Welcome to the Virginia Social Distancing Legal Consultation Meeting

1. Welcome to theVirginia Social Distancing Legal Consultation Meeting Crowne Plaza Richmond West October 9, 2007

2. Introduction Dr. Lisa Kaplowitz Deputy Commissioner for Emergency Preparedness and Response, VDH

3. Introduction • Legal preparedness for public health threats is critical • Virginia has made important progress, such as: • 2003: Updated legislation to address communicable diseases of public health threat • 2006: Trainings on legal issues and pandemic influenza

4. Social Distancing Law Project (SDLP) • To assist states, CDC and ASTHO have implemented a Social Distancing Law Project (SDLP) • Phase I • Comprehensive legal assessment of disease control measures at state and local level • Completed July 2007 • Phase II: Legal Consultation Meeting (LCM) • Purpose: bring together key stakeholders to further explore legal issues related to public health emergencies related to communicable conditions

5. Workgroup and Plenary Sessions • In-depth expert discussion with inter-agency sharing • Three workgroups: • Red/A, Yellow/B, and Green/C • See name badge for assignment

6. American Red Cross Association of State and Territorial Health Officers (ASTHO) City and County Attorneys Commonwealth Attorneys D.C. Department of Health Local Police Maryland Department of Health and Mental Hygiene Metropolitan Washington Airports Authority (MWAA) Sheriffs Supreme Court of Virginia US Centers for Disease Control and Prevention (CDC) US Department of Health and Human Services (DHHS) Virginia Capitol Police Virginia Department of Agriculture and Consumer Services (VDACS) Virginia Department of Education Virginia Department of Health (VDH) Virginia General Assembly Virginia Hospital and Healthcare Association (VHHA) Virginia National Guard (VNG) Virginia Office of the Attorney General (OAG) Virginia Poverty Law Center (VPLC) Virginia State Police (VSP) Participants

7. Administrative and Safety Issues Dr. Christopher Novak Office of Epidemiology, VDH

8. Legal Consultation Meeting • Materials: • Situation manual • Presentations • Forms • Evaluation • Travel reimbursement (if necessary)

9. Administration • Responses are being recorded to facilitate data gathering • Please use microphones for plenary sessions • For response, please state name and agency • Decisions are not precedent-setting and may not reflect your organization’s final position on a given issue

10. Safety and Comfort • Evacuation • Roster • Doors • Assembly point • Restrooms • Mobile phones, pagers • Please turn to silent mode • Refreshments

11. Purpose, Scope, and Principles Suzi Silverstein Emergency Preparedness and Response, VDH

12. Purpose • Identify and discuss potential enhancements to legal preparedness for public health emergencies resulting from communicable conditions • May lead to changes in policy, procedures, regulation, or law • Outcomes from 2006 OAG meeting led to specific amendments to VA law

13. Focus for Today • Social distancing and other disease control measures, including but not limited to: • Isolation • Quarantine • Self-shielding • Curfew • Cancellation of public events • Closure of public places • Travel restrictions • Mass prophylaxis/vaccination • Also, addressing: • Communication/cooperation • Declaration of State of Emergency

14. Activities • Explore opinions/attitudes on the viability and sufficiency of legal authorities in VA • Identify problems that could arise in executing social distancing measures • Procedural, logistical, ethical, or enforcement issues • Identify additional steps related to legal preparedness that warrant further attention

15. Scope • Can specific action be done (legally) and degree of confidence that it will prevail during a legal challenge? • Who has the authority to order the measure, and how would it be accomplished? • What are the enforcement challenges that must be considered? • Are there legal options or alternatives? • What are the legal ramifications that must be considered? • Constitutional rights issues such as freedom of association, equal protection, and due process

16. Principles • The Situation Manual contains many issues that have been identified through past discussions and exercises • Some are relatively simple – others are extremely complex • Today’s LCM likely cannot cover all of the issues • Address as many issues in as much detail as possible • Identify problems/gaps/challenges

17. Roles • Players: participate in discussion based on expert knowledge and experience • Group Facilitators: moderate discussions and access outside assistance (clarification on issues, details regarding scenarios) • Data Collectors: gather information and record the players’ responses • Observers: may participate as desired

18. Social Distancing: Legal Authority Robin Kurz Virginia Office of the Attorney General

19. Social Distancing • Governor’s Authority • Local Government’s Authority • State Health Commissioner’s Authority

20. Governor’s Authority • Commonwealth of Virginia Emergency Services and Disaster Law of 2000. Va. Code § 44-146.13 et seq. • Governor may declare state of emergency.

