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- LEGAL CONSIDERATIONS FOR PANDEMIC INFLUENZA
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The Legal Considerations Section includes the following
subsections:
• Legal Issues
Describes substantive legal issues that are likely to arise in a
pandemic and how they are being addressed.
• Legal Resources
Lists available legal resources and indicates where they may be
found. These include model documents such as legal orders that
the Commissioner might issue; background documents on websites;
etc.
• Partnerships and Outreach
Describes committees and advisory groups that have legal
components and/or are addressing legal issues.
• Training
Describes past, current and future training programs on legal
issues.
• Other Agencies
Lists legal issues that are the responsibility of other state
agencies.
• Miscellaneous
Addresses additional minor legal issues.
LEGAL ISSUES
1. Emergency Declarations
There are two statutes in Massachusetts that allow the Governor
to declare an emergency.
Public Health Emergency. Under M.G.L. c. 17, § 2A, if the
Governor declares that an emergency exists which is detrimental
to the public health, the DPH Commissioner may, with the
approval of the Governor and the Public Health Council, “take
such action and incur such liabilities as he may deem necessary
to assure the maintenance of public health and the prevention of
disease.” In addition, with the approval of the Public Health
Council, the Commissioner may “establish procedures to be
followed during such emergency to insure the continuation of
essential public health services and the enforcement of the
same.”
• Pandemic Period: The Commissioner and senior DPH staff will be
in continuous close touch with the Governor’s office. If the
Commissioner determines that the situation warrants a
declaration of public health emergency based on epidemiological
information, speed of disease spread, etc., he would request
that the Governor issue such a declaration. Once the declaration
is made, the Commissioner would have all necessary authority to
issue orders; waive statutes and regulations that impede
emergency response; seize property if necessary, etc.
State of Emergency. Under Chapter 639 of the Acts of 1950, the
Governor may declare a state of emergency due to (among other
circumstances) “the occurrence of any disaster or catastrophe
resulting from attack, sabotage or other hostile action; or from
riot or other civil disturbance; or from fire, flood, earthquake
or other natural causes.” Because an influenza pandemic can be
considered a catastrophe resulting from natural causes, the
Governor might decide to declare a state of emergency concurrent
with declaring a public health emergency, or without declaring a
public health emergency.
By the terms of the statute, a state of emergency confers upon
the Governor extraordinary powers to protect the lives and
property of the citizens of the Commonwealth and to enforce the
laws. In practice, if a state of emergency were declared during
a pandemic, MEMA would activate the State Emergency Operations
Center and DPH would be a crucial participant in emergency
response under ESF-8. It is expected that the Governor would
delegate broad health-related powers to the DPH Commissioner,
with the result that there would be little if any practical
difference between a declared public health emergency and a
declared state of emergency.
DPH legal counsel are familiar with the powers available under
both types of emergency declarations, and would advise policy
makers on appropriate legal means to achieve policy goals.
2. Restrictions on Personal Liberty
Isolation and Quarantine. Legal preparations have been and are
continuing to be made to isolate or quarantine individuals or
groups of people, should DPH policy makers decide that such
measures are necessary to protect the public health during the
Pandemic Alert Period and/or the Pandemic Period.
• Massachusetts statutes and regulations authorize isolation and
quarantine for diseases dangerous to the public health.
• Legal materials for isolation and quarantine of individuals,
originally developed for SARS, have been modified for pandemic
flu. These are complied into a set of documents known as “Legal
Nuts and Bolts of Isolation and Quarantine,” available from the
DPH Office of General Counsel and the Health Education Unit,
Division of Epidemiology and Immunization. They include
documents that state and local health authorities would use for
stepwise enforcement of isolation and quarantine, beginning with
letters requesting voluntary cooperation, up to court pleadings
and related documents to compel isolation.
• Due process protections have been considered in drafting these
documents, guided by the principle that whatever measure is used
should be the least restrictive of personal liberty while
protecting public health. Non-custodial orders (e.g. home
isolation) may be appealed by a telephone call to a health
official, while custodial measures (e.g. isolation in a
hospital) would in most cases require a court order. Efforts
will be made to ensure that people who are subject to court
proceedings for mandatory isolation or quarantine have access to
attorneys. Judges may be contacted at any time, day or night,
through the State Police.
