Lawyers Journal

Public health officials, attorneys outwit pestilence and plague

Avian flu, severe acute respiratory syndrome, the Ebola virus, Hurricane Katrina – pandemics and large scale emergencies of any kind – create a mental image of dead bodies in the streets, patients wasting away and wretched people calling for help. What no literary, movie or media images show are the quiet efforts of public health and municipal attorneys who struggle to maintain order in the midst of such chaos.

Among the legal issues that need to be addressed in a health emergency are personal liberties, liability for health agents or volunteers, emergency declaration powers, relaxed standards of care, credentialing and workers’ compensation determinations.

To enhance emergency preparedness, the Massachusetts Department of Public Health and others have been drafting legal documents to aid in the speedy response to any public health emergency. MDPH has also assisted in the creation of a training program called “Legal Nuts and Bolts of Isolation and Quarantine.” It was developed with the assistance of the attorney general’s office after the outbreak of SARS several years ago and has been presented numerous times in various parts of the state.

Designed primarily for local health officials, it provides legal documents that those officials may use for the voluntary and mandatory isolation of a sick patient. It also provides court pleadings and motions for city and town attorneys to use, should it become necessary to seek a court order to forcibly isolate an individual. The documents may be easily modified for other infectious diseases where isolation or quarantine is necessary.

“You want to respond appropriately in a disaster to protect people, but the more you know in advance how to do it in a legal, proper way, you at least reduce your risk of exposure,” said James P. Lampke, executive director of The Bar Association of Massachusetts Municipal Attorneys, part of a working group developing an operating guide of legal issues and authority issues for emergency situations.

According to Priscilla B. Fox, an attorney who works for MDPH, the stimulus to develop legal preparedness documents came about with the first outbreak of SARS. MDPH’s general counsel questioned what would happen if the state needed to mandate a quarantine. MDPH worked with the attorney general’s office to blend the legal and medical components that would allow for legal isolation and quarantines, if necessary.

In addition, the federal government realized after 9/11 that it needed to be more involved with state emergency preparedness. Federal grant money is tied to certain benchmarks, one of which is legal preparedness. For example, pre-credentialing of health care volunteers is now a federal mandate, with federal standards focused on making state networks interoperable. MDPH has launched the Massachusetts System for Advanced Registration, a statewide, secure database of pre-credentialed health care professionals who have agreed to volunteer their services in the event of a public health emergency.

Experience with large-scale disasters has consistently shown that an effective response requires that volunteers be pre-credentialed and deployed through a coordinated effort.

But, Fox pointed out, “It is tough now for private sector health care workers. It is up in the air whether they are protected from liability or have workers’ compensation if they go into another state. The idea at the federal level is to make that go more smoothly.”

Fox said reticence among health care workers to volunteer to cross state lines because of liability issues was definitely an issue after Hurricane Katrina.

Although there is a mutual aid compact that all 50 states are party to that addresses the exchange of emergency management assets, it only provides liability and workers’ compensation protections to state employees. Private sector workers had no protections when crossing state lines.

“Liability is a complicated issue because the extent of coverage depends on what type of provider you are,” said Fox. “Are you a volunteer or an employee? A doctor’s insurance policy may protect doctors wherever they go, but there are licensing issues. You have to get the state to waive licensing issues. In contrast, nurses are often employees of a hospital, so unless the hospital sends the nurse, if nurses go on their own, they will not be protected.”

Fox added that some health care volunteers might not be protected if they were working outside of their normal job responsibilities.

“Some would have Good Samaritan coverage, but in an unfolding pandemic, over weeks and months, Good Samaritan coverage is questionable. Some people would be reticent unless they knew they had some protections,” she said.

Another “deliverable” under a grant from the Center for Disease Control is “mutual aid,” whereby states facilitate the provision of emergency personnel and resources among differing local health authorities.

Towns are encouraged to vote at their town meetings to accept the concept, then sign a mutual aid agreement with adjoining towns. MDPH has developed a template agreement that also addresses liability and workers’ compensation.

“Towns should think about whether to use the template or alter it,” said Fox. “The template says liability and workers’ compensation issues remain with the ‘sending’ town. But if you have someone working and taking orders from the ‘receiving’ community, the sending community may not want to accept responsibility for that. Each town needs to talk to their own town attorney, to modify the agreement in whatever way they see meets their circumstances.”

“In times of emergency, you have to act quickly,” said Lampke. “Anything that can be prepared in advance to make a response quicker and more efficient is a benefit to the public. These forms are designed to give attorneys a working document in which they fill in the particulars so they can respond.”

“I think 9/11 and its effects, the SARS epidemic, avian flu, all these things have brought to light the need for more and constant training. Most boards of health were trained and competent to respond to health emergencies, fires and floods, typical things to respond to. But now, with different issues in society, there are more concerns to be prepared for and municipalities are preparing themselves for it,” said Lampke.

Comments by Fox are her own and do not represent the opinions of MDPH.

For a complete treatment of public health emergencies and legal preparedness, see Fox’s article in the MBA’s upcoming Section Review, volume 9, issue 2.

 

©2014 Massachusetts Bar Association