COVID-19 Emergency Legal Preparedness Primer As of September 17, - - PowerPoint PPT Presentation

COVID-19 Emergency Legal Preparedness Primer

As of September 17, 2020 Leila Barraza, JD, MPH Associate Professor, Mel and Enid Zuckerman College of Public Health Senior Consultant, Network for Public Health Law – Western Region

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About the Network

Work across the country to help public health officials, practitioners, and others committed to improving public health:

• navigate complex public health legal landscapes
• elevate innovative legal and policy solutions to population

health challenges

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Provides visionary leadership, strategic legal technical assistance, resources, and training across 5 essential public health law services Does not provide legal advice or representation.

How We Work

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Networkforphl.org

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❑ COVID-19 Epi Trends ❑ Emergency Legal Preparedness/ Response/Recovery Federal | State | Tribal | Local ❑ Public Health Emergency Powers ❑ Vaccine Allocation

Contents

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COVID-19 Confirmed Cases & Deaths

Source: https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html

Global Cases 29.9 million | Deaths: 942,259

U.S. Cases 6.61 million | Deaths: 196,104 U.S. Stats 23% all cases | 21% all deaths

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Emerging Epi & Medical Trends

Antibodies may be insufficient to ward off additional infections

Multiple potential vaccines are in Phase III clinical trials for safety & efficacy

Asymptomatic persons could account for 40-45% of infections spread

COVID-19 can cause milder

• utpatient illnesses among young

adults & others

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Emergency Declarations

Emergency or Disaster

Local

Public Health Emergency

Emergency or Disaster Public Health Emergency Stafford Act or National Emergencies Act

HHS Public Health Emergency WHO Public Health Emergency of Int’l Concern January 30, 2020 Emergency Declarations by Foreign Governments Ongoing State/Tribal Federal International

Public health authorities & powers vary depending on the type of emergency declared at every level of government

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Federal Emergencies/Invocations

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Jan. 31

National Emer- gencies Act

Feb. 4 Mar. 13 Mar. 20

HHS PREP Act Declar- ation

Mar. 13

Defense Production Act HHS Public Health Emergency Stafford Act Emergency

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HHS Public Health Emergency

• Jan. 31: HHS Sec. Alex Azar declares national

public health emergency effective as of Jan. 27

• Encourages interjurisdictional

coordination

• Allows waivers of specific

federal laws

• Authorizes real-time

countermeasures through emergency use authorizations

• Supports social distancing

measures

July 25: Sec. Alex Azar renews PHE declaration for 90 additional days.

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National Emergencies

• Mar. 13: President Trump declares dual emergencies

via the National Emergencies Act & §501(b) of the Stafford Act authorizing:

• Access to FEMA’s Disaster Relief Fund &

reimbursement for eligible emergency protective response measures.

• Waivers under SSA §1135 of select Medicare,

Medicaid, S-CHIP, HIPAA Privacy Rule requirements

• Additional types of federal assistance to states &

localities

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Select Congressional Bills

7/27 Senate proposes a $1 trillion relief bill providing for a new round of stimulus checks, expanded unemployment benefits & additional school funding.

5/15 House passes HEROES Act providing more economic stimulus & funds for contact tracing

6/24 Emergency House Protections & Relief Act introduced to prevent evictions, foreclosures & unsafe housing conditions resulting from COVID-19. 6/24 Senate introduces a bill to provide funding to address health workforce shortages & disparities highlighted by COVID-19. 6/22 House introduces a bill to require COVID- 19 drugs developed with federal support to be affordable & accessible.