Other Restrictions on Personal Liberty. It is possible that a
wide variety of other measures might become necessary to protect
the public health during a Pandemic Alert Period or Pandemic
Period, some of which impose certain restrictions on personal
liberty. Examples include requiring people to self-monitor for
medical conditions; requiring medical evaluations and/or
vaccinations, prophylaxis, or medical treatment; closing
businesses, public transportation; etc.
• Templates have been drafted for orders that the DPH
Commissioner could issue during a public health emergency, and
additional templates are in process. The templates include
findings or statements that the measures being ordered are the
least restrictive alternative or the most reasonable way to
address the threat to public health.
3. Use of Volunteers
During the Pandemic Period, there will almost certainly be a
shortage of doctors, nurses, and other health care workers to
care for patients. Using HRSA funds, DPH is creating the
Massachusetts System for Advance Registration of Volunteer
Health Professionals (MSAR), a database of registered and
pre-credentialed volunteers who can be called up by the
Commissioner when the need arises. The database will initially
contain various categories of health care volunteers, and will
later be expanded to include others (translators, etc.).
Three legal documents underlie MSAR:
• MSAR Program Policy
• Participation Agreement (to be signed by participating
organizations)
• Individual Terms and Conditions (to be signed by individual
volunteers)
Credentialing
Pre-credentialing will be accomplished either by hospitals that
sign the Participation Agreement with DPH, or by other
organizations, through a contract with DPH, for practitioners
who are not affiliated with a hospital. DPH legal counsel are
working with the health care licensing boards and hospitals to
ensure that credentialing and license restriction issues are
handled consistently and in accordance with the HRSA guidelines
and state law.
The many locally-based Medical Reserve Corps (MRCs) around the
Commonwealth also provide a potential source of volunteers. MRC
members are being encouraged to join the MSAR system, and DPH
has contracted with a vendor who is providing coordination
between the MRC system and MSAR.
Liability
Protection from malpractice liability for MSAR volunteers when
they are working in other than their regular place of employment
is an important consideration. While there are no liability
statutes or regulations specific to MSAR, depending on the
circumstances MSAR volunteers may be able to take advantage of
various existing laws. A summary document and PowerPoint
presentation dealing with liability protections for
Massachusetts health care volunteers responding to a disaster
may be found at http://www.mass.gov/dph/bioterrorism/advisorygrps/index.htm
Worker’s Compensation
Currently there is no Workers’ Compensation coverage for MSAR
volunteers, unless the volunteer is considered by his or her
employer to be within the scope of employment when activated
under MSAR. The MSAR Statewide Advisory Committee will continue
to study this issue.
4. Mutual Aid
Local Mutual Aid
Through the Center for Emergency Preparedness and the Regional
Coordinators, DPH is encouraging city and town boards of health
and health departments to enter into agreements to assist
neighboring communities with public health resources in times of
need. A template has been developed that can be used and
modified by local government officials to fit their particular
legal structure and needs. A significant number of communities
across the Commonwealth have signed mutual aid agreements to
date.
Interstate Mutual Aid
Massachusetts is a member of the Emergency Management Assistance
Compact (EMAC), which allows states to share personnel and
material resources in times of disaster, pursuant to a
Governor’s request for assistance. MEMA is the coordinating
agency for EMAC in Massachusetts. DPH would work closely with
MEMA if Massachusetts required public health assistance from
other states, or if Massachusetts received an out-of-state EMAC
request for public health assets.
International Mutual Aid
Massachusetts is a member of the International Emergency
Management Assistance Memorandum of Understanding, also known as
IEMAC (International Emergency Management Assistance Compact).
This agreement covers the six New England states and five
Eastern Canadian provinces (Quebec, New Brunswick, Nova Scotia,
Prince Edward Island and Newfoundland & Labrador). DPH legal
counsel is actively involved in identifying and addressing legal
issues in the implementation of IEMAC, towards the goal that
Canadian public health assets would be available to
Massachusetts if needed.
5. Data Sharing
For obvious reasons, sharing of information is crucial to
efforts to predict, prevent, and contain a pandemic during all
phases (Interpandemic, Pandemic Alert, and Pandemic Periods).
Also, during the Pandemic Alert and Pandemic Periods, there may
be a need for sharing of more personal health information than
is the case under normal circumstances. The following summarizes
legal authorities and issues related to data sharing.
