Overview of Discussion

1
Overview of Discussion
Purpose Gain general understanding of Alaska
law as it might apply to a (non-terrorist)
outbreak of pandemic influenza.

• The Alaska Disaster Act
• DHSS Powers in a Declared Public Health Emergency
• Epidemiological Powers of Investigation
• Medical Treatment of Persons Exposed to
  Contagious Disease
• Isolation and Quarantine
• Cooperation with the Federal Government
• Cooperation with Other States and Between
  Localities
• Curfew
• Closure of Public Places and Compensation for
  Closures
• Mass Prophylaxis Readiness
• Miscellaneous Issues

2
The Alaska Disaster Act(AS 26.23.010AS
26.23.220)
How does an event become an official disaster?

• Governor declares a public health disaster
  emergency.
• Outbreak of disease must be occurring, imminent,
  or threatened.
• Commissioner of DHSS must certify outbreak.
• Certification based on specific, reliable
  information.
• Activates all applicable emergency plans.
• May last up to 30 days.
• Empowers governor to order almost anything to
  control emergency.
• (More on limitations of disaster act later)

3
The Alaska Disaster Act Continued
Local Disasters (Municipalities)

• Localities individually responsible for disaster
  planning.
• Head of political subdivision declares emergency.
• May last up to 7 days.
• Activates all applicable emergency response plans
  and authorizes aid.

4
Alaska DHSS Powers in a Declared Public Health
Emergency (AS 18.15.390)

• Requires gubernatorial declaration and
  coordination with the Department of Military and
  Veterans Affairs.
• Closure, evacuation, decontamination of any
  facility.
• Inspection, regulation, rationing, control of all
  major commodities.
• Adopt and enforce measures for regulating
  infectious waste.
• Totally regulate human remains and funerary
  establishments
• Appoint emergency assistant medical examiners
  during disaster.
• Pandemic Influenza Response Plan

5
Alaska DHSS Powers of Epidemiological
Investigation (AS 18.15.375)

• Powers apply whether or not there is a declared
  emergency.
• ID/interview/test individuals exposed to
  condition of public health importance.
• Examine facilities/materials that may threaten
  public health.
• Inspect health care records maintained by
  providers.
• Interview other individuals.

6
Alaska DHSS Powers of Epidemiological
Investigation Continued
Special requirements for examining/testing/screeni
ng individuals

• Informed consent (risks/benefits/purpose) is
  required.
• Health care practitioner performs exam, generally
  individual can choose provider.
• Performed for sole purpose of identifying
  condition of public health importance posing a
  threat to public health that may be alleviated
  through this type of intervention.
• DHSS must inform individual of test results.

7
Alaska DHSS Powers of Epidemiological
Investigation Continued

• What happens if someone wont consent?
• DHSS must obtain order of a state medical
  officer.
• Order is issued upon finding that individual
  has/may have been exposed to a contagious disease
  posing significant risk to public health.
• Order must be personally served on individual
• Within reasonable time before testing is to occur.

8
Alaska DHSS Powers of Epidemiological
Investigation Continued
What happens if a non-consenting individual
objects to state medical officer order?

• DHSS obtains ex parte order from superior court.
• Standard probable cause that individual has/may
  have contagious disease posing significant risk
  to public health.
• Ex parte order cannot exceed 5 days.
• Individual must be notified of right to hearing.
• Individual is entitled to a hearing within 3
  business days.
• Public is excluded from hearing unless individual
  elects otherwise.
• Individual may be ordered into protective custody
  pending hearing.
• Individual has right to counsel.

9
Treating and Controlling Movement of Persons
Exposed to Contagious Disease in Alaska (AS
18.15.380)

• Health care practitioners must instruct
  individuals about measures for preventing
  transmission and need for treatment.
• DHSS may administer medical treatment, including
  directly-observed therapy to consenting
  individuals.
• Individual has right to refuse treatment but must
  pay for any quarantine or isolation order
  necessitated by that refusal.
• DHSS must notify non-consenting individuals of
  consequences of their non-consent.

10
Quarantine and Isolation in Alaska (AS 18.15.385)
Overview Definitions

• Granddaddy of the new public health law.
• Main legal vehicle in Alaska for restricting
  movement of persons.
• Single statute applies to all persons and
  circumstances.
• Due process protections for persons subject to
  isolation/quarantine.
• Imposes various obligations on DHSS.
• Requires DHSS to adopt regulations to implement
  it.
• Violations carry specific criminal penalties.
• Applies to both contagious diseases and hazardous
  materials
• Isolation physically separates or confines
  already infected/reasonably believed to be
  infected individuals.
• Quarantine physically separates or confines
  exposed/possibly exposed individuals.

11
Quarantine and Isolation in Alaska Continued

• Must be least restrictive alternative
  necessary.
• Must be by least restrictive means necessary.
• Isolated and quarantined individuals must be
  separated.
• Regular monitoring of individual health status is
  required.
• Quarantined individuals who become infected must
  then be isolated.
• Quarantine/Isolation must be immediately
  terminated as soon as individual poses no
  substantial risk of transmitting disease.
• Health care providers/others may access these
  individuals.
• Individuals who enter isolated/quarantined area
  with or without DHSS approval, may themselves be
  subject to isolation and quarantine.