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Major Enacted Federal Legislation

Families First CARES Act PPP & HEA

• Mar. 18: Families First

Coronavirus Response Act

• Private health plans

must provide $0 cost coverage for COVID- 19 tests

• Temporarily increases

federal portion of Medicaid

• Requires 14 days of

paid sick leave for certain employees

• Mar. 27: CARES Act
• Largest stimulus package

in history

• Requires insurance

providers to cover COVID-19 testing, vaccines & preventative services

• Protects volunteer HCWs

from liability

• Authorizes PHI

disclosure with written patient consent

• Apr. 24: Paycheck

Protection Program & Healthcare Enhancement Act

• Additional funding for

hospitals & HCPs

• Supports testing &

contact tracing efforts

• Requires governors to

submit 2020 testing plan

• HHS Secretary must

report on testing, cases & deaths

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Federal Agency Coordination

Right click on each image to link to COVID-19 sites

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Emergency Waivers

• Mar. 13: HHS Sec. Azar issues §1135 national waivers

(retroactive effect on March 1) re:

• EMTALA sanctions for patient relocation purposes
• HIPAA Privacy Rule regulations (for limited duration)
• In-state licensure requirements for health care workers
• Participation restrictions on Medicare, Medicaid & S-

CHIP

• Medicare Advantage payment limitations
• Stark Law sanctions

April 15: CMS updates waivers for health care providers re:

• Telemedicine provisions, facilitating Medicare services
• Patient rights surrounding access to medical records,

visitation & seclusion

• Physical environments to allow care in non-hospital

settings during surge

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COVID State & Select Tribal/Local Emergency Declarations

CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IA MO AR LA VA NC GA FL AL MS IL WV KY TN NY PA IN OH MI

DE 3/12 RI 3/9

ME AK – Alaska HI - Hawaii PR - (Puerto Rico) VI - (Virgin Islands)

Santa Clara Co. 2/10 San Diego Co. 2/19 San Fran City 2/25 Orange Co. 2/27 Solano Co. 2/27 2/29

• Co. of Hawai’i 2/28

3/1 3/9

Seattle-King Co. 2/29 Clackamas Co. 3/2 Bexar Co. 3/2 San Antonio 3/2 Sonoma Co. 3/2 Alameda Co. 2/19 Seattle 3/3 Placer Co. 3/3 Santa Rosa 3/2 Marin Co. 3/3 Redmond 3/3 Los Angeles Co. 3/4 Pasadena 3/4 Long Beach 3/4 Lummi Nation 3/3 Umatilla Reservation 3/4 Santa Cruz Co. 3/2 Los Angeles 3/4 3/4 Washington Co. 3/4 Snohomish Co. 3/4 Mendocino Co. 3/4 Emergency 3/4 Honolulu Co. 3/4 Maui, Kaua’i 3/4

Click on the date of each state to view declarations

Nevada Co. 3/4 Cowlitz Co. 3/4 Hoopa Valley Tribe 3/4 Sacramento Co. 3/4 Edmond 3/5

Emergency - 33 Disaster - 4 Public Health Emergency/Disaster - 9 County/City Emergency + Public Health Emergency - 4 Tribal

3/6 3/6 D.C. 3/11 Auburn 3/6 Des Moines 3/6 Mason Co. 3/6 3/6 Austin 3/6 3/6 Lexington (KY) 3/6 Eagle Co. (UT) 3/7 Travis Co. 3/6 Salt Lake Co. (UT) 3/6 Bellevue 3/3 3/7 3/8 Montgomery

• Co. (PA) 3/9

3/9 3/16

3/9 3/5

3/9 Cooke Co. (IL) 3/9 Delaware Co. (PA) 3/9 3/9 Kitsap Co. 3/9 Miami-Dade Co. 3/11 3/10 3/4 3/10 Whatcom Co. 3/10 3/10 Pierce Co. 3/6 Houston 3/11 Salt Lake City (UT) 3/11 Cincinnati (OH) 3/11 3/11 3/11 3/11 3/11 Public Health Disaster 3/9 Navajo Nation 3/11 Broward Co. 3/10 McHenry Co. (IL) 3/11 Northern Arapaho 3/11 Oglala Sioux Tribe 3/11 3/12 3/12 3/12 Kansas City (MO) 3/12 3/12 New York City 3/12 3/12 3/12 Emergency 3/12 3/10 3/12

