Public Health Emergency Law

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\Public Health Emergency Law
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Florida Department of Health

• Presented by
• Timothy M. Cerio, General Counsel
• Florida Department of Health
• Tallahassee FL
• t_cerio_at_doh.state.fl.us

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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

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Florida Public Health Agencies

• Public health authority varies by state
  locality
• Floridas agencies
• DOH and CHDs
• AHCA
• DACS
• Elder Affairs
• DCF
• Fish Wildlife
• Juvenile Justice

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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

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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

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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.

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PrivacyState 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

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Public Health Powers Available for Mandatory
Isolation/Quarantine
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Quarantine and Isolation

• Federal law uses isolation and quarantine.
• Florida Statutes nowhere mention isolation
  but only quarantine.

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Federal Powers
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If State/Local Measures Inadequate
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State Power Quarantine of Agricultural Goods

• Quarantine of Goods
• Florida DACS
• Enforcement
• By these same agencies, roadblocks
• In conjunction with law enforcement, if necessary

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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

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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

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Principal Quarantine Actors

• Public Health reasons for quarantine
• Law Enforcement 2d degree misdemeanor
• Judiciary judges familiar issues associated
  with depriving people of liberty (criminal, TB
  statute, etc.)

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Role of Law Enforcement

• Enforce health order on its face
• Perimeter secured (cordon sanitaire)
• Constructive custody (like TB detention)
• Testify about non-compliance

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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

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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

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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)

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Insufficient Enforcement
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Emergency Public Health Powers Available for
Mandatory Vaccination Treatment
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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 64D-3.007(1)-(2), FAC.

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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

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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

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Issues of Importance During a Public
Health Emergency
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Important Legal IssuesMass 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

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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?

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Important Practical IssuesEncouraging Voluntary
Compliance

• Factors that undercut compliance
• Lost wages or income
• Groceries and essential services
• Boredom

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Pivotal IssueLessons from Canada SARS

• 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

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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

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Key Takeaways - Summary

• 1. Know the Legislation
• 2. Become Familiar with Agency Orders
• 3. Anticipate Practical Problems
• 4. Communication is Critical