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Pandemic Influenza Legal Preparedness

This course explores the legal authority and issues surrounding pandemic influenza preparedness at international, federal, state, and local levels.

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Pandemic Influenza Legal Preparedness

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  1. Pandemic Influenza Legal Preparedness Comstock.com CDC Comstock.com 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.

  2. 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@pitt.edu

  3. 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 Public Health Emergencies

  4. 1918 Influenza Pandemic - H1N1 • 25% morbidity • 2.5 % mortality • 675,000 U.S. • 50-100 million worldwide • US life expectancy • dropped > 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

  5. 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.

  6. 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

  7. Spread in less than 30 days! Source: PBS, WGBH American Experience :Influenza 1918 www.pbs.org/wgbh/amex/influenza/maps

  8. Pandemic Influenza Legal Preparedness • 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 Learning Objectives

  9. Pandemic Influenza Legal Preparedness Occurring on the international, federal, state, and local levels Comstock.com

  10. Pandemic Influenza Legal Preparedness Based upon traditional public health legal authority Comstock.com

  11. Review: Federal Public Health Legal Authority • United States Constitution • Article I § 8 • Levy taxes • Regulate commerce between the states Comstock.com

  12. Examples: Federal Public Health Legal Authority • The Occupational Safety and Health Act of 197029 USCS § 651 et. seq. • The Food, Drug and Cosmetic Act21 USCS § 321 et. Seq. • The Fair Labor Standards Act of 193929 USCS § 201 et.seq. • More…..

  13. Review:State Public Health Legal Authority United States Constitution 10th Amendment Police Power Federal Government Sovereign states Comstock.com

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

  15. 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

  16. 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)

  17. 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).

  18. 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 orisolate the infected person until the disease is no longer communicable. 35 Pa Cons. Stat. § 521.11(a.1) (2005).

  19. 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

  20. 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)

  21. Ohio Public Health Legal Authority • Title 37 Health – Safety – Morals • Ohio Dangerous Communicable Disease LawORC Ann. § 3707.04 • Local Health Department Administration and Director: Communicable Disease Control OAC Ann. § 3701-36-06 • Establishment of Health DistrictsORC Ann. 3709.1 Photodisc/Health and Medicine/Getty Images

  22. 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)

  23. 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 board’s written permission in order to preventcontact with others not exposed, and enforce restrictive measures prescribed by the department. ORC Ann. § 3707.08

  24. 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

  25. Federal Public Health Authority

  26. 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

  27. 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)

  28. 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."

  29. State and Federal Public Health Powers • Examine • Isolate ill • Quarantine exposed • Mandate treatment • Use private property

  30. 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

  31. 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

  32. 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

  33. 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. Glucksberg521 U.S. 702 (1997)

  34. Analysis Public Health ordered isolation, quarantine and/or detention for treatment Permitted by state and federal public health law Best v. St. Vincent’s Hospital2003 U.S. Dist. LEXIS 13188 United States District Court Southern District NY Constrained by Civil liberties Due process Equal protection Best v. St. Vincent’s Hospital2003 U.S. Dist. LEXIS 13188 United States District Court Southern District NY

  35. 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

  36. 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 Machipong Land & Coal Co. v. Commonwealth 799 A2d 751 (pa. 2002)

  37. Model State Emergency Health Powers Act (MSEHPA)http://www.publichealthlaw.net/MSEHPA/MSEHPA2.pdfand http://www.publichealthlaw.net/MSEHPA/MSEHPA%20Surveillance.pdf Draft legislation Model for states to assess legal preparedness for public health emergencies

  38. 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

  39. 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

  40. 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

  41. 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

  42. 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

  43. Business Preparedness for Pandemic Influenza – Legal Issues Threats to business in a crisis • Potential plaintiffs • Employees • Patients or visitors • Customers • Shareholders • Suppliers • Labor unions

  44. Major Legal Issues for Businesses • OSHA • Worker’s Compensation • Family Medical Leave Act • ADA • Health Benefits • Labor Agreements • Confidentiality

  45. Business Preparedness for Pandemic influenza • Review all healthcare, disability and workers’ compensation coverage • Business interruption insurance • Review absenteeism policies • Develop Continuation Of Operations Plans

  46. Pandemic Influenza Legal Preparedness Activities and Resources • Community Containment of SARS http://www.cdc.gov/ncidod/sars/quarantine.htm • National Association of City and County Health Officials (NACCHO) pandemic influenza site http://www.naccho.org/topics/infectious/emerging/avian.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/decisiontool/

  47. 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=1084&context=jhsem • World Health Organization Pandemic Influenza Plan http://www.who.int/csr/resources/publications/influenza/WHO_CDS_CSR_GIP_2005_5/en/ • CDC Privacy Rule recommendations http://www.cdc.gov/privacyrule/Guidance/Content.htm

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