3/10

Cuyahoga Co. (OH) 3/12 NH 3/13

VT 3/13

3/13 3/13 3/13 3/13 3/13 3/13 3/13 3/13 3/13 3/14 3/13 Emergency 3/13 3/14 3/15

• St. Paul (MN) 3/15

Boston (MA) 3/15 Milwaukee (WI) 3/13 Minneapolis (MN) 3/16 Phoenix (AZ) 3/13

Link here for updates re: jurisdictional requests for FEMA disaster relief

7/30

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Select State Emergency Powers Explicitly Invoked by Declarations

Emergency Powers

A K A Z A R C A C O C T D E F L H I I L I N I A K Y L A M E M D M A M I N J N M N Y N C O H O R P A R I T N V A U T W A W V W I

Altered Contracts | Procurements

■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■

Emergency Plans | ICS

■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■

Funding | Resource Allocation

■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■

Intrastate Coordination ■ ■ ■ ■ ■ ■

■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■

Isolation | Quarantine

■ ■ ■ ■ ■ ■ ■

Licensure Reciprocity

■ ■ ■ ■ ■ ■ ■

Price Controls re: Gouging

■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■

Surveillance | Reporting

■ ■ ■ ■

Testing | Screening | Treatment

■ ■ ■ ■ ■ ■ ■ ■ ■ ■

Travel Restrictions

■ ■ ■ ■ ■ ■ ■ ■

Waivers | Suspensions

■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■

Note: this table tracks select, express authorities referenced via state emergency declarations (link on each state acronym for access). Additional emergency powers may be authorized under state law through which the declarations are issued.

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15 12 5 2 16 1 49

5 10 15 20 25 30 35 40 45 50

Number of states issuing initial emergency declarations Number of states whose emergency declarations are projected to expire per month, absent further intervention

Emergency Declaration Initial Timing & Projected Expiration by Month (2020)

For more information

• n the current status
• f state/territorial

declarations, see the National Governors Association online resource.

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Legal Triage

From this . . .

Government Actors Partners Laws

Legal Triage: efforts of legal actors & others during declared emergencies to build a favorable legal environment by prioritizing issues & solutions facilitating legitimate public health responses

Legal Triage

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Emergency Preparedness & Response

Balancing Individual & Communal Interests

Privacy

Religious Freedoms Due Process Equal Protection Surveillance Treatment Isolation & Quarantine Curfews & Closures Individual Interests Communal Interests

Select Structural & Rights-based Constitutional Issues

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Separation of Powers Federalism Supremacy Preemption Freedom of Expression Freedom of Assembly Freedom of Religion Due Process Equal Protection Right to Travel Right to Privacy Right to Bear Arms Judicial Deference Cruel & Unusual Punishment Takings

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Current & Emerging Legal Issues

Topics

Crisis Standards

• f Care

Social Distancing Measures

Surveillance & Reporting

Privacy Liability Emergency Powers - Triage

Testing/ Screening/ Treatment/ Vaccination

• Contact tracing - efforts typically led by

public health agents to ascertain specific contacts of persons infected with COVID-19 & notify them of potential exposure & seek testing.

• States are hiring thousands for contact

tracing activities within health agencies

• Apple & Google released Bluetooth

technology on April 10 that sends automatic alerts to persons in range of COVID + persons, raising privacy concerns

• New bill signed into law in Kansas on June

8 restricts contact tracing to voluntary participants, provides strong confidentiality protections & extensively limits liability.

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Contact Tracing

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Data Sharing & Privacy

For additional expert analyses & guidance, contact Denise Chrysler, JD, or Sallie Milam, JD, CIPP/US/G, at the Network–MidStates Region

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Click on images to access

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CDC Moratorium on Evictions

• Sept. 2: CDC Director Dr. Robert Redfield signs

declaration temporarily halting evictions.

