Pandemic Influenza Legal Preparedness

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Pandemic Influenza Legal Preparedness
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CDC
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This course was made possible by cooperative
agreement number U90/CCU324238 from the Centers
for Disease Control and Prevention Its contents
are solely the responsibility of the authors and
do not necessarily represent the official views
of CDC.
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Pandemic Influenza Legal Preparedness

• Patricia M. Sweeney, JD, MPH, RN
• Department of Health Policy and Management
• Graduate School of Public Health
• University of Pittsburgh
• Center for Public Health Preparedness
• psweeney_at_pitt.edu

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Public Health Emergencies

• Floods
• Fires
• Winter storms/summer heat
• Hurricanes, tornados
• Mine subsidence, landslides
• Power outages
• Water emergencies
• Hazardous materials spills
• Transportation accidents
• Industrial accidents/ releases
• Earthquakes / Tsunami
• CBRNE-terrorism
• Pandemic Influenza

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1918 Influenza Pandemic - H1N1

• 25 morbidity
• 2.5 mortality
• 675,000 U.S.
• 50-100 million worldwide
• US life expectancy
• dropped gt 10 years
• More deaths than
• World Wars I and II and Korean war combined
• More deaths in
• one year than the Black Death killed in a century
• 24 weeks than AIDS/HIV deaths in 24 years
• Comparable deaths today
• 1,750,000 U.S.
• 180-360 million worldwide

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Influenza Pandemic Today

• CDC result of moderate U.S, epidemic
• 89,000 to 207,000 deaths
• 314,000 to 734,000 hospitalizations
• 18 to 42 million outpatient visits
• 20 to 47 million people sick at home.
• Up to 35 of the U.S. population affected
• Economic impact between 71.3 and 166.5 billion.
  

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Impact of Pandemic Influenza upon Social Networks

• 25 of workers do not report
• Essential systems crippled
• Transportation
• Food supply
• Communications
• Morgues exceed capacity
• Entire families are ill unable to care for each
  other

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Spread in less than 30 days!
Source PBS, WGBH American Experience Influenza
1918 www.pbs.org/wgbh/amex/influenza/maps
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Pandemic Influenza Legal Preparedness
Learning Objectives

• Identify the source and scope of public health
  legal authority
• 2. Identify public health law issues that arise
  with pandemic influenza
• 3. Describe steps being taken to improve legal
  preparedness for pandemic influenza

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Pandemic Influenza Legal Preparedness
Occurring on the international, federal, state,
and local levels
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Pandemic Influenza Legal Preparedness
Based upon traditional public health legal
authority
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Review Federal Public Health Legal Authority

• United States Constitution
• Article I 8
• Levy taxes
• Regulate commerce between the states

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Examples Federal Public Health Legal
Authority

• The Occupational Safety and Health Act of 1970 29
  USCS 651 et. seq.
• The Food, Drug and Cosmetic Act 21 USCS
  321 et. Seq.
• The Fair Labor Standards Act of 1939 29
  USCS 201 et.seq.
• More..

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ReviewState Public Health Legal Authority
United States Constitution 10th Amendment
Police Power
Federal Government
Sovereign states
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State Public Health Authority

• Statutes
• State Department of Health (Pa DOH) regulations
• State DOH orders
• Local DOH ordinances, resolutions and orders

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State Public Health Legal Authority

• Pennsylvania Disease Prevention and
  Control Act of 1955 35 P.S. 521
  et. seq.
• Administrative Code 16 P.S.12001 et seq.
• Local Health Administration Law Chapter 28
• Regulate persons, businesses and professions
• Control nuisances and dangerous
  conditions
• Create a local health department
  infrastructure
• Control communicable disease

Photodisc/Health and Medicine/Getty Images
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• Pennsylvania Disease Prevention and Control
  Act
• Communicable Disease Control
• Department can use surveillance, segregation,
• quarantine or modified quarantine of contacts of
  a
• person or animal with a communicable disease or
• infection, OR ANY OTHER APPROPRIATE DISEASE
• CONTROL MEASURE NECESSARY TO PROTECT
• THE PUBLIC FROM THE SPREAD OF INFECTIOUS AGENTS.
  20 Pa. Code 27.60(a) (2006)

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• Pennsylvania Disease Prevention and Control
  Act
• Order Medical Examinations
• With reasonable grounds to suspect a person is
  infected with a communicable disease or is a
  carrier, the DOH or County/Municipal department
  of health may require the individual
  to submit to a medical examination or
  any other approved diagnostic procedure.
• 20 Pa. Code 27.81(a) (2006) 35 Pa Cons. Stat.
  521.7 (2005).

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• Pennsylvania Disease Prevention and Control
  Act
• If Order For Medical Treatment Is Refused
• The Pennsylvania DOH or County/Municipal
  departments of health can seek a court order to
  compel the medical treatment or
  isolate the infected person until the disease
  is no longer communicable.
• 35 Pa Cons. Stat. 521.11(a.1) (2005).

