Washington Watch

The Model State Emergency Health Powers Act-Will It Become Law?

by James L. Thorne, Esq.

INTRODUCTION
The terrorist attacks on September 11, 2001 and the following anthrax attacks have produced a flurry of legislative activity addressing health care emergencies. As of this writing, a bill has been introduced in the U.S. Senate and a bill is likely to be introduced the third week of November in the House of Representatives.

In addition, the Bush Administration is actively proposing its own approach to dealing with health care issues caused by acts of terrorism. Following the September, 2001 terrorist attacks (and during the early stages of the anthrax attacks), Tommy Thompson, Secretary of HHS, requested the Center for Law and the Public's Health to draft a model law to address health care needs during a national emergency. According to Secretary Thompson, "We need not only a strong health infrastructure and a full stockpile of medical resources, but also the legal and emergency tools to help our citizens quickly."

Answering Secretary Thompson's request, the Center for Law and the Public's Health, a joint program at Georgetown and Johns Hopkins Universities, released its model state law on October 23, 2001. The model state law, entitled "The Model State Emergency Health Powers Act," was prepared in collaboration with the: National Governors Association, National Conference of State Legislatures, Association of State and Territorial Health Officials, National Association of City and County Health Officers and National Association of Attorneys General. It is a comprehensive, forty-page model law that has the backing of the Bush Administration and it has been distributed to all states. The model law is based on one of our basic constitutional law principles: the power to protect the public's health and safety -the "police power" is vested in the states not the federal government.

The balance of this article is an attempt to provide AAEM members with a basic understanding of the model act. It is under review in all states. It has already been introduced as legislation in a few states and parts of it are likely to become law in the states where you live and practice medicine.

ARTICLE II. MEASURES TO DETECT AND TRACK POTENTIAL AND EXISTING PUBLIC HEALTH EMERGENCIES
Article II (the model state act's first "substance" section), places a duty to act on health care providers such as physicians. Under Article II, providers shall report all cases of persons who harbor any illness or health condition that may be caused by bioterrorism, epidemic or pandemic disease. Further, providers such as physicians shall report such illnesses to the state public health authority within twenty- four hours. Under the model act, the required report is to contain the name and address of the provider as well as the name, address, date of birth, sex, race, and current address of the patient.

Article II also requires that the state public health authority shall ascertain the existence of cases of illness caused by bioterrorism, epidemic or pandemic disease and shall identify all individuals thought to have been exposed to such an illness. Further, the public health authority shall close, evacuate or decontaminate any facility or destroy any material the authority suspects may endanger the public health.

Last, Article II requires that whenever the public safety authority or the public health authority learns of a reportable illness or health condition, it shall immediately notify the other and share information on the illnesses. In an attempt to "balance" the common good with individual civil liberties, Article II provides that the sharing of information ".shall be restricted to information necessary for the treatment, control, investigation, and prevention of a public health emergency."

ARTICLE III. DECLARING STATE OF PUBLIC HEALTH EMERGENCY
In Article III, the model act establishes the standards for declaring a state of public health emergency. Under the act, the state Governor is given the authority to declare a public health emergency upon a finding that an occurrence or imminent threat of an illness or health condition, caused by bioterrorism, epidemic or pandemic disease poses a substantial risk of a significant number human fatalities or incidents of permanent or long-term disability. The Governor may consult with the public health authority but he/she is not required to do so under the act.

Upon a Governor's declaration of a state of public health emergency, a state's disaster response and recovery plan then becomes activated and, in essence, authorizes the deployment and use of any forces to which the plan applies. This includes the use or distribution of any supplies, equipment or materials and facilities assembled, stockpiled or arranged under the act. It is important to remember that during a declared state of public health emergency, the Governor may: Suspend any state regulations (if strict compliance with the regulations or procedures would prevent, hinder or delay necessary action), utilize all available state resources, transfer all state personnel, mobilize the state militia and provide or seek aid from other states.

If the model act becomes law in any state then, under a declared state public health emergency, the state public health authority shall coordinate all matters pertaining to the public health response of the state. The public health authority will coordinate all state responses, plan and execute preparedness responses, coordinate with other states and with the federal government. Under the act, special identification will be issued to public health personnel who must wear it in plain view. As with all sections of the model act, the public health authority may request assistance in enforcing its orders from the state militia.