Provision of Data to Governmental Authorities
DPH will need identifying information about cases, suspect
cases, and contacts in order to track the disease outbreak and
implement containment measures. Current law gives the Department
broad authority to require health care providers and
organizations to report dangerous diseases, through M.G.L. c.
111, § 7 and its implementing regulations, 105 CMR 300.000. This
statute and regulations also authorize DPH to undertake broad
disease surveillance activities.
Many diseases, including influenza, are reportable to local
boards of health, which are then required to report to DPH
within 24 hours. If a disease is not among those listed as
reportable, 105 CMR 300.150 allows the Commissioner to require
reporting of and surveillance for diseases or conditions which
are newly recognized or recently identified or suspected as a
public health concern.
The federal Health Insurance Portability and Accountability Act
(HIPAA) Privacy Rule contains a broad public health exception to
its confidentiality requirements. It allows health care
providers and organizations to disclose protected health
information to a public health authority for purposes of disease
reporting, public health surveillance, public health
investigations, and public health interventions. 45 CFR §
164.512(b).
The HIPAA Privacy Rule also contains an exception which allows
disclosure of protected health information when the provider or
organization believes that the disclosure is necessary to
prevent or lessen a serious and imminent threat to the health or
safety of a person or the public, and the disclosure is made to
a person or persons reasonably able to prevent or lessen the
threat. 45 CFR § 164.512(j)(1). For example, this exception
would allow a hospital, provider, or DPH to release identifying
information to the police, if law enforcement assistance were
needed to enforce an isolation or quarantine order against an
individual.
Dissemination of Data by DPH and other Governmental Authorities
Under M.G.L. c. 111, § 5, DPH is directed to “conduct sanitary
investigations and investigations as to the causes of disease,
and especially of epidemics,” and to “disseminate such
information relating thereto as it considers proper.” This gives
DPH very broad authority to disseminate appropriate information
during all pandemic phases.
Under MDPH’s regulations governing reportable diseases,
surveillance, and isolation and quarantine requirements
(“Disease Regulations”), personally identifying information may
be disclosed by MDPH or a local board of health when necessary
for disease investigation, control, treatment, and prevention
purposes. 105 CMR 300.120. When disclosing personal data/health
information, state agencies (this does not include local boards
of health) are subject to the Massachusetts Fair Information
Practices Act (FIPA M.G.L. c. 66A). FIPA bars state agencies
from disclosing personal data unless authorized by the subject
of the data or by a statute or regulation. In most situations,
MDPH’s authority to release information for disease-related
purposes pursuant to M.G.L. c. 111, § 5 or 105 CMR 300.120 will
be sufficient to permit the release of personal data when
necessary for the protection of public health.
During the Pandemic Phase, patients will receive medical
treatment in a variety of settings and are likely to be
transferred among settings. MDPH plans to track their
whereabouts, in order to be able to notify family members and
friends of their location at any particular time. To enable this
to happen, it is expected that hospitals will provide
identifying information to MDPH under a HIPAA waiver (explained
in section 6.G. below), or under HIPAA’s “required by law”
exception in the event that the MDPH Commissioner issues an
order requiring patient tracking. MDPH is not bound by HIPAA in
connection with its public health activities, and therefore can
release a patient’s location to family members and friends in
the interests of public health and safety (restoring calm,
avoiding panic, etc.).
6. Waivers of Federal CMS Requirements (“Section 1135 Waivers”)
Waivers of a variety of federal requirements under the federal
Medicare, Medicaid, and Children’s Health Programs may become
necessary during the Pandemic Period. The Statewide Surge
Committee is working with representatives of CMS to identify and
plan for all potentially necessary waivers.
Under 42 U.S.C. § 1320b-5 (section 1135 of the Social Security
Act), the Secretary of Health and Human Services has authority
to waive certain requirements of CMS programs in an emergency
area during a federal emergency period. An “emergency area” is a
geographical area in which, and an “emergency period” is the
period during which, there exist two types of declared
emergencies: an emergency or disaster declared by the President
under the National Emergencies Act or the Stafford Act, and a
public health emergency declared by the Secretary of HHS. 42
U.S.C. § 1320b-5(g)(1). At the Secretary’s discretion, waivers
that are authorized after the emergency has occurred may be made
retroactive to the beginning of the emergency period. 42 U.S.C.