21. Governor’s Authority • Issue executive orders and proclaim rules for purposes of emergency. • Direct and compel evacuation of all or part of the populace from any stricken or threatened area. • Prescribe routes, modes of transportation, and destination. • Control ingress and egress at emergency area, including movement of persons and occupancy of premises. Va. Code § 44-146.17

22. Governor’s Authority • Executive orders have force and effect of law. Violation thereof “shall be punishable as a Class 1 misdemeanor” if order so states. Va. Code § 44-146.17

23. Local Government Authority • When Governor declares a state of emergency, each political subdivision within the disaster area may, under the supervision of the Governor: • Control use, sale, production, and distribution of food, fuel, clothing, materials, goods, services, and resource systems that do not impact other political subdivisions. • Enter into contracts and incur obligations without usual formalities. • Protect the health and safety of persons and property. • Provide emergency assistance to victims. Va. Code § 44-146.19

24. Local Government Authority • When locality declares an emergency, it may: • Control use, sale, production, and distribution of food, fuel, clothing, materials, goods, services, and resource systems that do not impact other political subdivisions. • Enter into contracts and incur obligations without usual formalities. • Protect the health and safety of persons and property. • Provide emergency assistance to victims • If Governor has declared state of emergency, may w/ supervision act outside capabilities of local govt. Va. Code § 44-146.21

25. State Health Commissioner’s Authority Orders of Isolation and Quarantine

26. Background: Isolation and Quarantine • Isolation: separation (for period of communicability) of known infected persons to prevent transmission of an infectious agent. • Quarantine: restriction of activities during the incubation period of healthy persons exposed to a communicable disease to prevent transmission.

27. Isolation for Communicable Diseases of Public Health Significance • Petition filed in General District Court. • Designed for one person and for diseases that do not spread rapidly, such as tuberculosis. • Very “due process heavy.” • No detailed procedure for quarantine. Va. Code § 32.1-48.01 to 32.1-48.04

28. Isolation and Quarantine for Communicable Disease of Public Health Threat • Disease of public health threat. • Readily transmitted • Risk of death or significant injury or impairment • E.g. smallpox, ebola, pandemic flu, pneumonic plague • Exceptional circumstances or individual does not voluntarily comply with Health Dept’s recommendations. Va. Code § 32.1-48.05 - 32.1-48.017 12 VAC 5-90-103, 12 VAC 5-90-105

29. Order of Isolation • State Health Commissioner issues Order of Isolation setting forth: • Identity of person(s) or affected area • Site of isolation • Date and time that isolation commences • Communicable disease of public health threat • Bases for isolation • Timely opportunities for subject to notify employer, family, and attorney • Penalty for noncompliance with order • A copy of Va. Code § 32.1-48.013 re: appeals Va. Code § 32.1-48.012

30. Order of Quarantine • State Health Commissioner issues Order of Quarantine setting forth: • Communicable disease of public health threat • Reasonable notice of order to subjects • Means by which quarantine implemented • Geographic parameters of quarantine • Duration of quarantine • Directions for compliance • Timely opportunity to notify employer, family, and attorney • Penalties for noncompliance • Copy of Va. Code § 32.1-48.010 re: appeals Va. Code § 32.1-48.09

31. Delivery of Order(s) • Order delivered to person(s) affected in so far as practicable • If number of persons is too great, Commissioner shall cause order to be communicated to the persons residing or located in the affected area • Order remains in place while petition for ex parte review is pending

32. Ex parte Court Review of Order(s) • Commissioner shall file a petition seeking an ex parte court review and confirmation as soon as practicable after issuing the Order. • Petition filed in circuit court in county or city where person resides or in the circuit court of the affected area. • Petition includes a copy of the order and a summary of the findings upon which the Commissioner relied. • The Commissioner may file some or all of any petition under seal. Va. Code §§ 32.1-48.09, 32.1-48.012

33. Court Findings • The court shall grant the petition to confirm/extend the order upon finding: • Probable cause that isolation/quarantine was the necessary means to contain the disease • Implementation is in the least restrictive environment necessary • The Court shall give due deference to the specialized expertise of the Commissioner. Va. Code §§ 32.1-48.09, 32.1-48.012

34. Appeal of Order • Person subject to order may file a petition for appeal in the circuit court. • Person appealing has burden of proving that does not need to be isolated or quarantined. • Court shall not conduct de novo review, but shall consider existing record and supplemental evidence as the court considers relevant.

