Unit VII : Public Health, State Law, and Emergency Management Interaction

1. Unit VII: Public Health, State Law, and Emergency Management Interaction MSE 5101, Legal Aspects of Emergency Services Management

2. Public Health Laws When public health officials become aware of diseases that can cause a public health threat to U.S. citizens, the president can activate public health laws and policies to prevent potential diseases from becoming a public outbreak. The following laws and policies provide the federal government and states with authority to implement preparedness and mitigation measures during emergencies or disasters. Note: When influenza A (H1N1) became an international threat in 2009, the United States took immediate emergency measures to prevent the spread of the disease. The state government has authority for quarantine and isolation and the federal government has jurisdiction over interstate and border quarantine. State and federal government actions can cause legal issues for emergency measures regarding civil rights, liability, and employment.

3. Public Health Service Act • When a public threat occurs, the Public Health Service (PHS) Act allows the Secretary of the Department of Health and Human Services (HHS) to consult with public health officials to determine the following. • “A disease or disorder presents a public health emergency. • A public health emergency, including significant outbreaks of infectious diseases or a bioterrorist attacks, otherwise exists, the secretary may. . . respond by making grants, providing awards for expenses, and entering into contracts and conducting and supporting investigations into the cause, treatment, or prevention of a disease or disorder” (Congressional Research Service [CRS], 2009, p. 1). • Note: “The (HHS) Secretary is required to provide written notice of the determinations under this section (of the act) to Congress within 48 hours, but is not required to publish notice of the determinations in the Federal Register” (CRS, 2009, p. 1).

4. Public Health Emergency • On April 26, 2009, the HHS secretary determined H1N1 presented a public health risk, and a nationwide public health emergency declaration was issued. The declaration enabled the HHS secretary to take the following actions: • draw from a special federal emergency fund; • activate the Emergency Use Authorization that implements the Federal Food, Drug, and Cosmetic Act to use unapproved medical treatment and tests if needed during an incident; and • waive or modify Medicare and Medicaid programs for patient care or treatment if there is a concurrent declaration under the Stafford Act or the National Emergencies Act (CRS, 2009). • Note: Emergency statutory provisions for public health are specifically identified in the president’s declaration before they can be implemented. A Stafford Act declaration authorizes different types of assistance and amounts of funding for disaster response but does not conflict with the HHS secretary’s waiver or modification authority for a public health emergency declaration if both types of declarations are issued at the same time (CRS, 2009).

5. Quarantine and Isolation Authority: Federal Authorities State health departments and health officials have the primary authority for quarantine. “The federal government has jurisdiction over interstate and border quarantines“ (CRS, 2009, p. 6). In 2000, the HHS secretary transferred certain authorities, including interstate quarantine authority to the director of the Centers for Disease Control and Prevention (CDC). Note: In 2005, DHS and HHS signed a memorandum of understanding (MOU) to share responsibilities of quarantine and other public health measures. DHS designated the U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, U.S. Coast Guard, federal law enforcement agencies, and state and local law enforcement agencies to assist the CDC (CRS, 2009).

6. Quarantine and Isolation Authority: Federal and State Coordination “The primary authority for quarantine and isolation exists at the state level as an exercise of the state’s police power. States conduct these activities in accordance with their particular laws and policies” (CRS, 2009, p. 7). Under the Public Health Service Act, Section 311, federal and state agencies coordinate activities to enforce quarantines. State and local entities also help to enforce federal quarantines (CRS, 2009). Note: The federal government has the authority to take-over an incident should the state request further assistance or should it be determined there are inadequacies demonstrated at that time.

7. Quarantine and Isolation Authority: Federal Regulations In 2005, the CDC proposed changes to its quarantine regulations to “expand reporting requirement for ill passengers on board flights and ships arriving from foreign countries” (CRS, 2009, p. 7). The airlines and ocean liners are required “to maintain passenger and crew lists with detailed contact information and to submit the lists…to the CDC upon request” (CRS, 2009, p. 9). The lists are then used to inform travelers of suspected exposure to a person who is ill. Note: The traveler suspected of exposure to disease during travel may be subject to quarantine under the regulation, but the federal regulation also provides for an appeal process for the traveler to repeal the quarantine (CRS, 2009).

8. Border Entry Issues: Inadmissibility of Infected Aliens The Immigration and Nationality Act (INA) bars aliens from receiving visas and admission into the United States if they are diagnosed with a communicable disease of public health significance. The Public Health Service Act includes influenza viruses that may cause a pandemic, but the alien must be diagnosed with the influenza virus prior to admission to the United States, which may limit the effectiveness of the law (CRS, 2009). Note: The INA does not apply to U.S. citizens that may prevent the detection and spread of influenza viruses from entering the country.

9. Border Entry Issues:Border Quarantines of Citizens or Aliens Executive Order 13,295, specifies “certain communicable diseases for regulations providing for the apprehension, detention, or conditional release of individuals to prevent the introduction, transmission, or spread of suspected communicable diseases” (Executive Order No. 13,295, 2003). The Public Service Act, Section 361(b) states that if a U.S. citizen is suspected to be infected with any communicable disease listed in Executive Order 13,295, they “may be isolated, quarantined, or placed under surveillance, or disinfected if deemed necessary to prevent the introduction of the communicable disease” (CRS, 2009, p. 10). Note: Influenza viruses have the potential to cause a pandemic and therefore can warrant quarantine.