§ 1320b-5(c).
With 2 exceptions noted below (EMTALA and HIPAA), the waivers
generally last for the duration of the emergency period or until
CMS determines that the waiver is no longer necessary. However,
if a hospital regains its ability to comply with a waived
requirement before the end of the declared emergency period, the
waiver of that requirement no longer applies to that hospital.
Requirements authorized to be waived under section 1135 of the
Social Security Act are listed below. These are sometimes
referred to as “Section 1135 Waivers.”
Available Waivers
A. Conditions of Participation: Subsection (b) (1)
The Secretary of HHS may waive:
a. Conditions of participation or other certification
requirements for an individual health care provider or types of
providers,
b. Program participation and similar requirements for an
individual health care provider or types of providers, and
c. Pre-approval requirements.
42 U.S.C. § 1320b-5(b)(1).
B. Licensure of Health Care Professionals: Subsection (b)(2)
The Secretary of HHS may waive “requirements that physicians and
other health care professionals be licensed in the state in
which they provide services, if they have equivalent licensing
in another state and are not affirmatively excluded from
practice in that state or in any state a part of which is
included in the emergency area.” 42 U.S.C. § 1320b-5(b) (2).
C. EMTALA: Subsection (b)(3)
The Emergency Medical Treatment and Labor Act (EMTALA) prohibits
hospitals from transferring a patient with an emergency
condition, or a woman in labor, out of the emergency room
without screening the person and medically stabilizing him or
her. The Secretary of HHS may waive actions under EMTALA (1) if
a hospital transfers a person who has not been stabilized, if
the transfer is necessitated by the circumstances of the
emergency, or (2) if the hospital directs or relocates a person
to receive medical screening in an alternate location pursuant
to a state emergency preparedness plan. 42 U.S.C. §
1320b-5(b)(3).
An EMTALA waiver will only be in effect if the hospital does not
discriminate among individuals that it transfers or relocates on
the basis of their source of payment or their ability to pay. It
is also limited to the 72-hour period beginning when a hospital
implements its disaster protocol. 42 U.S.C. § 1320b-5(b).
D. Physician Referrals: Subsection (b)(4)
The Secretary of HHS may waive sanctions under 42 U.S.C. §
1395nn(g), relating to limitations on physician referrals. 42
U.S.C. § 1320b-5(b)(4).
E. Deadlines and Timetables: Subsection (b)(5)
The Secretary of HHS may modify, not waive, deadlines and
timetables for the performance of required activities. 42 U.S.C.
§ 1320b-5(b)(5).
F. Payments under a Medicare+Choice Plan: Subsection (b)(6)
The Secretary of HHS may waive limitations on payments under 42
U.S.C. § 1395w-21(i) for health care items and services
furnished to individuals enrolled in a Medicare+Choice plan by
health care professionals or facilities that are not included
under that plan. 42 U.S.C. § 1320b-5(b)(6).
G. HIPAA: Subsection (b) (7)
The Health Insurance Portability and Accountability Act (HIPAA)
Privacy Rule requires health care providers to maintain patient
confidentiality in a variety of ways. Under this subsection, the
Secretary of HHS may waive sanctions for noncompliance with the
following requirements of the HIPAA regulations:
1. Requirements to obtain a patient’s agreement to speak with
family members or friends;
2. The requirement to honor a patient’s request to opt out of
the facility directory;
3. The requirement to distribute a notice of the uses and
disclosures of protected health information that the hospital
may make, and of the individual's rights and the hospitals’
duties with respect to protected health information; and
4. The patient’s right to request certain privacy restrictions,
and to request communications of protected health information
from the hospital by alternative means or at alternative
locations. 42 U.S.C. § 1320b-5(b)(7).
As with EMTALA, a HIPAA waiver will only be in effect if the
hospital does not discriminate among individuals on the basis of
their source of payment or their ability to pay, and it is
limited to the 72-hour period beginning when a hospital
implements its disaster protocol. 42 U.S.C. § 1320b-5(b).
Additional Waivers Needed
The following types of waivers may also be needed during the
Pandemic Period. MDPH is working with regional HHS staff to
determine whether and under what authority these waivers may be
possible.
