drug outlet" shall mean "any outlet registered pursuant to [§ 12-22-120] where prescriptions are filled or compounded, and are sold, dispensed, offered, or displayed for sale," as provided in C.R.S. § 12-22-102(30.2).
Except as provided in paragraph E of this Order, people acting under the direction of the Executive Director or Chief Medical Officer of the Colorado Department of Public Health and Environment (CDPHE) or the director of a local health department, law enforcement officers, National Guard troops or any other person authorized by the State Emergency Plan (hereinafter referred to as "authorized disaster emergency personnel") are authorized to seize the following medicines or vaccines from any outlet:
1) [name drug]
2) [name drug]
Effective immediately, outlets are ordered to embargo all supplies of [name drug] and to cease the sale or other distribution of [name drug] until further notice.
Upon the request of any authorized disaster emergency personnel, outlets are ordered to turn over their entire supply of [name drug] or so much of it as may be requested.
CDPHE regulations require local public health agencies, hospitals, managed care organizations, regional emergency medical and trauma services advisory councils and the CDPHE itself to store supplies of antibiotics to be used as chemoprophylaxis for all employees of these organizations in emergency epidemic situations. All such supplies are exempt from this Order and not subject to seizure.
Authorized disaster emergency personnel shall keep records of the quantities of [name drug] seized from each outlet.
Upon cessation of the emergency epidemic or at a sooner time as determined by the governor, outlets shall be compensated for the seized medicines or vaccines, as provided by C.R.S. 24-32-2111 and 2111.5.

3. Duration

This Executive Order shall expire thirty (30) days from the date of its signature, unless rescinded or extended by Executive Order.

Given under my hand and
The Executive Seal of the
State of Colorado, this ___
Day of ______, 200_.

Bill Owens, Governor

COLORADO EXECUTIVE ORDER 4.0

Notes on Use: Authorizes physicians and nurses who hold a license in good standing issued by another state or who have an unrestricted inactive Colorado license to practice under the supervision of a Colorado licensed physician or nurse to meet the current emergency epidemic.

Concerning the Suspension of Physician and Nurse Licensure Statutes to Response to the Current Disaster Emergency

1. Background and Need

Acting in accordance with C.R.S. § 24-32-2104(8)(d), and the State Emergency Function (SEF) #8 provisions of the State Emergency Plan, the Committee has found that:

An emergency epidemic exists infecting or exposing a great number of people to disease, agents or toxins.
There is a shortage of physicians and nurses licensed to practice in Colorado to treat the number of infected or exposed.
Physicians and nurses who are licensed in another state or who have inactive Colorado licenses are available and willing to treat infected or exposed people.
Use of all physicians and nurses, including those without a Colorado license, is necessary to combat the current epidemic.

Therefore, pursuant to C.R.S. § 24-32-2104(8)(e), the Committee has advised me that suspending physician and nurse practice statutes to enable more physicians and nurses to treat exposed and infected persons is a reasonable and appropriate measure to reduce or prevent the spread of the disease, agent or toxin and to protect the public health.

In non-emergency circumstances, a person practicing medicine must possess a license to practice in Colorado issued by the Board of Medical Examiners. C.R.S. § 12-36-106(2). However, a Colorado license is not required for the "gratuitous rendering of services in cases of emergency." C.R.S. § 12-36-106(3)(a). In general, a person may not practice as a practical or professional nurse unless licensed in Colorado by the Board of Nursing. C.R.S. § 12-38-123(1)(a). Nursing assistance in the case of an emergency is not prohibited. C.R.S. § 12-38-125(1)(c).

During the continuance of any state of disaster, the Governor is authorized by C.R.S. § 24-32-2104(7)(a) to suspend the provisions of any regulatory statute or the regulations of any state agency if strict compliance with the provisions of the statute or regulation would in any way "prevent, hinder, or delay necessary action in coping with the emergency."

C.R.S. § 24-32-2111.5 (2) requires that the "conduct and management of the affairs and property of each physician [and] health care provider... shall be such that they will reasonably assist and not unreasonably detract from the ability of the state and the public to successfully control emergency epidemics that are declared a disaster emergency."

2. Mission and Scope

This Executive Order orders the following:

The provisions of the Medical Practice Act and the Nurse Practice Act that require Colorado licensure to practice medicine or nursing are hereby suspended for those physicians and nurses in compliance with paragraph B below.
Physicians and nurses who can demonstrate that they hold an unrestricted license in good standing issued by another state, or whose license in Colorado is inactive and unrestricted, are authorized to practice medicine or nursing in Colorado for the purposes of combating the current epidemic so long as the unlicensed physician or nurse:
1. Practices under the supervision of an identified Colorado licensed physician or nurse.
2. Provides care only relating to the current epidemic as directed by the supervising physician or nurse.
3. Volunteers and provides services without charge to the State of Colorado or any patient or victim.
As provided in C.R.S. § 24-32-2111.5(2), health care providers that comply in good faith with the terms and directives of this executive order shall be immune from civil or criminal liability for any action taken to comply with this executive order. This immunity also applies to the supervisory activities provided by a physician or nurse under paragraph 2 B. of this Order.