12
Quarantine and Isolation in Alaska Continued

• What happens if an individual refuses to be
  quarantined or isolated?

• DHSS seeks an order from superior court by filing
  a petition.
• Petition must allege
• Identity of individuals to be isolated/quarantined
  .
• Premises subject to isolation/quarantine.
• Date and time isolation/quarantine to begin.
• Suspected contagious disease.
• That individual poses a significant risk to
  public health.
• What types of procedures/treatments are required.
• That the department is or will be complying with
  requisite standards.
• Petition must be accompanied by affidavit signed
  by a state medical officer.
• Petition and affidavit must be personally and
  timely served on respondent, along with notice of
  time and place of hearing.
• Hearing takes place 48 hours after petition is
  filed (more on this later).

13
Quarantine and Isolation in Alaska Continued
What happens in an emergency where there is no
time to get individual consent?

• State medical officer may issue an emergency
  administrative order to temporarily
  isolate/quarantine individual(s).
• Such orders are enforceable by any peace officer
  in the state.
• Standard probable cause to believe delay would
  pose clear and immediate threat and
  isolation/quarantine is least restrictive
  alternative.
• Within 24 hours of issuing administrative order,
  DHSS must notify superior court by filing a
  petition signed by a medical officer alleging
  that the action was necessary to prevent spread
  of contagious disease posing immediate threat to
  public health.

14
Quarantine and Isolation in Alaska Continued
Basic Procedures

• Hearing takes place 48 hours after petition is
  filed.
• DHSS may request up to 5 days continuance.
• Court grants continuance for good cause shown and
  in extraordinary circumstances.
• During continuance, individual remains in
  quarantine/isolation.
• Court may consolidate many claims into one.
• Public is excluded from the hearing unless
  individual chooses to have it open.

15
Quarantine and Isolation in Alaska Continued

• Individual Rights

• View and copy court file.
• Have hearing open to the public.
• Have civil and evidentiary rules apply
  informally.
• Have an interpreter if person does not speak
  English.
• Present evidence on individuals behalf.
• Right to counsel.
• Call experts and other witnesses to testify on
  individuals behalf.
• Participate in hearing.

16
Quarantine and Isolation in Alaska Continued

• What Can the Court Order?

• Commit individual to isolation/quarantine for not
  more than 30 days.
• Standard clear and convincing evidence.
• Other orders as necessary, enforceable by peace
  officers.
• Orders must
• ID isolated/quarantined individual by
  name/circumstances.
• Specify factual findings warranting quarantine or
  isolation.
• Include any conditions necessary to ensure
  statutory compliance.
• Be served in accordance with court rules.

17
Quarantine and Isolation in Alaska Continued
After the Court Order

• Before order expires, court may continue
  isolation/quarantine for additional periods not
  to exceed 30 days.
• Standard clear and convincing evidence.
• Individual/s may ask the court to revisit issue
  of the isolation/quarantine by applying for
  order to show cause.
• Court must rule on application for OTSC within 48
  hours.
• Isolated/quarantined individual/s may request
  hearing for breach of quarantine/isolation
  conditions.
• Such hearings take place within 24 hours under
  extraordinary circumstances, or 5 days under
  regular circumstances.

18
Quarantine and Isolation in Alaska Continued
Department Regulations

• While superior court order is in effect, person
  may seek informal review from Public Health.
• Request may be made no sooner than 15 days after
  court order.
• 48 hours after receiving request, Director of
  Public Health must offer an informal telephonic
  hearing.
• Similar process exists for contesting state
  medical officer orders issued pursuant to the
  states epidemiological powers.

19
Quarantine and Isolation in Alaska Continued
Liability Under the Quarantine Isolation Statute

• State of Alaska is immune from suit arising from
  exercise of public health powers (AS 09.50.250).
• Exceptions
• Negligent medical treatment by state employee
• State employee quarantines an individual with
  gross negligence or in intentional violation of
  statute.
• Also immune from suit arising from exercise of
  public health powers
• District of the state
• Employees/agents/representatives of the state or
  district
• Volunteer/civil defense workers

20
Quarantine and Isolation in Alaska Continued
Criminal Penalties for Violations

• Knowing violation is a class B misdemeanor.
• Intentional violation is a class A misdemeanor.

21
Federal Quarantine Law in Alaska(AS 18.05.030
AS 26.20.010)

• No specific Alaska law authorizing enforcement of
  federal quarantine order.
• DHSS must cooperate with feds regarding matters
  of mutual public health concern.
• All homeland security/civil defense functions
  shall be coordinated to maximum extent possible
  w/feds.

22
Federal Aid to Alaska(AS 18.05.030 AS
26.23.080 AS 26.23.090)

• Receive and expend funds.
• Receive, utilize, maintain equipment and
  facilities.
• Presidential declaration of major disaster
  allows governor to request loans.
• Presidential declaration allows governor to enter
  into grant agreements.