• Waivers to allow reimbursement for facilities/practitioners
under circumstances where practitioners are being utilized who
would not normally be utilized. Examples:
o Practitioners not privileged by the facility within which they
are working or do not meet the CMS credentialing criteria
o Volunteer (unpaid) people
o Students & other categories of people who may not fit the CMS
conditions of participation for reimbursement
NOTE: These MAY be allowed under Section 1135 (b) (1) allowing
HHS to waive conditions of participation
• Waivers to allow Influenza Specialty Care Units (ISCU) or
other non-traditional facilities operating under state "special
project" licensing waivers to be recognized by CMS for
reimbursement purposes.
• Waivers to allow facilities and practitioners to provide care
that does not meet CMS approved guidelines while operating under
State Alternate Standards of Care waivers.
• Waivers to allow facilities to discharge or transfer patients
"against their will" during surge, including discharging
patients to home care or an ISCU.
• Waivers that would allow facilities to refuse to admit
veterans and require them to seek treatment at Veterans
Administration facilities.
• Waivers for EMS agencies to seek reimbursement for patients
not transported but examined/triaged/treated at home or
transported to an ISCU or physician’s office rather than a
hospital.
• Waivers to allow EMS/hospital agencies and practitioners that
are CMS participants to act under authority of State Alternate
Standards of Care waivers and triage patients via telephone to
home care or a physician’s office.
Procedures for Requesting Waivers
DPH will be in continuous contact with hospitals during the
Pandemic Period to determine if a waiver or waivers are
necessary, and will work with the appropriate federal officials
to expedite the process of requesting them.
During the TOPOFF 2 exercise, the legal office of the Illinois
DPH requested an EMTALA waiver through the Regional Counsel of
HHS. It went up the chain of command and was granted.
7. Use of Alternate Care Sites
During the Pandemic Period, it may become necessary for patients
to be treated in non-traditional health care settings. Plans are
underway to create Influenza Specialty Care Units (“ISCUs”),
which will be satellites of existing hospitals. Each ISCU will
serve the communities identified by a hospital to be within its
catchment “cluster”, as well as the surge patients discharged
from the affiliated hospital. The ISCU will be stood up
following MDPH approval of a specific request by the hospital,
in a pre-identified and pre-approved facility in a community.
Each ISCU will be licensed as a satellite of the hospital under
a temporary special project waiver.
Legal staff are involved in planning for the ISCUs so that they
may operate under appropriate legal authority and with any
necessary waivers. Issues to be addressed include tiered
staffing protocols, standing orders, admission and discharge
criteria, altered standard of care policies, activation
protocols, and others.
8. Altered Standards of Health Care
During the Pandemic Period, it may be necessary to alter
prevailing standards of medical care. There may be insufficient
health care personnel to deliver optimum care, as well as a
shortage of material resources (e.g. ventilators). Legal and
ethical guidelines need to be developed to aid decision-making
in these circumstances. An official relaxation of the standard
of care may become necessary, in order to relieve health care
providers and institutions from liability for failure to adhere
to prevailing standards under dire circumstances.
At the request of MDPH, the Harvard School of Public Health has
convened a working group to analyze these issues and develop
guidance. The group includes ethicists and representatives from
MDPH, the Harvard School of Public Health, several Massachusetts
hospitals, and the American Society of Law, Medicine and Ethics.
Hypothetical scenarios have been developed and community-based
discussions will be held, which ideally will lead to the
development of clear standards.
9. Use of Private Sector Resources
Voluntary loans
Private businesses and individuals may be willing to loan
materials or space in buildings to the Commonwealth in the event
they are needed, but they may question whether they would be
liable should the materials malfunction or should the buildings
have defects.
Liability protection for loan of materials by corporations, but
not individuals, may exist if the Governor has declared an
emergency under Chapter 639 of the Acts of 1950, 33 App. § 13-1
et seq. Section 13-12 of this statute provides that after the
Governor declares an emergency under § 13-5, no “person engaged
in any civil defense activities while in good faith complying or
attempting to comply with this act . . . shall be civilly liable
for the death of or any injury to persons or damage to property
as [a] result of such activity except that the individual shall
be liable for his negligence [emphasis added].” “Civil defense”
is defined to include “the preparation for and the carrying out
of all emergency functions, . . . for the purpose of minimizing
and repairing injury and damage resulting from disasters caused
by . . . hostile action . . . or . . . natural causes.” Under
this definition, responding to a flu pandemic would be
considered a civil defense function. However, it is uncertain
whether the word “person” includes corporations.