3. Duration

This Executive Order shall expire thirty (30) days from the date of its signature, unless rescinded or extended by Executive Order.

Given under my hand and
The Executive Seal of the
State of Colorado, this ___
Day of ______, 200_.

Bill Owens, Governor

COLORADO EXECUTIVE ORDER 5.0

Concerning the Suspension of Certain Licensure Statutes to Enable More Colorado Licensed Physician Assistants and Emergency Medical Technicians to Assist in Responding to the Current Disaster Emergency

Notes on Use: Authorizes Colorado licensed physician assistants and EMTs to practice outside of their normal supervision but under the supervision of another physician to meet the emergency epidemic.

1. Background and Need

Acting in accordance with C.R.S. § 24-32-2104(8)(d), and the State Emergency Function (SEF) #8 provisions of the State Emergency Plan, the Committee has found that:

A. An emergency epidemic exists infecting or exposing a great number of people to disease, agents or toxins.
E. There is a shortage of physicians and nurses licensed to practice in Colorado to treat the number of infected or exposed.
F. Colorado licensed physician assistants and emergency medical technicians are available and willing to treat infected or exposed people.
G. Under current statutes and rules, Colorado licensed physician assistants and emergency medical technicians can only practice in association with or under the supervision of physicians by prior agreement.
H. Use of all Colorado licensed physician assistants and emergency medical technicians without these practice limitations is necessary to combat the current epidemic.

Therefore, pursuant to C.R.S. § 24-32-2104(8)(e), the Committee has advised me that suspending certain regulatory statutes to enable more Colorado licensed physician assistants and emergency medical technicians physicians to treat exposed and infected persons is a reasonable and appropriate measure to reduce or prevent the spread of the disease, agent or toxin and to protect the public health.

The Medical Practice Act authorizes a physician to delegate to a licensed physician assistant the performance of acts that constitute the practice of medicine, but prohibits such physician from supervising more than two physician assistants at any one time. C.R.S. § 12-36-106(5)(a) and (b)(I).

The Emergency Medical and Trauma Services Act authorizes emergency medical technicians to perform duties subject to the medical direction of a physician in accordance with rules adopted by the Colorado Board of Medical Examiners. C.R.S. § 25-3.5-203(1)(a). Under Board Rule 500, a physician advisor must be responsible for a specific emergency service agency and individuals.

To respond to the current emergency epidemic, physician assistants and emergency medical technicians should be available and able to practice under the supervision of any licensed physician to afford treatment to the greatest number of infected individuals.

2. Mission and Scope

This Executive Order orders the following:

The provisions of C.R.S. § 12-36-106(5)(a) and (b)(I), C.R.S. § 25-3.5-203(1)(a) and Section 3.2 of Rule 500 of the Board of Medical examiners are hereby suspended.
Colorado licensed physician assistants and emergency medical technicians physicians are authorized to perform the professional services for which they are licensed under the supervision of any Colorado licensed physician when providing care to individuals affected by the current emergency epidemic.
As provided in C.R.S. § 24-32-2111.5(2), health care providers that comply in good faith with the terms and directives of this executive order shall be immune from civil or criminal liability for any action taken to comply with this executive order. This immunity also applies to the supervisory activities provided by a physician under paragraph 2 B. of this Order.

3. Duration

This Executive Order shall expire thirty (30) days from the date of its signature, unless rescinded or extended by Executive Order.

Given under my hand and
The Executive Seal of the
State of Colorado, this ___
Day of ______, 200_.

Bill Owens, Governor

EXECUTIVE ORDER 6.0

Concerning the Isolation and Quarantining of Individuals and Property in Response to the Current Disaster Emergency Epidemic

1. Background and Need

On ____, 200_, acting pursuant to § 24-32-2104(8), the Governor's Expert Emergency Epidemic Response Committee ("Committee") determined that an emergency epidemic of ______________ exists in the State of Colorado [or name county]. I issued Executive Order __________, dated ____________, 200_, declaring the existence of a Disaster Emergency, pursuant to C.R.S. § 24-32-2104, in the State of Colorado and activating the State Emergency Operations Plan.

Acting in accordance with C.R.S. 24-32-2104(8)(d), and the State Emergency Function (SEF) #8 provisions of the State Emergency Plan, the Committee has found that:

An emergency epidemic of ______________ exists infecting or exposing people to this disease.
[Name of disease] poses a serious threat to the public health and may cause death.
[Name of disease] is highly contagious.
To prevent the further spread of [name of disease] and protect the public health, it is necessary to isolate all individuals infected with the disease or to quarantine all individuals exposed to the disease.