35. Appeal of Order • Appeal shall not stay order. • Hearing shall be held within 48 hours. • In extraordinary circumstances, for good cause shown, the Commissioner may request a continuance. • Court may consolidate multiple appeals. • Court shall appoint counsel for those unable to afford attorney. • Interpreters. Va. Code §§ 32.1-48.010, 32.1-48.012

36. Appeal of Order • Court may: • Confirm, • Modify, or • Vacate the order. • Any party may file appeal of court’s decision to the Supreme Court of Virginia.

37. Appeal to Supreme Court of Virginia • Petition for Appeal. • Brief in Opposition due w/in 48 hours or Court may grant petition before Brief in Opposition filed. • Court shall act on petition w/in 72 hours of filing. • Court may permit oral argument. • Court has the authority to alter these time frames. Rule 5:43

38. Health and Safety • The Court shall hold hearings in a way to protect health and safety • Hearing by telephone or video conference • Personal protective equipment Rules 3.24, 5:43, 7A:16

39. Enforcement of Isolation & Quarantine Enforced by law enforcement agencies and Commonwealth Attorneys • Class 1 Misdemeanor • Confinement for up to 12 months • Fine of up to $2,500 • Injunction • Civil Penalties Va. Code §§ 32.1-27, 32.1-48.014

40. Release An individual under an order of isolation or quarantine shall be released immediately if: • The commissioner determines that an individual no longer poses a threat to the public health • The order has expired, or • The order has been vacated by the court

41. Other Forms of Movement Restriction • Federal isolation and quarantine laws • State veterinarian can restrict animals. Va. Code § 3.1-726 to 728 • Curfew for minors. Va. Code § 15.2-926 • Temporary detention of individuals incapable of making informed decisions. Va. Code § 37.2-1103. • Emergency detention of individuals w/mental illness. Va. Code § 37.2-808

42. Tabletop:Background/Situation Dr. Christopher Novak Office of Epidemiology, VDH

43. Scenarios - Background • Influenza virus • Infects human respiratory tract • Different strains – previous infection (or vaccination) provides some immunity • Seasonal outbreaks (usually winter/spring) • Highly contagious (contact, droplet, ?airborne) • Contagious period begins before symptoms appear and lasts about a week

44. Pandemic Influenza • New strain, or strain that has not circulated for a long time • Little or no immunity in humans • May cause high levels of illness, death, social disruption, and economic loss • ‘Spanish’ Flu (1918)

45. The Problem With Pandemics… • Last much longer than most other emergency events • May come in “waves” • Healthcare workers and first responders will be affected • High risk of illness • Care for ill family members • Wide range of resources could be limited due to broad impact • Medication, supplies, ventilators, food, fuel, etc.

46. Group A Scenario • Arrival at Dulles of person who becomes ill next day • Exposes large number of Virginia residents after symptoms develop • Large number of people potentially exposed • Orders of isolation/quarantine issued

47. Group B Scenario • Agriculture student develops symptoms • Exposure of poultry to pandemic strain • Efforts to restrict movement on and off university campus, including establishment of curfew

48. Group C Scenario • Impact of pandemic on healthcare system, including hospitals • Canceling of public gatherings • Widespread shortages • High absenteeism • Public information campaigns

49. Movement Restrictions • Workgroups will meet to review their specific scenario details • Red/Group A – Facilitator: Steve Gravely • Yellow/Group B – Facilitator: Dr. Diane Woolard • Green/Group C – Facilitator: Dr. Lisa Kaplowitz • Scenarios provide general context • Issues for discussion should be explored to the best of the groups’ abilities • Plenary session will follow to share key findings and to identify larger issues

50. Break Resume in Salon II (here) in 10 minutes...