The loan of space in buildings is even more problematic. Section
13-12A of Chapter 639 only provides protection from negligence
for the loan of real estate when the real estate is provided
“for the purpose of sheltering persons during an actual,
impending or mock enemy attack.” There does not appear to be any
other legal protection for a person who loans real estate.
Governmental takings
It is a basic premise of constitutional law that the government
may take private property for public use, but it must provide
just compensation. U.S. Constitution, Amendment V; Massachusetts
Constitution, Article X. Section 13-5 of Chapter 639 of the Acts
of 1950 specifies this authority in detail. It states that when
the Governor has declared a state of emergency, he may take
possession of real estate, machinery, equipment, modes of
transportation, food, and fuel. Section 13-5 also specifies
procedures by which property owners may have compensation
assessed for the taking of their property.
MDPH also has broad powers in situations that threaten public
health. If the Governor has declared a public health emergency
under chapter 17, s. 2A, the Commissioner may, with the approval
of the Governor and the Public Health Council, “take such action
and incur such liabilities as he may deem necessary to assure
the maintenance of public health and the prevention of disease.”
This is very broad authority and is sufficient to allow MDPH to
take private property (e.g. medical supplies) if necessary.
Furthermore, M.G.L. c. 111, § 5A allows the Commissioner to
determine that it is essential in the interest of the public
health to provide the general public with a vaccine or
medication and that an emergency exists by reason of a shortage
of such product. When the Commissioner makes this determination,
DPH may "purchase, produce and distribute such product under
such conditions and restrictions as it may prescribe" and may
establish rules and priorities for the distribution and use of
the product. During a public health emergency, this statute and
c. 17, § 2A together allow MDPH to take necessary vaccines, etc.
from the private sector and control their distribution.
LEGAL RESOURCES
1. Model Documents
During the Pandemic Period and possibly during the Pandemic
Alert Period, it may become necessary for the Commissioner to
issue various orders to protect the public health. Various
templates for such orders have been drafted, which are located
in the DPH Office of General Counsel.
2. Documents for Isolation and Quarantine
The “Legal Nuts and Bolts of Isolation and Quarantine” package
includes model health letters, health orders, court pleadings,
and related documents. It is available from the DPH Office of
General Counsel and the Health Education Unit, Division of
Epidemiology and Immunization.
3. Other Legal Information
A summary document and PowerPoint presentation dealing with
liability protections for Massachusetts health care volunteers
responding to a disaster may be found at
http://www.mass.gov/dph/bioterrorism/advisorygrps/index.htm
Additional legal resources and tools include:
• Draft Model State Emergency Health Powers Act
www.publichealthlaw.net/MSEHPA/MSEHPA2.pdf
• Emergency Management Assistance Compact as adopted in
Massachusetts
http://www.mass.gov/legis/laws/seslaw00/sl000339.htm
• International Emergency Management Assistance Memorandum of
Understanding as adopted in Massachusetts
• http://www.mass.gov/legis/laws/seslaw02/sl020300.htm (See
section 58)
• Model Memorandum of Understanding for Establishment of Local
Public Health Mutual Aid and Assistance System
www.publichealthlaw.net/Resources/ResourcesPDFs/MOU.pdf
• American Bar Association Draft Checklist for State and Local
Government Attorneys to Prepare for Possible Disasters
http://www.publichealthlaw.net/Resources/BTlaw.htm
• CDC: Legal Authorities for Isolation and Quarantine (links to
information on federal authority for isolation and quarantine)
http://www.cdc.gov/ncidod/sars/legal.htm
• Quarantine and Isolation: Lessons Learned from SARS (A report
to CDC)
http://www.louisville.edu/medschool/ibhpl/images/pdf/SARS%20REPORT.pdf
• Checklists on Legal Preparedness for Bioterrorism and other
Public Health Emergencies (from the Center for Law and the
Public’s Health at Georgetown and Johns Hopkins Universities)
http://www.publichealthlaw.net/Resources/BTlaw.htm
• Legal Materials Related to Public Health Legal Preparedness
from CDC’s Public Health Law Program
http://www2a.cdc.gov/phlp/sub_menu.asp
Additional materials and resources may be posted at
http://www.cdc.gov/phlp/index.htm
PARTNERSHIPS/OUTREACH
• In 2003-2004, an Emergency Powers Working Group was convened
by the Governor’s office and the Attorney General’s office. It
included attorneys from many state agencies including MDPH, the
Executive Office of Public Safety, the State Police,
Environmental Protection, Agriculture, Fire Services, and
others. The group completed a tabletop exercise based on a
hypothetical release of a mysterious toxic substance, and wrote
memos summarizing the authority of each agency.