Therefore, pursuant to C.R.S. § 24-32-2104(8)(e), the Committee has advised me that isolating and quarantining individuals are reasonable and appropriate measures to reduce or prevent the spread of the disease and to protect the public health.

Powers of Colorado Department of Public Health and Environment

C.R.S. § 25-1-107(1)(b) empowers the Colorado Department of Public Health and Environment (CDPHE) to "establish, maintain, and enforce isolation and quarantine, and, in pursuance thereof and for this purpose only, to exercise such physical control over property and the persons of the people within this state as the department may find necessary for the protection of the public health."

C.R.S. § 25-1-114(1)(a) states that it is unlawful for any person to "willfully violate, disobey, or disregard the provisions of the public health laws or the terms of any lawful notice, order, standard, rule, or regulation issued pursuant thereto...." C.R.S. § 25-1-114(4) provides that violation of such an order is a misdemeanor punishable by a fine of not more than one thousand dollars, or by imprisonment in the county jail for not more than one year, of both.

Powers of Local Boards of Health

Local boards of health have existing statutory powers to combat infectious disease epidemics. Local boards may isolate infected persons. C.R.S. §§ 25-1-637 to 640. Local boards can also establish quarantines areas. C.R.S. § § 25-1-631 to 634. Local boards are also empowered to take measures to prevent the spread of infectious disease. C.R.S. § 25-1-645.

2. Mission and Scope

This Executive Order orders the following:

Definitions. As used in this Executive Order:
1. "Communicable period" means the time during which an infectious agent may be transferred directly or indirectly from an infected person to another person.
2. "Incubation period" means the time interval between initial contact with an infectious agent and the first appearance of symptoms associated with the infection.
3. "Infectious agent" means an organism that is capable of producing infection or infectious disease.
4. "Isolation" shall mean the separation, for the period of communicability, of infected persons from others in such places and under such conditions as to prevent or limit the direct or indirect transmission of the infectious agent from those infected to those who are susceptible to infection or who may spread the agent to others.
5. A person has "notice" of a fact when:
  1. He or she has actual knowledge of it.
  2. He or she has received a notice or notification of it.
6. "Quarantine" shall mean restriction of the activities of well persons who have been exposed to a case of communicable disease during its period of communicability to prevent disease transmission during the incubation period if infection should occur.
People Subject to Isolation. The Executive Director or Chief Medical Officer of the CDPHE or a local board of health shall immediately isolate all persons known to be infected with _______________ for the period of communicability. All people subject to such isolation shall comply with the directions of the CDPHE or local board of health.
People Subject to Quarantine. The Executive Director or Chief Medical Officer of the CDPHE or a local board of health shall order the quarantine of any person who has been exposed to an infectious agent or was present at [name location] on [date] at [time]. Such people shall be subject to the terms of quarantine when they have received notice of the order.
Restriction of Quarantined People. Any such quarantined person shall:
1. Be confined to his or her home, and may not leave those premises for any purpose except as directed by the Executive Director or Chief Medical Officer of the CDPHE or a local board of health.
2. Be confined to any other location designated by the Executive Director or Chief Medical Officer of the CDPHE or a local board of health.
3. Not put himself or herself in contact with any person not subject to quarantine other than a physician or other health care provider.
Restriction of People Not Subject to Quarantine. No person, other than a person authorized by the Executive Director or Chief Medical Officer of the CDPHE or a local board of health, shall enter a quarantined premises or have physical contact with any quarantined person.
Exceptions to Quarantine Restrictions. No person subject to the quarantine order may leave the premises to which he is confined unless permitted by the Executive Director or Chief Medical Officer of the CDPHE or a local board of health.
Enforcement of Quarantine. Pursuant to state and local emergency operations plans, local law enforcement officials shall enforce the provisions of this quarantine order. [I have also called out the National Guard to respond to the current Disaster Emergency. While acting under call of the governor, an officer or member of the Colorado National Guard acts as a Peace Officer, Level III under C.R.S. §18-1-901(3)(l)(III). I am directing the National Guard to assist local law enforcement in enforcing this quarantine order.]
Violation of this Quarantine. Any person who violates this quarantine order may be subject to prosecution by the District Attorney for prosecution under C.R.S. § 25-1-114(4) or may be subject to civil fines for violating an order of a local board of health as provided in C.R.S. § 25-1-633 or 646.
Care of Quarantined People. Observance of this quarantine is vital to protect the public health. At the same time, compliance with the quarantine may pose a hardship to some people. I direct the Office of Emergency Management and local emergency management agencies to coordinate private or public efforts to take reasonable measures to provide adequate food, clothing, necessities or medication and medical care to quarantined people and people living in the household of any quarantined person who is affected by the quarantine.

3. Duration

This Executive Order shall expire _____ days from the date of its signature, unless rescinded or extended by Executive Order.

Given under my hand and
The Executive Seal of the
State of Colorado, this ___
Day of ______, 200_.

Bill Owens, Governor

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