23
Cooperation Between Alaska and Other States(AS
26.23.135 AS 26.20.030)

• Emergency Management Assistance Compact (EMAC).
• Provides for mutual assistance between states to
  manage declared emergencies/disasters.
• Governors declaration of disaster activates
  EMAC.
• EMAC is primarily about resource-sharing
• Governor may enter into reciprocal aid agreements
  with other states.
• No specific Alaska law addresses movement of
  persons between states.

24
Cooperation Between Alaska andthe Federal
Government(AS 18.05.030 AS 26.20.030 AS
26.23.040)

• Division of Homeland Security (Dept. of Military
  and Veterans Affairs) coordinates
  federal/state/local disaster activities.
• DHS coordinates state and federal emergency plans
  with each other.
• Governor may enter into reciprocal aid agreements
  with feds.
• DHSS may collaborate with public and private
  sector partners.
• DHSS must cooperate with the federal government
  on matters of public health, including
  communicable disease control.

25
Cooperation Between State and Localitiesand
Between Localities(AS 26.23.060 AS 26.23.070
AS 26.23.180 AS 18.05.010)

• Again, governor has very broad powers in declared
  emergency.
• May use all available resources of state and each
  political subdivision of the state as reasonably
  necessary to cope.
• Individual localities responsible for disaster
  planning.
• Governor may establish inter-jurisdictional
  disaster planning areas.
• Areas without inter-jurisdictional agreements
  encouraged to render mutual aid under governors
  supervision.
• No statute specifically governs relationships
  between these entities regarding restricting
  movement of persons.
• DHSS may flexibly use its broad range of powers.

26
Curfew

• Municipalities can institute curfews in public
  health emergencies.
• DHSS has general power to undertake essential
  health services and functions.
• Governors orders have force of law during
  declared emergency.
• Governor, mayor, or DHSS would be most likely to
  order curfew, decide its parameters, and decide
  when it would end.

• Potential Gaps in the Law of Curfews
• No specific Alaska public health law provides for
  curfews.
• No specific law re who enforces curfew, most
  likely peace officers.
• No specific penalties in statute for violating
  curfew.

27
Closure of Public Places(AS 26.23.020 et. seq.
AS 19.10.100 AS 18.15.390)
State Powers During Declared Public Health
Emergency

• Governor
• Control occupancy of premises within a disaster
  area.
• Allow free access to land and buildings within
  specified areas.
• Commandeer any private property except news media
  and firearms.
• Powers last up to 30 days may be renewed by
  legislature
• May end declaration by proclamation/legislature
  may end by law.
• Department of transportation
• Close highways.
• DHSS (with Department of Military Veterans
  Affairs)
• Close/compel evacuation of any facility.
• Decontaminate/destroy any material.
• Commandeer funerary establishments.

28
Closure of Public Places
Municipal Powers During Declared Public Health
Emergency

• Some municipal codes allow for closure of
  businesses
• During period of declared civil emergency
• Within the municipality.
• Mayor declares or establishes closure.

29
Closure of Public Places(AS 26.23.200)

• Limitations of Alaska Disaster Act (Emergencies
  only)

• Cant interfere with labor disputes.
• Cant interfere with dissemination of news media.
• Cant affect jurisdiction of law enforcement.
• Cant affect governors authority to proclaim
  martial law.
• Cant confiscate lawfully-possessed firearms.
• Carries serious penalties

30
Closure of Public Places
Potential Gaps in the Law of Closures

• No specific prohibitions on closures during
  declared public health emergency or otherwise.
• No specific process for enforcing closures.
• However, during emergency governor is commander
  in chief of all emergency forces (AS 26.23.020).
• No specific penalties for violating closures.
• Absent a declared emergency, no emergency closure
  powers apply.
• This limits specific powers and authorities
  authorizing closure absent a declared emergency.
• No specific process for initiating/implementing/en
  ding closures.

31
Closure of Public Places(AS 26.23.160)
Compensation for Closures

• Takings Clause of the Alaska Constitution.
• In emergency, compensation made only under
  specified conditions.
• Person claiming compensation must follow a
  specified procedure.
• Personal services may not be compensated.
• Amount of compensation is determined one of two
  ways.
• Agreement
• Pursuant to state condemnation law
• No specific process delineated in statute, but
  due process applies.
• In emergency, due process would probably apply
  after-the-fact.
• No law re compensation for closures absent
  declared emergency

32
Mass Prophylaxis Readiness(AS 26.23.020 AS
18.15.390)

• Governor may allocate/redistribute medicine in
  declared disaster.
• DHSS may allocate/ration medicines as reasonable
  and necessary in declared disaster.
• Duly licensed physicians authorized to issue
  blanket prescriptions, at DHSS direction.
• No specific legal procedures to effect mass
  issuance/distribution.
• Strategic National Stockpile (SNP) also would be
  used.
• Planning Guide for Local Mass Prophylaxis.

33
Miscellaneous Issues

• Need complete federal allocation of anti-virals.
• Need more personal protective equipment.
• Need more medical supplies for surge capacity.
• Lack of local public health authorities
  throughout state.
• Large land mass of Alaska.
• Role of tribal health organizations as primary
  providers.