• There are legal representatives on the following groups that
are currently meeting and that include many stakeholders:
o Statewide Surge Committee: Addresses a wide variety of
pandemic surge issues
Surge Clinical Workgroup: in process of being formed. Will
address legal issues related to the Influenza Specialty Care
Units (ISCUs) including guidance on the care to be delivered,
tiered staffing protocols, standing orders, altered standard of
care protocols, etc.
o Massachusetts System for Advance Registration (MSAR) Advisory
Committee: Planning group for the statewide advance registration
system for health care volunteers
o Altered Standards of Care Working Group, chaired by the
Harvard School of Public Health: Explores how standards of
medical care would be altered in a pandemic
o New England Regional HRSA Group: Shares information and works
on regional issues involving hospital preparedness
o International Emergency Management Group: Shares information
and works on mutual aid issues for the New England states and
Eastern Canadian provinces
TRAINING ON LEGAL ISSUES
1. Training for Local Health Authorities
• The training program entitled “Legal Nuts and Bolts of
Isolation and Quarantine” has been presented to local health
authorities around the state numerous times, and two more of
these trainings will take place by the fall of 2006.
• A training session on liability protections for local health
authorities and volunteers has been presented twice.
2. Training for Law Enforcement
• Approximately 1200 state police officers were trained in
advance of the Democratic National Convention in the summer of
2004 by counsel to the State Police. Among other things, this
training covered the law enforcement community caretaking
function and the authority of the police to enforce orders from
health officials.
• Some local law enforcement officers have attended the “Legal
Nuts & Bolts of Isolation and Quarantine” trainings.
• A training program for state police is being planned for
summer 2006, to cover infectious diseases and the use of
isolation and quarantine for individuals, groups, and areas.
This may be extended to local police at a later date.
3. Training for the Judiciary
• Superior Court judges received materials from the “Legal Nuts
and Bolts of Isolation and Quarantine” several years ago. These
include health orders and court pleadings, motions, etc.
LEGAL ISSUES WITHIN PURVIEW OF OTHER AGENCIES
• Issues relating to overtime and/or flexibility of hours for
staff: The Human Resources Division is working on these.
• Environmental remediation of buildings: This is the
responsibility of the Department of Environmental Protection.
• Issues relating to schools: As necessary, MDPH will work with
the Department of Education to ensure that school-related issues
such as school closures and use of schools as alternate care
sites are handled according to law.
MISCELLANEOUS ISSUES
• Use of faith-based organizations: There should be no legal
problem if MDPH decides to partner with faith-based
organizations to assist or provide services to people during the
Pandemic Period. A group called the “Interfaith Alliance”
assisted with Hurricane Katrina evacuees on the Cape in the fall
of 2005. During that period, the Governor’s office also worked
with a coordinated interfaith effort called “MassFaithHelps,”
spearheaded by the Black Ministerial Alliance.
• Reintegration of persons subject to isolation/quarantine
orders: If necessary, MDPH will issue documents designed to
assist with reintegration of persons after isolation or
quarantine (e.g., letters to employers or schools explaining
that people are no longer infectious), and would assist local
health authorities in this effort.
