Public Health Emergency Law Office of General Counsel
Public Health Emergency Law Office of General Counsel 1
Florida Department of Health Presented by: Timothy M. Cerio, General Counsel Florida Department of Health Tallahassee FL t_cerio@doh. state. fl. us Office of General Counsel 2
Government Authority to Act in Emergencies: Model • Legal authority is at its peak at the height of an emergency • As crisis comes under control, legal authority is subject to greater legal constraints • Attention then shifts to responsibility for costs and damages/losses Office of General Counsel 3
Florida Public Health Agencies Public health authority varies by state & locality: • Florida’s agencies – DOH and CHDs – AHCA – DACS – Elder Affairs – DCF – Fish & Wildlife – Juvenile Justice Office of General Counsel 4
DOH Authority for Disease Surveillance The department may obtain and inspect copies of medical records, records of laboratory tests, and other medical-related information for reported cases of diseases of public health significance. Sec. 381. 0031(5), FS Office of General Counsel 5
HIPAA Public Health Deference HIPAA defers to the Public Health Authority State Law: Information submitted in reports [of diseases of public health significance] is confidential, . . . and is to be made public only when necessary to public health. A report so submitted is not a violation of the confidential relationship between practitioner and patient. Sec. 381. 0031(4), FS Office of General Counsel 6
HIPAA Public Health Deference 45 CFR 164. 512(a)(1) A covered entity may use or disclose protected health information to the extent that such use or disclosure is required by law [including state law] Sec. 381. 0031(1) FS: Any practitioner licensed. . . to practice medicine, osteopathic medicine, chiropractic medicine, naturopathy, or veterinary medicine; any hospital. . . ; or any laboratory. . . that diagnoses or suspects the existence of a disease of public health significance shall immediately report the fact to the Department of Health. Office of General Counsel 7
Privacy: State Law Exemptions - Florida • When disclosures are permitted, must be: – ‘necessary to public health’ • Medial, police, other state agency officials, CDC – For particular purposes, such as: • Particular threat to public e. g. e-coli outbreak at petting zoos and state fair events – Limited to information required for those purposes Office of General Counsel 8
Public Health Powers Available for Mandatory Isolation/Quarantine Office of General Counsel 9
Quarantine and Isolation Federal law uses ‘isolation and quarantine. ’ Florida Statutes nowhere mention ‘isolation’ – but only ‘quarantine. ’ Office of General Counsel 10
Federal Powers Office of General Counsel 11
If State/Local Measures Inadequate Office of General Counsel 12
State Power: Quarantine of Agricultural Goods • Quarantine of Goods – Florida DACS • Enforcement – By these same agencies, roadblocks – In conjunction with law enforcement, if necessary Office of General Counsel 13
Florida Authority to Quarantine It is the duty of the Department of Health to: Declare, enforce, modify, and abolish quarantine of persons, animals, and premises as the circumstances indicate for controlling communicable diseases or providing protection from unsafe conditions that pose a threat to public health. Sec. 381. 0011(6), FS Office of General Counsel 14
FL Quarantine (proposed) • County Health Department order of quarantine (no pre-deprivation judicial role) • Covers people, animals, premises • States reason(s) why – facts known • Expiration date • Fast-track internal review of grounds • Habeas corpus review Office of General Counsel 15
Principal Quarantine Actors • Public Health – reasons for quarantine • Law Enforcement – 2 d degree misdemeanor • Judiciary – judges familiar issues associated with depriving people of liberty (criminal, TB statute, etc. ) Office of General Counsel 16
Role of Law Enforcement • Enforce health order on its face • Perimeter secured (cordon sanitaire) • Constructive custody (like TB detention) • Testify about non-compliance Office of General Counsel 17
Role of Judiciary Physical Readiness: -- Measures to protect safety of hearing officers and participants Procedural Readiness: – Procedures for handling appearances – Court appointed counsel, bailiffs, court reporters Order release or more-coercive action, based on facts Office of General Counsel 18
Alternatives to Mandatory Quarantine • Public Health Advisories (recommendations). Sec. 381. 00315(1)(a), FS • Voluntary quarantine (in designated facility) • Masks and gloves • Self-quarantine at home Office of General Counsel 19
Quarantine Enforcement • Police – in Florida, F. S. 381. 0012(5) • National Guard - called up by Governor • National Guard - federalized by President • Military forces can be summoned – Enforcement of state quarantine is an exception to prohibition on use of military for domestic law enforcement (Posse Comitatus Act) Office of General Counsel 20
Insufficient Enforcement Office of General Counsel 21
Emergency Public Health Powers Available for Mandatory Vaccination & Treatment Office of General Counsel 22
FL Authority to Require Vaccination or Treatment ‘Tests or treatment, including vaccination, for communicable disease. . . to comply with a quarantine. ’ Sec. 381. 0011(6)(a)3, FS. ‘Orders regarding quarantine shall. . . restrict or compel movement or actions. . . consistent with the protection of public health and accepted health practices. ‘For the purpose of orders regarding quarantine, the term “actions” encompasses isolation, closure of premises, testing, destruction, disinfection, treatment, and preventive treatment, including immunization. ’ Rule 64 D-3. 007(1)-(2), FAC. Office of General Counsel 23
History Lesson, Mandatory Vaccination Constitutionality of mandatory vaccination: • Jacobson v. Massachusetts, USSCt (1905) – 1902 smallpox outbreak in Cambridge, MA – Conviction for refusal to be vaccinated, $5 fine – Police power embraces “reasonable regulations” to protect public health and safety – “Upon principle of self defense, community has a right to protect itself against an epidemic disease” Office of General Counsel 24
Federal Powers: Vaccination • No existing general federal authority for govt to mandate vaccination – Department of Defense and Department of State can require vaccination of servicemen after following specified procedures • Smallpox Emergency Personnel Protection Act of 2003 – Encourages vaccination by providing liability protection (for some of those vaccinating) and – Compensation for injuries caused by vaccination Office of General Counsel 25
Issues of Importance During a Public Health Emergency Office of General Counsel 26
Important Legal Issues: Mass Incidents Courts have not faced a true mass incident since flu pandemic in 1918 -1919 • Requirements for individual hearings will likely be relaxed when facing mass incident Office of General Counsel 27
Important Legal Issues: Obligations to Those Under Quarantine: • • Food – ESF-6 Medical care – ESF-8 Safety – ESF-16 Sanitary needs – ? – How to extend these services without endangering delivery people? – How to extend services without degrading other services? – How to address special needs? Office of General Counsel 28
Important Practical Issues: Encouraging Voluntary Compliance • Factors that undercut compliance: – Lost wages or income – Groceries and essential services – Boredom Office of General Counsel 29
Pivotal Issue: Lessons from Canada: SARS caused cancellation of major Toronto conventions, e. g. American Psychiatric Association, in domino fashion. The center of leadership in Toronto shifted. The fundamental context of SARS changed from being seen mainly as a health problem for government officials to solve; instead SARS was thereafter viewed also as an economic problem for the business leadership to solve. -- Gene Matthews, CDC Foundation Office of General Counsel 30
Lessons from Canada: SARS Quarantine Enforcement Canadian experience with SARS • Over 30, 000 quarantined in Toronto by provincial health authorities – Mandatory requirement that those exposed stay home • Only 27 formal quarantine orders were served • Only ONE formal appeal – Later voluntarily withdrawn after explanation Office of General Counsel 31
Key Takeaways - Summary 1. Know the Legislation 2. Become Familiar with Agency Orders 3. Anticipate Practical Problems 4. Communication is Critical Office of General Counsel 32
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