Legal Ramifications of Declaring a Public Health Emergency

I noticed that 2 old posts of mine about the laws and regulations governing public health emergencies were getting a lot of attention this week.  I thought I would post them again, as they may soon be relevant here, and are already relevant to Africans faced with quarantines, cordon sanitaires and other legal and physical barriers to contain Ebola.

From the Times of India:

UNITED NATIONS: With more than one million people affected by the current Ebola outbreak in West Africa, the WHO has warned that there is "no early end in sight" to the severe health crisis and called for "extraordinary measures" to stop the transmission of the disease.

The next two posts are mine from January, 2013:

Wednesday, January 9, 2013

State of Emergency: 700 flu cases in Boston this season and 4 elderly deaths/ NY Daily News

Puh-Leeze.  A State of Emergency?  I'd laugh except declaring an emergency gives states new political powers.  Powers designed by CDC and Lawrence Gostin.  Begun by 1999, before the anthrax letters or comparable public health emergencies existed, CDC "called for strengthening the legal foundation for public health practice."

The Model Emergency Health Powers Act was only unveiled 4 weeks after the anthrax letters emergency, a time of confusion when legislators were inclined to approve legal fixes.  Yet good legal arguments can be made that the new powers are unnecessary, unethical and conflict with prior health law. On this issue the Heritage Foundationand I come together.

Under the original Model State Emergency Health Powers Act, upon the declaration of a "public health emergency," governors and public health officials would be empowered to do the following and more:

• Force individuals suspected of harboring an "infectious disease" to undergo medical examinations.
• Track and share an individual's personal health information, including genetic information. [The new electronic medical records do this already--Nass]
• Force persons to be vaccinated, treated, or quarantined for infectious diseases.
• Preempt existing state laws, rules and regulations, including those relating to privacy, medical licensure, and--this is key--property rights.
• Control public and private property during a public health emergency, including pharmaceutical manufacturing plants, nursing homes, other health care facilities, and communications devices.
• Mobilize all or any part of the "organized militia into service to the state to help enforce the state's orders."
• Ration firearms, explosives, food, fuel and alcoholic beverages, among other commodities. 

"One of the most outspoken opponents of the MSEHPA, on which Article VI of the Turning Point Model is based, is George Annas, who eloquently outlines a few of the most popular objections to the act: (1) bioterrorism is inherently a federal issue, and only secondarily a state issue; (2) the premise that Americans must trade freedom for security in the event of a bioterrorist attack is wrongheaded, as is the presumption that the public and physicians would not cooperate except under threat of law; and (3) the arbitrary use of force by public officials with immunity from liability is incompatible with medical ethics, constitutional principles, and basic democratic values."   See his NEJM article here.

Last year (winter 2011-12) was the lightest flu season since records started being kept:  basically there was no flu epidemic.  The year before was also light.  That is how influenza works:  some years lighter, some heavier.  The heavier years give us more cross-immunity for future outbreaks.

Anyway, this year is [unsurprisingly] heavier.  One in 25 ER patients has flu.  As a former ER doc, that is something to yawn about.  But I'm not yawning about the emergency powers invoked--to do what, exactly?  From the Daily News:

The City of Boston declared a public health emergency Wednesday as the city and country deal with a historic outbreak of the flu.  The influenza-ravaged city has seen about 700 confirmed cases of the virus since Oct. 1, the unofficial start of the flu season, according to the office of Boston Mayor Thomas Menino, who declared the state of emergency Wednesday morning.

By comparison, Boston saw 70 confirmed cases during last year’s flu season.

The outbreak has so far killed four Boston residents, all elderly, since the season unofficially began.

“This is the worst flu season we’ve seen since 2009, and people should take the threat of flu seriously,” Menino said in a release...

Thursday, January 10, 2013

What Does State of Emergency mean?

What exactly is a "state of emergency"?

According to Association of State and Territorial Health Officials (ASTHO), state declarations "may also identify state rules and regulations that are waived or suspended during the emergency...  They can include:

• Activation of statutory immunities and liability protections for those involved in response activities.

• Suspension and waiver of rules and regulations (and statutes, if allowed).

• Streamlining of state administrative procedures such as procurement requirements." 

Here is an 87 page guide to declared public health emergencies in NY State.  Each state is a little different regarding its legal framework for such emergencies, and municipalities are different as well.  But they are more similar than different.  Page 50 says the following: 

Executive Law §§ 29-a(1) [“Subject to the state constitution, the federal constitution and federal statutes and regulations . . . the governor may by executive order temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster  emergency.”]

ASTHO also tells us the following about the federal response:

Federal law imbues designated federal officials with broad powers that allow them to respond to and assist states and localities in responding to emergencies even without a federal emergency declaration ...

Federal emergency declarations activate legal and programmatic responses from federal agencies including: 

• Activating federal assistance to states in the form of financial, personnel, services, logistical, and technical assistance.

• Triggering emergency provisions in other laws including Social Security Act Section 1135 waivers and statutory immunities and liability protections, such as the Public Readiness and Emergency Preparedness Act (PREP Act) [which waives liability for manufacturers whose products are used under PREPA, even if they do not work and cause considerable injuries.  Swine flu vaccine was given under PREPA, so US children who developed narcolepsy could not sue the manufacturer.  Anthrax vaccine is given to civilians under PREPA as well.--Nass]

• Easing regulatory requirements on individuals, organizations, and state and local governments.

• Activating the National Response Framework, National Incident Management System, and other emergency response protocols and systems.

Declared public health emergencies provide a potential back door to suspension of democracy.  By declaring frequent, bogus states of emergency for swine flu, flu and the next not-so-dread disease, Americans may be lulled into ignoring the suspensions of the rule of law that may accompany the declarations.  

It's the Patriot Act all over again.  The Patriot Act was enabled by the fog of war.  

Now it's the smog of pestilence that enables the killing of democratic traditions.  In the shadows, the republic is being killed by a thousand cuts.  This is how Hitler did it, too.