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					The Public Health Department Response: Legal Considerations
Carol Lee Hamilton,
JD, MPA, RN

If you laid all our laws end to end, there would be no end.
Author: Arthur “bugs” Baer

To define the role of law in furthering the public health would be almost as large an undertaking as defining the role of law in the whole of our society. --- Alanson W. Wilcox, General
Counsel, Department of Health, Education and Welfare, 1964.

Health Authorities
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Physicians with statutory duties to protect health of the public Appointed for 2 year term(s) Scope of authority not always clearly circumscribed --- considerable discretion Consultation among health authority, public health director, elected and other key appointed officials should include legal perspectives

Health Authorities
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State health authority = Commissioner of Health State health authority can intervene in local response; CDC can direct State response Local, regional & State health authorities collaborate and provide back up Advisable to officially appoint alternate

Local Issues
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Safety of public, workers, volunteers Duties/rights of public health workers to
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Report to duty Follow credentialing procedures Match tasks with competencies Refuse assignments – licensed professionals Receive compensation for services Be reasonably protected from risks Communicate with family, significant others

Local Issues
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“What if” Scenarios:
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Unable to reach legal authority? Decisions made to protect community are rejected by some in community? Incorrect info. is released to the public ? Lack of workers & volunteers to meet needs? Overlapping jurisdictions disagree on execution of plans? Preparedness plan(s) are not ready/followed? What if sharing health info. would violate HIPAA?

Local Issues
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HIPAA: Heads or Tails? Heads: Providers must maintain reasonable & appropriate administrative, technical, and physical safeguards to:
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ensure integrity & confidentiality of PHI protect against reasonably anticipated:
threats or hazards to security or integrity of PHI  unauthorized uses or disclosures of PHI
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Local Issues
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HIPAA: Heads or Tails? Tails: LPH agencies can have PHI for the purpose of preventing or controlling disease, injury or disability, including but not limited to the reporting of disease, injury, vital events…and the conduct of PH surveillance, PH investigations… & Any covered entity may disclose PHI if “necessary to prevent or lessen a serious and immiment threat to the health or safety of a person or the public… .
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164.512(b)(1)(i) & (j)

Local Issues
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Business Associates -- The Cure All Myth
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If 2 entities have a pre-existing BA relationship, then a BA agreement will facilitate data sharing, but if 2 entities do not have such relationship, a BA agreement is NOT a legal cure
If the information is otherwise NOT subject to disclosure, but entities agree to the research benefits of sharing it, a LDS might help. But if disclosure is permissible under a HIPAA exception or exemption then the LDS might create more ambiguity than it will resolve HIPAA issues.

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Limited Data Sets -- The Band-aid Myth
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As part of preparedness, review work expectations with local public health employees.

Determine special needs employee will face.

Legal Liaison
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Designated LHD employee to focus on legal & risk considerations; part of ICS Assemble statutes, rules at fingertips & assure inclusion in preparedness plans Maintain contact information for municipal attorneys, district attorney’s office, DSHS attorneys, others with legal knowledge May also evaluate risks of decisions

Legal Liaison
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Serve in the ICS; possibly in multiple roles Alert public health director & team when legal opinion needed Collate facts and coordinate with attorneys to expedite legal review Provide or coordinate education for public health staff & community partners Promote inclusion of special legal, ethical and risk analysis problems in exercises

Key Statutes & Laws
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Public Health Reorganization Act, Health & Safety Code [H&S], Sec. 121 Environmental Quarantine – H&S Code, Ch. 508, added by 78th Legislature Communicable Disease Control, H&S Code, Sec. 181
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81.083 control measures for individuals 81.084 control measures for property 81.085 area quarantine

Environmental Quarantine
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H&S code, Ch. 508 added by 78th Legislature (after 9/11) Applies when environmental or toxic agent is introduced into environment Commissioner or LPH authority may impose area quarantine “Exercise any power for a response…that is authorized by..81.085 for response to an outbreak of…disease.” Up to 24 hr. or until time that appropriate action taken under Ch. 418 of Gvt. Code.

H & S Code Section 181
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81.082 administration of control measures Health Authority has “supervisory authority and control over the administration of communicable disease control measures….”
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Pre-emption by State applies Public Health disaster may be effect for up to 30 days; 1 renewal by State Commissioner Gov. may pre-empt declare disaster over

H & S Code Section 181
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81.082 administration of control measures
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(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12)

immunization detention restriction disinfection decontamination isolation quarantine disinfestation chemoprophylaxis preventive therapy prevention education

H & S Code Section 181
81.083 control measures for individuals If Dept. or a health authority has reasonable cause to believe indiv. is ill with, has been exposed to, or is the carrier of a communicable disease….may order the individual…. to implement control measures that are reasonable and necessary to prevent the introduction, transmission, and spread of the disease…..
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H & S Code Section 181
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81.083 control measures for individuals [cont’d]
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Written, in effect until no longer ill or, if suspected, until end of longest incubation period If indiv. refuses to comply Court order In public health disaster:  Written orders are waived  If indiv. Refuses to comply Court order

H & S Code Section 181
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81.083 control measures for individuals [cont’d]
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Who pays for related medical costs?  Indiv. if has means to pay  County if indigent resident  State (“may”) if indigent non-resident

