Management Issues in Outbreak Investigations: Part 1, Emotional and Legal Considerations

1. Management Issues in Outbreak Investigations: Part 1, Emotional and Legal Considerations M. Joan Mallick, R.N., Ph.D.

2. Background I served for four years as the Health Commissioner of a large urban public health department. During my tenure I directed the investigation of several large illness outbreaks. As I was following the CDC investigation of the anthrax outbreak in late 2001, I was reminded of the significant role management plays in the successful implementation of the scientific aspects of outbreak investigations.

3. Outbreak investigations are always public events. People who have spent quite lives are thrust into the limelight either as those who have become ill or those whose actions may be associated with the illness outbreak

5. Learning Objectives The technical aspects of outbreak investigation have been adequately described elsewhere (Outbreak Investigations-A Perspective; How to Investigate an Outbreak). The purpose of this course is to describe the administrative decisions that impact on outbreak investigation, helping or hindering the scientific aspects of the investigation.

6. Objectives Continued At the conclusion of Part 1 the student will be able to recognize the emotional issues that bear upon outbreak management describe instances where public health laws apply to outbreak investigations discuss the special circumstances associated with restaurant-related outbreaks

7. Performance Objectives At the conclusion of Part 1 of this course the student will be able to recognize behaviors that indicate anxiety in response to an illness outbreak locate public health laws that apply to outbreak investigations in a specific state or territory describe the risks to business caused by restaurant-related outbreaks describe industry guidelines for actions by restaurateurs during outbreaks

8. For administrative purposes an outbreak should be thought of as a CRITICAL incident in which events outside normal experience occur suddenly and unexpectedly and disrupt one’s sense of control including the perception of threat to life and income Many administrative decisions involve coping with these perceptions

9. Common responses to health departments’ efforts to investigate

10. When public health personnel advise organization administrators that an investigation is required, reactions include Threats to go to the bosses Threats of lawsuits Refusal to provide important information

11. Common Reactions Insistence on learning who reported the incident to the health department Refusal to allow health department staff into an establishment Insistence on conducting a private investigation

12. First Steps in Calming the Waters The announcement of an investigation should initially come from a person of equal or higher organizational status than the primary person in the organization involved it is a sign of respect for the affected administrator early discussions can serve as diplomatic as diplomatic meetings removed from the fray of the investigation and more likely to secure overall cooperation.

13. Once general cooperation is secured follow-up activities can be delegated to lower level staff. Their activities should be conducted within the chain of command of the affected organization never include threats be discussed with a HD supervisor if cooperation breaks down at his/her level carefully review staff activities for possible missteps leading to stalled activities

14. Health Department Actions in Response to Specific Behaviors The following slides provide suggestions for responding to specific behaviors of those affected by an outbreak

15. Anger at the Health Dept They say the Health Department is taking too long to conclude not thorough enough hiding findings You Say We will be happy to review and discuss procedural aspects of the investigation with you so you can get an idea of what is involved in the investigation We will consider any ideas about how to improve our performance share findings as they are made

16. Anger at the Health Department They say We will speak to your board of health members governmental supervisor You say Here are their phone numbers

17. Insistence on learning the name of person reporting the outbreak You say: the law specifies this as confidential information everyone involved in the investigation will need confidentiality protection. You will be protected by the same laws They say I won’t go along with this until I know who reported this to you

18. Desire to conduct a “private investigation” They say we can do our own investigation You say: you may conduct a parallel investigation (but not a substitute) if it does not interfere with the HD activities

19. Legal Authority* Health departments have specific legal authority to conduct investigations Most applicable laws are state statutes city statutes may provide additional legal leverage Visit http://www.lawsonline.com/ for copies of state health laws and find the health codes for your jurisdiction that broadly define HD powers and associated rules that more provide more specific guidelines for step-wise application of the laws

20. Health Department administrators should advise the department’s legal council about the outbreak investigation very early in the process. Health Department lawyers can instruct staff on how to apply laws appropriately prepare written communications about the legal authority of the HD that are to be given to affected agency managers deal with threatened lawsuits advise as to when it is appropriate to end persuasive efforts and move on to forceful legal action.

21. Will There Be a Legal Showdown? Voluntary participation is always the goal. Health Department actions to encourage voluntary participation may include explaining the nature of public health law quoting laws in written correspondence providing copies of relevant law appealing to their altruistic natures

22. These activities assume that upon learning about the HD’s legal authority, affected managers will agree that voluntary participation will be beneficial for everyone in the long run

23. Threatened Lawsuits They say Someone is going to pay for this If you do . . . we will sue You say the sole purpose of the investigation is to find a cause and to prevent it from recurring we will refer you to our lawyers if you want to discuss a law suit