Importantly, a declared state of public health emergency shall terminate when the state Governor issues an executive order finding that the occurrence no longer poses a substantial risk. In addition, a state of public health emergency automatically terminates thirty days after its declaration unless renewed by the Governor. Further, by a two-thirds vote of both state legislative chambers, the State legislature may terminate a state of public health emergency after sixty days from its original declaration. Under the model act, a termination by the State legislature shall override any renewal by the Governor.

ARTICLE IV. SPECIAL POWERS DURING STATE OF PUBLIC HEALTH EMERGENCY: CONTROL OF PROPERTY
The model state act gives the state public health authority broad powers over the control of property if a state of public health emergency exists. For example, the state public health authority is given the power to close, evacuate or decontaminate any facility or materials if there is reasonable cause to believe that it may endanger the public health. Further, the public health authority is given the power to procure, by condemnation or otherwise, any facilities deemed reasonable and necessary for an emergency response, with the right to take immediate possession thereof. Of specific importance to AAEM members and other medical professionals, the public health authority is given the power to compel a health care facility to provide services or the use of its facility if such services or use are reasonable and necessary for emergency response. The public health authority may compel the safe disposal of infectious waste, it may compel the safe disposal of corpses and it may control, restrict and regulate available health care supplies by rationing and quotas as may be reasonable and necessary for emergency response. Broad powers indeed and sure to cause differences of opinion as to what is reasonable and necessary.

Importantly, the model act does require a state to pay just compensation to the owner of any facilities or materials that are lawfully taken or appropriated. Yet, compensation will not be provided for facilities or materials that are closed, evacuated, decontaminated, or destroyed when there is reasonable cause to believe that they may endanger the public health. However, "to the extent practicable," and prior to the destruction of any property, the public health authority shall institute appropriate civil proceedings. It must destroy property as the involved court directs.

ARTICLE V. SPECIAL POWERS DURING STATE OF PUBLIC HEALTH EMERGENCY: CONTROL OF PERSONS
The model act also gives the state public health authority broad powers over the control of people during a state of public health emergency. The public authority may compel a person to submit to a physical exam or testing in order to prevent the transmission of infectious disease. In addition, the public health authority may require any physician or other health care provider to perform the medical examination or testing. Any person refusing to submit to the medical examination or testing shall be liable for a misdemeanor. And, any physician or health care provider who refuses to perform the medical examination or test shall also be liable for a misdemeanor.

Under Article V. of the model act, a person may be isolated or quarantined. Under the act, he/she is provided a form of "due process" in that the public health authority shall first obtain a written, ex parte order from a state court authorizing such action. However, the public health authority may isolate or quarantine a person without first obtaining a written court order, if any delay in the isolation or quarantine would pose an immediate threat to the public health. The model act also provides that a quarantined or isolated person has the right to a court hearing in order to contest a quarantine or isolation order. Under the act, related judicial decisions shall be based on clear and convincing evidence and a written record of the disposition of the case shall be made and retained.

The model act, if adopted by a state, also places additional duties on affected AAEM members with regard to the collection of laboratory specimens, the performance of tests and access to patient records. In this respect, any person authorized to collect specimens or perform tests shall use chain of custody procedures to ensure the proper record keeping, handling and labeling of specimens to be tested. Further the involved physician or other health care provider must recognize that any specimen collected or test performed during a state of public health emergency may be evidence in a criminal investigation. Therefore, any facility authorized to collect specimens or perform tests shall provide such support as is reasonable and necessary to aid in a relevant criminal investigation.

One subsection of Article V. entitled "Licensing and appointment of health personnel," may prove troublesome and, therefore, in need of change. Under this section of the model act, the state public health authority may appoint and prescribe the duties of out-of-state emergency health care providers. In making such appointments, the public health authority may waive any or all licensing requirements, permits or fees required by the state code and applicable orders, rules or regulations for these out-of-state health care providers. Further, out-of-state emergency health care providers shall not be held liable for any civil damages as a result of his/her medical care or treatment unless such damages occur under circumstances "demonstrating a reckless disregard for the consequences so as to affect the life or health of the patient." How would this work? Although a public health care emergency may require and encourage out-of-state health care providers, it seems that this section of the model act may create two standards for health care provider licensing and liability-one for in-state health care providers and lesser licensing and liability standards for out-of-state health care providers.

Article V. of the model act also provides that a state medical examiner or coroner may appoint and prescribe the duties of emergency assistant medical examiners or coroners as may be required. As with out-of-state medical providers, the appointment of emergency assistant medical examiners or coroners may be for a limited or unlimited time, but shall not exceed the termination of the state of public health emergency. Also like the appointment of out-of-state medical providers, a state medical examiner or coroner may waive any or all state licensing requirements, permits, or required fees. Under Article V., any appointed emergency assistant medical examiner or coroner, acting within the scope of his/her prescribed duties and acting without malice, shall be immune from civil liability in the performance of such duties.