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• Pennsylvania Disease Prevention and
  Control Act
• Contact Investigation and Quarantine Authority
• The Pennsylvania DOH or County/Municipal
  department of health is required
  to investigate disease outbreaks and
  is
  authorized to quarantine case contacts.
• 28 Pa. Code 27.65 28 Pa. Code 27.152

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Pennsylvania Public Health Legal
Authority

• Take Private Property
• Governor, Secretary of Health,
• County Municipal Health Departments
• and
  Local Health Authorities
• may temporarily close, Commandeer (Governor)
  and/or Evacuate private property
• Even schools 35 Pa Cons Stat. 7701(d)

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Ohio Public Health Legal Authority

• Title 37 Health Safety Morals
• Ohio Dangerous Communicable Disease Law
  ORC Ann. 3707.04
• Local Health Department Administration and
  Director Communicable Disease Control
• OAC Ann. 3701-36-06
• Establishment of Health Districts
  ORC Ann. 3709.1

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• Ohio Public Health Legal Authority
• Dangerous Communicable Disease Control
• The Department shall have the ultimate authority
  in matters of quarantine and isolation.
• The department may take actions as necessary to
  encourage vaccination against specified diseases.
• ORC Ann. 3701.13 (2006)

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• Ohio Public Health Legal
  Authority
• Quarantine of persons exposed to
  communicable disease
• When a person known to have been exposed to a
  communicable disease is declared quarantinable,
  the board will
  restrict this person to
  his place of residence or
  other suitable place,
  prohibit entrance to
  or exit from such place
  without the boards written permission in order
  to prevent contact with
  others
  not exposed, and
  enforce
  restrictive measures prescribed by the
  department.
• ORC Ann. 3707.08

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• Ohio Public Health Legal Authority
• The Department of Health and local departments of
  health have the authority to control all reported
  cases of communicable disease by ensuring
• Appropriate and adequate treatment
• Isolation and disinfection
• Contact tracing
• OAC Ann. 3701-36-06
• Chapter 3701-36
• Local Health Departments  OAC Ann. 3701-36-06

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Federal Public Health Authority
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Federal Public Health Authority Disease
Control

• The federal government
• has the authority
  to prevent introduction,
  transmission and
• spread of communicable disease.
• 42 USCS 264 et seq 40 CFR 70.2

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Federal Public Health Authority Apprehend and
Examine

• The is authorized to
• apprehend and examine individuals reasonably
  believed
• to be infected with a communicable disease
• in a communicable state,
• who are coming into the country or
• moving from state to state.
• 42 USCS 264(d)(1)

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Federal Public Health
Authority Apprehend and Detain

• Lists diseases subject to
• apprehension, detention and
• conditional release of individuals.
• Executive Order 13295 April 3, 2003.
• Amended April 2005
• Influenza caused by novel or re-emergent
  influenza viruses that are causing, or have the
  potential to cause, a pandemic."

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State and Federal Public Health Powers

• Examine
• Isolate ill
• Quarantine exposed
• Mandate treatment
• Use private property

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Limitations to Public Health Legal Authority

• United States Constitution 4th
  Amendment
• Right to Privacy
• Permits only reasonable search and seizure with
  warrants upon probable cause

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Limitations to Public Health Legal Authority

• United States Constitution
  5th Amendment
• Due Process
• Federal Government cannot deny civil liberties
  without Due Process of law
• Requires both Substantive and Procedural Due
  Process

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Limitations to Public Health Legal Authority

• United States Constitution
  14th Amendment
• Due Process
• Made due process apply to states
• Established Equal Protection -
• Government action must treat similarly situated
  people similarly

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Analysis
Public Health ordered vaccination or treatment
Permitted by Jacobson v. Massachusetts 197 US
11 197 US 11 (1904) Constrained by Due
process Equal protection Consent Washington
v. Glucksberg 521 U.S. 702 (1997)
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Analysis
Public Health ordered isolation,
quarantine and/or detention for treatment
Permitted by state and federal public health
law Best v. St. Vincents Hospital 2003 U.S.
Dist. LEXIS 13188 United States District Court
Southern District NY Constrained by Civil
liberties Due process Equal protection Best
v. St. Vincents Hospital 2003 U.S. Dist. LEXIS
13188 United States District Court Southern
District NY
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Analysis
Restriction upon liberties must
be least restrictive means Shelton v.
Tucker, 364 U.S. 479 (1960) Law
enforcement monitoring Mandatory
quarantine Telephone monitoring
Voluntary quarantine Snow day Mask
and gloves
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Analysis
Public Health ordered property taking
Permitted by Government necessity Penn
Central Transp. Co. v City of New York 438 US
104 (1978) Constrained by Civil
liberties Due process Equal protection Machipo
ng Land Coal Co. v. Commonwealth 799 A2d 751
(pa. 2002)
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Model State Emergency Health Powers Act
(MSEHPA)http//www.publichealthlaw.net/MSEHPA/MSE
HPA2.pdfand http//www.publichealthlaw.net/MSEHPA
/MSEHPA20Surveillance.pdf