Acronym Full Name of Organization
ACIP Advisory Committee on Immunization Practices
AIDS Acquired Immunodeficiency Syndrome
APHL Association of Public Health Laboratories
ARDS Acute Respiratory Distress Syndrome
ATS American Thoracic Society
BCDC Bureau of Communicable Disease Control
BOH Board of Health
BPHC Boston Public Health Commission
BRFSS Behavioral Risk Factor Surveillance Survey
BSAS Bureau of Substance Abuse Services
BTS British Thoracic Society
CAP Community-acquired Pneumonia
CBC Complete Blood Count
CCLS Center for Clinical and Laboratory Services
CDC Center for Disease Control and Prevention
CEH Center for Environmental Health
CEMP Comprehensive Emergency Management Plan
CEP Center for Emergency Preparedness
CHB Children's Hospital Boston
CMGA Crisis Management Group Associates
CMS Centers for Medicare & Medicaid Services
COG Continuity of Government
COOP Continuity of Operations Plan
COPD Chronic Obstructive Pulmonary Disease
CURB-65 Confusion, Urea nitrogen, Respiratory rate, Blood
pressure, 65 yrs.+
DHHS Department of Health and Human Services
DOD Department of Defense
EAP Employee Assistance Program
EARS Early Aberration Reporting System
ED Emergency Department
EDS Emergency Dispensing Site
EDSOTM Emergency Dispensing Site Operation and Management Plan
ELR Electronic Laboratory Reporting
EOHHS Executive Office for Health and Human Services
EMTALA Emergency Medical Treatment and Labor Act
ENDS Early Notification of Death System
EOPS Executive Office of Public Safety
FDA Food and Drug Administration
FFY Federal Fiscal Year
FQHC Federally Qualified Health Centers
GIS Geographic Information Systems
GSK IND Glaxosmithkline Investigational New Drug
HCW Healthcare Workers
HHAN Health and Homeland Alert Network
HIPAA Health Insurance Portability and Accountability Act
HIV Human Immunodeficiency Virus
HPHC/HVMA Harvard Pilgrim Health Care/Vanguard Medical
Associates
HRSA Health Resources and Services Administration
HSPD Homeland Security Presidential Directive 8
IDEP The Infectious Disease Emergency Planning
IDSA Infectious Diseases Society of America
ILI Influenza-like Illness
NREVSS National Respiratory and Enteric Virus Surveillance
System
IC Incident Commander
ICU Intensive Care Unit
IFA Immunofluorescence Antibody
ISCU Influenza Specialty Care Unit
LHD Local Health Departments
LIMS Laboratory Information Management System
LPAI Low Pathogenic Avian Influenza
LRN Laboratory Response Network
MAA Mutual Aid Agreements
MAESF Massachusetts Emergency Support Function
MAHB Massachusetts Association of Health Boards
MAHP The Massachusetts Association of Health Plans
MAPHN The Massachusetts Association of Public Health Nurses
MassPRO The Massachusetts Quality Improvement Organization
MCAAP The Massachusetts Chapter of the American Academy of
Pediatrics
MCB Massachusetts Commission for the Blind
MCDHH Massachusetts Commission for the Deaf and Hard of Hearing
MDAR Massachusetts Department of Agricultural Resources
MDMH Massachusetts Department of Mental Health
MDPH Massachusetts Department of Public Health
MEMA Massachusetts Emergency Management Agency
MEMT Massachusetts Emergency Management Team
M.G.L. Massachusetts General Law
MHA The Massachusetts Hospital Association
MHOA The Massachusetts Health Officers Association
MIDS The Massachusetts Infectious Disease Society
MMS The Massachusetts Medical Society
MNA The Massachusetts Nurses Association
MRC Medical Reserve Corps
MRSA Methicillin-resistant S. Aureus
MSAR Massachusetts System for Advance Registration
MSNO The Massachusetts School Nurse Organization
NEDRIX New England Disaster Recovery Information Exchange
NIMS National Incident Management System
NNDSS National Notifiable Disease Surveillance System
NVSL National Veterinary Services Laboratory
OSHA Occupational Health and Safety Administration
PCR Polymerase Chain Reaction
PHLIS Public Health Information System
PIO Public Information Officer
PORT Patient Outcomes Research Team
PPE Personal Protective Equipment
PSI Pneumonia PORT Severity Index
REVB Respiratory and Enteric Viruses Branch
RMCC Regional Medical Coordinating Center
RSV Respiratory Syncytial Virus
RTD-PCR Real Time Detection
RVRS Registry of Vital Records and Statistics
SARS Severe Acute Respiratory Syndrome
SEOC State Emergency Operations Center
SLI State Laboratory Institute
SPN Sentinel Provider Network
UASI Urban Area Security Initiative
UMass University of Massachusetts
U.S.C. United States Code
USDA United States Department of Agriculture
VAERS Vaccine Adverse Event Reporting System
VIS Vaccine Information Statement
VNA Visiting Nurse Associations
WHO World Health Organization
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