▪ Order bans evictions of residential renters earning less than $99k annually ($198k jointly) through December 2020. ▪ Qualifying renters must present written declaration testifying to their circumstances to landlords ▪ Landlords who defy the moratorium may face criminal penalties ▪ CDC cites its authority under the Public Health Service Act §361(42 U.S.C. 264) & an emergency action taken under 42 C.F.R. 70.2, “measures in the event of inadequate local control.” ▪ Questions arise related to CDC’s legal capacity to implement eviction limitations as a communicable disease control matter

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Crisis Standards of Care

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Substantial change in usual healthcare operations & level of care due to a pervasive or catastrophic disaster.

Select States’ CSC Plans

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CA 6/5 OR 3/23 WA 3/16 ID MT 2/24 TX SD WY NV 4/2 OK 4/7 KS 2/28 NE CO 4/26 NM AZ 4/1 UT 4/15 ND SC MN 5/4 WI IA MO 4/20 AR LA VA 3/18 NC GA FL 4/13 AL 2/28 MS IL 4/16 WV KY 3/21 TN 6/10 NY PA 4/10 IN OH 5/6 MI 3/27

DE RI 4/27

ME

AK – Alaska HI - Hawaii PR - (Puerto Rico) VI - (Virgin Islands)

VT

NH 4/17 MA 4/7

CSC plan

Click on the date* of each state to view CSC plans (where available)

DC 4/2

*The date provided indicates when a state’s CSC plan was published, not necessarily activated.

6/29 4/20 4/2 6 5/8

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CSC Legal Issues

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• Allocation
• Patient’s Rights
• Reimbursement
• Licensure
• Scope of Practice
• Civil Rights
• Duty to Care
• Uniformity
• Liability

Click on article image to access

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Umbrella of Liability Coverage

Mutual Aid Agreements

Good Samaritan Acts & Entity Liability Protection

Federal VPA State VPA EMAC Indemnification

Joint Commission Standards/ Policies & Practices

MOUs State EHPA

Despite risks, many legal liability protections apply in routine events & declared emergencies, especially concerning health care volunteers, workers & entities.

Federal PREP Act

Emergency Liability Protections - Health Practitioners & Entities

Federal CARES Act

Control modes of

transport- ation

Increase distance among workers Dismiss schools Restrict public gatherings Isolation & quarantine Evacuation Curfew Shelter-in- place/ Lockdown

Social Distancing Measures

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Safe, hygienic premises Monitoring & care Basic necessities Means of communication

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Least restrictive means Termination

Quarantine

Separation from others of people exposed to a contagious condition prior to knowing if they may be ill

• r contagious

Isolation

Separation from others of people who are known to be infected, or capable of infecting others, with a contagious condition

Quarantine & Isolation

Best Practices

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Schools & Universities Employers Places of Worship Events Sports

Closures & Cancellations

Festivals

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State Shelter-In-Place or Stay Home Orders

CA 3/19 OR 3/23 WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI 3/24 IA MO AR LA 3/22 VA NC GA 4/1 FL AL MS IL 3/21

WV 3/24

KY TN NY 3/22 PA IN 3/23 OH 3/23 MI 3/23 DE 3/22 NJ CT 3/20 RI 3/28 MA ME DC MD NH VT AK – Alaska HI – Hawaii 3/23 PR - (Puerto Rico) VI - (U.S. Virgin Islands)

Shelter-in-Place or Stay Home Orders – 43 states

Click on the date of each state to view the order

3/16 3/31 4/1 4/1 3/30 3/23 3/21 3/23 3/23 3/25 3/25 3/28 3/31 4/3 3/30 4/1

Shelter-in-Place or Stay Home Orders – 3 partial states

3/27 3/25 3/24

Note: data are based in substantial part on NYT (March 24, 2020)

3/25 3/24 4/1 4/3 4/6 3/31 3/25 3/26 3/26 3/28 3/30 3/30

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Curfews

• Mar. 29: Curfew order extends existing Stay at Home Order

for the entire Navajo Nation. All persons, subject to some exceptions, must stay home from 8:00 p.m. - 5:00 a.m., 7 days a week. May 5: Nearby Gallup, NM imposed strict confinement measures via use of “riot act” authorities allowed by NM Governor Michelle Lujan Grisham (ending on May 10).

