Public Health Grand Rounds
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A Menu of Suggested
Provisions for
Public Health Mutual Aid Agreements
Legal Scope or
Effect
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Descriptive Note
Well-crafted provisions addressing specific legal issues (e.g.,
liability, indemnification, reimbursement) will clearly and expressly
state the intended legal scope or effect of the relevant provision.
Nonetheless, on occasion, parties may, for various reasons, choose
to incorporate a statement of an agreement’s general legal scope
or effect.
For example, states entering into agreements with one another (or
possibly with a Canadian province or Mexican state) will obviously
need to closely consult with legal counsel concerning the impact
of U.S. Constitution, Article I, section 10, clause 3, which states
that “No state shall, without the consent of the Congress, … enter
into any agreement or compact with another state, or with a foreign
power….” In the course of legal analysis, including consideration
of court decisions interpreting the “compact clause”, counsel may
wish to contemplate the advisability of the following sort of provision:
- Nothing in this Agreement is to be construed as an encroachment
on the full and free exercise of U.S. federal authority, as
an interference with the just supremacy of the U.S. or its several
states, as affecting the federal structure of the United States
or as enhancing the political power of the party states at the
expense of each other or other U.S. states.
Additional optional sample provisions
Articulating agreement’s compatibility with relevant laws:
- Nothing in the Agreement shall be interpreted to conflict
with applicable laws within the jurisdiction of any Party. However,
any Party may request from any other Party the suspension of
such laws if their normal application might lead to delay or
difficulty in the rapid execution of necessary public health
emergency measures.
- The Parties will comply with all Federal and State laws
relating to the provision of services under this Agreement and
will maintain in effect all permits, licenses, governmental
approvals and accreditations that may be necessary for that
purpose.
Providing for continuing effect of remaining provisions if part
of an agreement is ruled invalid by a court:
- The provisions of this Agreement are severable. If any portion
of this Agreement is determined by a court to be void, unconstitutional
or otherwise unenforceable, the remainder of this Agreement
will remain in full force and effect.
Stating an intention to “bind” the parties:
- This Agreement shall be binding upon the Parties and inure
to the benefit of any successor entity which may assume the
obligations of any Party. A Party, however, may not assign this
Agreement without prior written consent of the Parties.
Stating an intention to create a “nonbinding” document:
- This Agreement is a voluntary, nonbinding agreement among
the Parties. However, with its signature on this Agreement,
each Party states its intent to cooperate with one another and
coordinate response efforts in the event of a public health
emergency. Each Party also agrees to incorporate the terms of
this Agreement into its emergency management plans.
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