Key Statutes & Laws
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Isolation & Quarantine authority is also derived in Texas from:
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Agricultural code Government Code Occupations Code Parks & Wildlife Code ---for PH emergencies and routine government regulation to protect the public

Key Statutes & Laws
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E.g., Occupations Code: Nurses § 301.305. BIOTERRORISM RESPONSE COMPONENT IN CONTINUING EDUCATION. (a) As part of continuing education requirements under Section 301.303, a license holder shall participate during each two-year licensing period in at least two hours of continuing education relating to preparing for, reporting medical events resulting from, and responding to the consequences of an incident of bioterrorism

Key Statutes & Laws
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Learn from other States & Localities
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E.g., Illinois passed HB 5164
Amends laws relating PH preparedness powers  Authorizes State health dept. to quarantine without prior notice, consent or court order  Addresses info. sharing, scope of practice for licensed professionals, syndronmic surveillance, emergency access to medical records, etc.  Drafted by members of Public Health Emergency Preparedness Legal Team, collaborated with ACLU, animal rights groups, A.G.’s Office & others
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Declaring the Emergency
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Notification of mayor & Council, or judge & Commissioners Ct. Official emergency declaration document is signed Shifts legal basis to act to emergency mode; FEMA can operate …But LHD can begin activation immediately upon notification to appropriate officials

Declaring the Emergency
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Federal Disaster Declaration issued under Dept. of Homeland Security, FEMA Notice in Federal Register, after immediate letter issued E.g., Katrina declaration:
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I [President] have determined that the damage…LA…from…Katrina…is of sufficient magnitude to warrant a major disaster declaration under the [Stafford Act]. Time periods, type of assistance e.g., debris removal, specific parishes covered

Declaring the Emergency
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Federal declaration of a Public Health Emergency is issued by Secretary of HHS. Sec’y has spending powers to issue grants and provide response assistance; & to investigate cause, treatment, or prevention of a disease... If Sec’y determines, after consultation with PH officials…that a disease or disorder presents a PH emergency; or a PH emergency, including…outbreaks of infectious diseases or bioterrorist attacks exist…may take …action…to respond.

Legal Issues During Katrina
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Privacy protections of shelter guests completing medical forms & receiving onsite triage & initial care Questions about legal authority of different levels of gvt:
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A county gvt. owned property but inside a City; ISD owned facility inside City; State orders to collect information; CDC making local site visits not requested by LDH

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Questions about privately run shelters, e.g., churches

Toward Legal Preparedness
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Include legal aspects in PH Prep. Plan Weave legal components routinely into tabletops & exercises Include multiple jurisdictions, agencies & players to closely simulate actual event Focus on identification of legal issues rather than resolution Coordinate with Planning Team (ICS) for documentation Prevention is the best legal “medicine”

Toward Legal Preparedness
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Workshops for responsible attorneys to focus on public health law
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“The Community Public Health Legal Preparedness Initiative” CDC, ABA & PHLA collaborative initiative Workshop Director’s Guide includes sample planning mtg. agenda, task lists, workshop agendas, presentation materials (slides) & promotional materials

Toward Legal Preparedness
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Preparedness Checklists from Center for Law & the Public’s Health
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Prevention, Preparedness, Response, Recovery Local Gvt. PH Emergency Legal Preparedness…* Interjurisdictional Legal Coordination…
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Horizontal & vertical issues included

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Civil Legal Liability & PH Emergencies…
Asks, “What civil liability may stem from ____?”  Intrastate & interstate Mutual aid agreements
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Toward Legal Preparedness
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Local Checklist Sample Questions:
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What are legal responsibilities & powers of local PH emergency response committees? What are legal requirements for NGOs to participate in reporting & surveillance efforts? Can local officials impose curfews or travel restrictions on the public in an emergency? Is local gvt. responsible for coordinating & providing mental health services following a PH emergency?

Toward Legal Preparedness
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Training & exercises: include special legal problems Public Health Law Association [PHLA] Annual joint CDC-ASLME conference CDC Office of Legal Preparedness CDC Legal Newsletter Workshops for responsible attorneys to focus on public health law Assemble your Legal Toolbox now

Summary: Survival Tools
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Name/number local attorney with primary jurisdiction – after hours number Public health lawyer(s) for consultation State Office of Legal Counsel – name/number
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512-458-7111

Summary: Survival Tools
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Health & Safety Code – especially Chapters 121 & 81 – PAPER copy as well as on your portable PC device Consent & waiver forms Liaison worksheet:
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Legal issue, supporting facts, players, pertinent laws, section for attorney’s additional questions &/or opinion

Toward Legal Preparedness
The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities www.publichealthlaw.net  CDC Public Health Program www.phppo.cdc.gov/od/phlp  Texas Legislature Online www.capitol.state.tx.us  Frank A. Grad, Public Health Law Manual, 3rd ed. 2004 [order from APHA www.apha.org]  Centers for Medicare & Medicaid Servoces - HIPAA http://www.cms.hhs.gov/hipaa/hipaa2/education/HIPAA Training.asp#HIPAATraining
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Confucius said: "Better a diamond with a flaw than a pebble without."

There seems to be a law that governs all our actions so I never make plans.“ Greta Garbo


				
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