10. Border Entry Issues: Closing the Border Closing the border is a “blanket ban on all aliens and citizens seeking entry into the United States, regardless of their health” (CRS, 2009, p. 10). Since the Supreme Court ruled that U.S. citizens cannot be barred from entering the United States, congressional authority can only close the borders to aliens. If Congress gives the president authority to conduct a blanket closing of borders, the president could then implement a blanket ban through an executive order (CRS, 2009). Note: There are no laws that designate a specific federal agency with the authority to close the border to aliens for health purposes.

11. Airline and Travel Restrictions: Airline Corporate Policies Airlines have no legal requirement to provide transport to a person with a valid ticket if the passenger exhibits “a condition that may adversely effect the safety and/or security of the flight, its crew, or the other passengers” (CRS, 2009, p. 11). Airlines have a contract of carriage policy that authorizes the refusal of transportation or removal from a flight if a person exhibits behavior that requires emergency assistance (CRS, 2009). Note: The CDC has supplied direction to help airlines to identify passengers who may be infected with H1N1. The passenger will be placed in the CDC quarantine station at the airport immediately upon arrival (CRS, 2009).

12. Airline and Travel Restrictions: Public Health Do Not Board List In 2007, DHS and the CDC “developed a travel restriction tool to prevent the spread of communicable diseases of public health significance” (CRS, 2009, p. 11). Using the list of communicable diseases, domestic and international health officials have the authority to restrict persons who meet the criteria from departing from or arriving in the United States (CRS, 2009). Note: This travel restriction tool assists local public health officials that do not have sufficient laws to prevent people with certain contagious diseases from boarding commercial flights.

13. Airline and Travel Restrictions: Federal Airspace Authority • Originating with the 1919 Convention Relating to the Regulation of Aerial Navigation, the U.S. Congress delegated the legal authority over U.S. air space to the Federal Aviation Administration (FAA). The FAA may take any of the following actions: • prevent airlines from entering the United States if they originate from a country experiencing incidents of communicable disease, • restrict airlines traveling to countries with known incidents of communicable disease, and • restrict airlines traveling from a developing country to another country that requires travel through U.S. airspace (CRS, 2009). • Note: Every nation has sovereignty over the airspace above its defined territory. That is a hallmark aviation principle recognized by international agreements.

14. School Closures The CDC has the interim pre-pandemic planning guidance as a mitigation tool for schools to prevent an influenza pandemic. The guidance includes school closures for as long as 12 weeks. The U.S. Department of Education has conducted conference calls with state and district educational officials regarding the H1N1 virus. School closures are only recommended if the number of faculty or students absent interferes with the school’s ability to function (CRS, 2009). Note: The state or local education agencies or state or local departments of health have authority to close schools unless there is a state or local declaration of emergency that shifts authority to the state emergency management agencies to close schools.

15. Mandatory Vaccinations: Vaccination Orders During a Public Health Emergency The power to order mandatory vaccinations during a public health emergency or outbreak of a communicable disease rests with the governor of the state or with a state health officer. Upon a declaration of a public health emergency, a state health officer can order an individual to be vaccinated for a communicable disease that presents a danger to public health (CRS, 2009). Note: Exemptions for mandatory vaccinations are given for medical reasons or based on religion or conscience. People refusing to be vaccinated may be quarantined during the public health emergency.

16. Mandatory Vaccinations: Model State Emergency Health Powers Act “The Model Act was drafted by The Centers for Law and the Public’s Health at Georgetown and Johns Hopkins Universities” (CRS, 2009, p. 15). The Model State Emergency Health Powers Act (MSEHPA) seeks “to grant public health powers to state and local public health authorities to ensure strong, effective, and timely planning, prevention, and response mechanisms to public health emergencies (including bioterrorism) while also respecting individual rights” (CRS, 2009, p. 15). Note: During a public health emergency, the MSEHPA requires an authorized public health authority to vaccinate persons as protection against infectious disease and to prevent the spread of contagious disease (CRS 2009).

17. Mandatory Vaccinations: Role of Federal Government Under the Public Health Service Act, the secretary of HHS has the authority to enforce regulations to prevent the spread of communicable diseases. The act does not permit mandatory vaccination programs at the federal level during a public health emergency. State and local governments have the primary responsibility for defending the public health through the enactment of state laws authorizing mandatory vaccination measures during a public health emergency (CRS, 2009). Note: The act acknowledges that states have the primary responsibility for protecting the public health, but the federal government may intervene if deemed necessary.

18. Unit VII: Public Health, State Law, and Emergency Management Interaction Regarding the legal authority to control infectious disease, the local and state governments have sovereign control over their jurisdictions to issue public health laws and regulations. When infectious disease becomes a national issue, DHS, HHS, CDC, and FAA have sovereign control to protect U.S. citizens from communicable diseases entering the country by air or across the borders.

19. References Congressional Research Service. (2009). The 2009 influenza A (H1N1) outbreak: Selected legal issues(CRS Report No. R40560). Retrieved from http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/ R40560B_05212009.pdf Exec. Order No. 13,295, 3 C.F.R. 17255 (2003).