• Draft legislation
• Model for states to assess
• legal preparedness for public health emergencies

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Legal Preparedness

• Adequacy of relevant legal authorities
• Accessibility of legal information to public
  health officials
• Competency of public health officials applying
  the relevant laws
• Ability of public health officials to coordinate
  actions
• Across jurisdictions
• Across government agencies and private sector

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Legal Preparedness

• Become familiar with the public health legal
  authorities in your jurisdiction
• Identify and address legal issues in advance
• Draft documents in advance
• Plan due process procedures
• Engage the courts in advance

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Pandemic Influenza Legal Preparedness Activities

• Legal Preparedness Manuals
• Public Health Law Benchbooks
• Public Health Emergency Law Training
• Pandemic Influenza Table Top Exercises
• Courthouse Preparedness for Public Health
  Emergencies

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New Issue

• Business preparedness for pandemic influenza

Adapted from a presentation by Jeffrey P. Clark,
Esq. Reinhart Boerner Van Deuren s.c. 1000 North
Water Street Milwaukee, WI 53202 July 13, 2006
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Business Preparedness for Pandemic Influenza
Legal Issues

• Legal standard of care in crisis
• National Standard
• National Standard of Disaster Management and
  Business Continuity Programs NFPA 1600
• Requires businesses to
• Mitigate
• Prepare for
• Respond to
• Recover from disasters and emergencies
• State negligence standard
• Ordinary care

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Business Preparedness for Pandemic Influenza
Legal Issues

• Threats to business in a crisis
• Potential plaintiffs
• Employees
• Patients or visitors
• Customers
• Shareholders
• Suppliers
• Labor unions

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Major Legal Issues for
Businesses

• OSHA
• Workers Compensation
• Family Medical Leave Act
• ADA
• Health Benefits
• Labor Agreements
• Confidentiality

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Business Preparedness for Pandemic
influenza

• Review all healthcare, disability and workers
  compensation coverage
• Business interruption insurance
• Review absenteeism policies
• Develop Continuation Of Operations Plans

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Pandemic Influenza Legal Preparedness Activities
and Resources

• Community Containment of SARS http//www.cdc.gov/n
  cidod/sars/quarantine.htm
• National Association of City and County Health
  Officials (NACCHO) pandemic influenza site
  http//www.naccho.org/topics/infectious/emerging/a
  vian.cfm
• HHS pandemic influenza planning updates
  http//www.pandemicflu.gov/plan/pdf/panflu20060313
  .pdf , http//www.astho.org/pubs/panflureport2HHS.
  pdf
• Executive Order identifying quarantinable
  communicable diseases http//www.whitehouse.gov/
  news/releases/2005/04/20050401-6.html
• DHHS Office of Civil Rights HIPAA Privacy
  Rule Disclosures for Emergency Preparedness. A
  Decision Tool http//www.hhs.gov/ocr/hipaa/decisi
  ontool/

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Pandemic Influenza Legal Preparedness Activities
and Resources

• Pandemicflu.gov
• Avainflu.gov
• Homeland Security Law Handbook.ABS Consulting.
  Government Institutes, Rockville Maryland. 2003.
• Terrorism and Disaster Management Preparing
  Healthcare Leaders for the New Reality. McGlown,
  K., Health Administration Press. Chicago 2004
  http//www.bepress.com/cgi/viewcontent.cgi?article
  1084contextjhsem
• World Health Organization Pandemic Influenza Plan
  http//www.who.int/csr/resources/publications/infl
  uenza/WHO_CDS_CSR_GIP_2005_5/en/
• CDC Privacy Rule recommendations
  http//www.cdc.gov/privacyrule/Guidance/Content.ht
  m

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Pandemic Influenza Legal Preparedness Activities
and Resources

• CDC Public Health Emergency Law Training Course
  http//www2a.cdc.gov/phlp/phel.asp
• Legal Authorities Index for National Pandemic
  Influenza Response Plan http//www2a.cdc.gov/phlp/
  docs/Appendix20C20from20nspi_implementation.pdf
  
• Indiana Public Health Law Benchbook
  http//www.publichealthlaw.info/INBenchBook.pdf
• Pandemic Influenza Checklists for government,
  business, families, health care centers,
  community organizations http//www.pandemicflu.gov
  /plan/checklists.html
• Pandemic Influenza and Public Health Law Training
  (California) http//cdlhn.com/create_frameset.c
  fm?id28CFID609037CFTOKEN 29640636
• CDC Public Health Law Program
• http//www.phppo.cdc.gov/od/phlp/index.asp
• Fact sheet on Legal Authorities for
  Isolation/Quarantine http//www.cdc.gov/ncidod/sar
  s/factsheetlegal.htm
• University of Pittsburgh Center for Public Health
  Preparedness
• http//www.cphp.pitt.edu/upcphp/