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 26.23.010—AS 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 … • 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. Local Disasters (Municipalities)

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/screening 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 won’t 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 … • 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. What happens in an emergency where there is no time to get individual consent?

14. Quarantine and Isolation in Alaska Continued … • 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. Basic Procedures

15. Quarantine and Isolation in Alaska Continued … • 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 individual’s behalf. • Right to counsel. • Call experts and other witnesses to testify on individual’s behalf. • Participate in hearing. Individual Rights

16. Quarantine and Isolation in Alaska Continued … • 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. What Can the Court Order?

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 … • 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 state’s epidemiological powers. Department Regulations

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 … • “Knowing” violation is a class B misdemeanor. • “Intentional” violation is a class A misdemeanor. Criminal Penalties for Violations

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. • Governor’s 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 governor’s 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.” • Governor’s 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) • Can’t interfere with labor disputes. • Can’t interfere with dissemination of news media. • Can’t affect jurisdiction of law enforcement. • Can’t affect governor’s authority to proclaim martial law. • Can’t 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/ending 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.