ARTICLE VI. PUBLIC INFORMATION REGARDING PUBLIC HEALTH EMERGENCY
Article VI. does not place any additional duties on health care providers but it does require the state public health authority to inform the people of a state when a state of public emergency has been declared or terminated. The model act uses broad and unspecified language as to "how" and "when" this information shall be provided. Basically, information about a state of public emergency shall be provided by "all available and reasonable means." In addition, if the public health authority has reason to believe that there are people in the state who lack sufficient skills in English to understand the information, the authority "shall make reasonable efforts to provide the information in the primary languages of those people as well as in English." Further, during and after a state of public health emergency, the public health authority shall provide information about and referrals to mental health support personnel to address psychological responses to the emergency.

ARTICLE VII. PLANNING FOR PUBLIC HEALTH EMERGENCY
Article VII. of the model act sets most of the state action in motion. Under Section VII., the state governor is given the power to appoint a Public Health Emergency Planning Commission. The Commission is to consist of the State directors (or their designees) of state agencies the governor deems relevant to public health emergency preparedness. Thus, under the model act, the appointment of physicians or other medical professionals is not required. Perhaps this should be changed to require the appointment of physicians or others who have the expertise to contribute to a better working state plan.

Once appointed, the Commission must deliver a plan, within six months, for responding to a public health emergency. The plan must include seventeen different provisions for, among others, notification, coordination, procurement and storage of medical supplies, the identification of health care providers, treatment-all of the prior duties and responsibilities established in the act for addressing health conditions caused by bioterrorism, epidemic or pandemic disease. Article VII. also places an ongoing duty on the Commission to review its plan every two years.

ARTICLE VIII. MISCELLANEOUS
Article VIII., the last section of the model act, provides that the state public health authority is authorized to promulgate and implement such rules and regulations as are reasonable and necessary to implement the act. Further, the public health authority is given the power to enforce the provisions of the act through the imposition of fines and penalties, the issuance of orders, and such other remedies as are provided by (state) law.

Article VIII. also provides that the state governor may transfer from the state treasury any available funds to meet the declared public health emergency. The transfer of state treasury funds to meet a public health emergency may be made only when certain conditions exist: no appropriation or other authorization is available, an appropriation is insufficient, federal monies available for such an emergency require the use of state or other public monies. Under the act, such transferred funds must be paid back to the state treasury when monies become available by legislative appropriation or otherwise. State expenses during a declared public health emergency will, in turn, be paid only if: approved by the state governor, the aggregate amount of all expenses does not exceed a (specified state amount) for any fiscal year, and the monies authorized in prior fiscal years may be used in subsequent fiscal years but only for a public health emergency.

Under Article VIII., the model act provides that neither the state nor its political subdivisions, except in cases of gross negligence or willful misconduct, is liable for the death or injury to persons or damage to property as a result of complying with the act. Further, private persons, corporations or their employees shall not be civilly liable for causing death or injury to any person or property except in the event of gross negligence or willful misconduct.

Last, Article VIII, provides that compensation for property shall be made only if private property is lawfully taken or appropriated during a state of public health emergency declared by the state governor.

Further, any action against a state concerning the payment of compensation must be brought in the courts of the involved state. The amount of the compensation shall be calculated in the same manner as compensation due for the taking of property pursuant to non-emergency eminent domain procedures. The exception is for the amount of compensation calculated for a taking of health care supplies. The amount of compensation for appropriated health care supplies "shall be limited to the costs incurred to produce the item."

CONCLUSION
Will "The Model State Emergency Health Powers Act" become law? In the opinion of this writer, it will become law, as is, in a few states. However, as with most "models" it will be considered as the initial draft of a plan for states. It will be changed to fit the specific needs, conditions and capabilities of the states. Yet, we need to remember that the model act was written with the collaboration of five important state organizations. Further, it is considered to be President Bush's preferred approach. It is, therefore, doubtful that the model act will languish. AAEM members should remember that whatever becomes the final state emergency health plan for the state in which you practice, you will see many of these provisions again and they will alter your provision of emergency care during times of public health emergencies.

James L. Thorne is Washington government relations counsel for AAEM. He can be reached at (202) 548-3218 or jnlt@erols.com