24. Refusing Entry They will NOT say what if you find some other problem and report me to other governmental agencies? Expect that this reaction is always on the agenda. Before starting the investigation, and if state laws apply, advise that HD activities are only for purposes of finding the cause of the illness Reports to other agencies are made only if violations directly affect the outbreak development The Legal Basis of Public Health

25. Withholding Lists They say I’m not going to give you a list of who was involved until you. . . I can’t seem to find the list right now You Say without a list the investigation cannot be conducted we’re sure you don’t want to be thought of as someone who prevented resolution of this problem

26. Withholding Medical Records Physicians say: I must have authorization from the people I examined before I can give you their medical records You say: Public health law allows release of information without consent in outbreaks We will provide reference to or a copy of the applicable law along with our written request for the records

27. Withholding Event Details They say I’m afraid I’ll lose my job if I tell you everything that happened You say By law all information about this investigation is confidential your name will not be revealed you will not be connected to the information you provided

28. Legal Actions It is very important that no one from the HD threatens legal action in order to gain cooperation. this is considered to be coercion any consent given after threats is invalid Any mention of legal action should be withheld until legal council has advised that persuasive measures have been exhausted At that time discussing legal action is in the nature of advising of imminent action because of ongoing lack of voluntary cooperation

29. Legal Actions Legal action against uncooperative organizations may include search warrants subpoenas for information mandates for treatment restrictions on activities

30. Petitions for Legal Actions Authority to take specific actions, regardless of the authority granted by public health law must be granted by a judge. Be prepared to provide the judge with information about the need for access (I.e., public health threat) failed efforts to secure cooperation how many how often what was involved what was the response

31. Petitions for Legal Actions Because of the detail needed to secure legal authority to act it should be part of HD policy that any administrative actions associated with the scientific investigative activities are documented in detail as they are taken

32. Congratulations!

33. Now it is time to consider special issues that arise in restaurant-related outbreaks

34. The threat to business viability is a legitimate consideration for restaurant owners foodborne illness outbreaks have resulted in restaurant closures Six Restaurants Closed outbreaks associated with a restaurant may expose the restaurant to lawsuits Outbreaks and Restaurant Lawsuits ; Lawyers specializing in foodborne illness lawsuits Health Department staff must take this issue into consideration and make all efforts to support long term business viability the administrative decision to close a restaurant should be made as a last resort

35. Restaurant Trade Associations Many larger restaurants are members of centrally managed or franchise chains. there will often be standardized policy and procedure manuals There is a national restaurant trade association that provided guidelines The guidelines often offer advice on how to limit outbreak investigations to in-house activities

36. We Can Take Care of This The national restaurant association has a Crisis Management Manual that includes suggestions for responding to a food-borne illness. The manual provides guidelines for internal and external responses to foodborne outbreaks. (National Restaurant Association, 1200 17th St. Washington, DC, 2002. (The manual is not available online)).

37. We Can Take Care of This These guidelines advise restaurateurs to Record and evaluate illness complaints for their legitimacy including such criteria as complainant’s attitude consistency of complaint information detailed information about the nature of the illness Request HD involvement once the complaint has been judged to be valid

38. Say What???? The guidelines include the following statements: “Inviting regulatory intervention might seem ridiculous; on the other hand, some local ordinances may require you to report suspected outbreaks.” “. . .health departments and other regulatory agencies have the potential to . . . harm your operation by overreacting and making strong media statements.”

39. Don’t expect restaurant staff to be happy to see you!

40. Given that a hostile reception is possible HD staff can take measures that will improve cooperation.

41. Actions supportive of restaurant owners If customers are in the restaurant when the investigation begins Avoid broadcast announcements of the problem Assign someone to the door to speak with customers as they leave Provide written information about the concerns and investigation process. CDC Food borne Illness Home Page has a variety of printable forms on food borne illnesses assign staff to contact customers table by table

42. Restaurant Closure If the restaurant must be closed for remedial action assure owners that they may reopen as soon as source of problem has been identified and remediated in order to allow owners some sense of control consider allowing them to post their own “closed” sign check with the HD’s legal council to determine whether the posting of the closure must include details of the health code violations. if not, allow the owner to post his/her own sign as approved by the HD remind them that the HD will tell them when the sign can come down

43. What about staff? When an investigation involves restriction of food handling staff but not restaurant closure, owners tend to fire or lay them off they anticipate a loss of business and reduced ability to pay staff they suspect that staff are to blame and seek punishment In order to clarify that the health department is not recommending that be relieved of all duties, restriction letters should specify that the staff member(s) may still perform other duties in the facility

44. Do the customers need medical follow up? The HD administrator must decide where customers should/can go for follow up does the HD have clinics that can provide appropriate follow up? do other facilities in the community have better follow-up services? notify them of possible surge of patients work with HD’s medical director to determine what information should be given to health care providers provide guidance in writing

45. This concludes Part 1 of this course Part 2 of this course (coming soon) will discuss more about how to communicate with the public and how to make the media your friend during an outbreak investigation