• Aug. 19: Puerto Rico Governor Wanda Vazquez imposes

“Sunday” lockdown (in addition to weekly 10 pm – 5 am curfew across the territory).

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Re-opening Phases

Phase 1 Phase 2 Phase 3

• Vulnerable

individuals shelter-in-place

• Practice social

distancing & avoid socializing in groups >10

• Employers

should encourage telework & most businesses remain closed

• Resume

non- essential travel

• Schools,

gyms & bars may re-open

• Vulnerable

individuals may resume public interactions, with social distancing

• Large

venues may reopen

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Public v. Private Litigation

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Friends of Danny DeVito v. Wolf – On April 13, PA’s Supreme Court ruled that the temporary closure of non-essential businesses within the scope of the Governor’s emergency order did not constitute a taking. Tesla Inc. v. Alameda County - On May 9, Tesla sued Alameda County alleging it violated principles of due process & equal protection by disallowing Tesla to operate its manufacturing

• plant. The case was dismissed after Tesla was

allowed to do basic operations. Open Our Oregon v. Kate Brown - On May 5, 9 businesses sued Gov. Brown contending that closing their businesses violates due process, equal protection, and a taking. A U.S. district court judge denied the businesses’ motion for emergency injunction.

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Restaurants Light Retail Essential Business Bars Gyms

Re-opening Efforts

Salons & Barbers

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School Re-openings

• Aug. 13: In Florida, the state’s largest teachers’ union &
• thers filed a lawsuit to block Gov. Ron DeSantis’

emergency order that requires most school districts to

• pen schools 5 days a week by August’s end or face a

reduction of state funding.

• Aug. 19: Iowa’s State Education Association & Iowa City

Community School District sued Gov. Kim Reynolds & the state education department, arguing that state officials exceeded their authority by requiring in-person learning at least 50% of the time during any 2 week period.

• Aug. 20: In Oregon, a federal district judge denied an

emergency order sought by 3 Christian schools to reopen despite Gov. Kate Brown’s orders keeping K-12 schools closed. Multiple legal issues extending from school re-opening include: lawful authority to open (or not), liability claims (related to potential outbreaks), liability protections, discrimination, demands for tuition refunds, rights to education & teacher union disputes.

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University Re-openings

August 17: One week after re-opening, the University of North Carolina- Chapel Hill pivoted to online classes only following substantial COVID-19

• utbreaks on campus.

August 19: Six days after reopening in-person classes, the University of Alabama reported 566 positive COVID-19 cases among students & faculty. September 4: Florida State University reported that in a 7 day period ending Sept. 4, 21% of 3,429 COVID-19 tests administered came back positive. September 8: After the Labor day weekend’s spike in COVID-19 cases, Winona State University in Minnesota required the campus to quarantine for 2 weeks.

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COVID-19 Vaccination Allocation

Click on image to access

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National Academies Initial Vaccine Allocation Guidance

NASEM, Discussion Draft of the Preliminary Framework for Equitable Allocation of COVID-19 Vaccine, https://www.nap.edu/catalog/25914/discussion- draft-of-the-preliminary-framework-for-equitable-allocation-of-covid-19-vaccine.

• High-risk

workers in health care facilities

• First

responders

• People of all

ages with comorbid & underlying conditions at significantly higher risk

• Older adults

living in congregate settings

• Critical risk

workers

• Teachers &

school staff

• People of all

ages with comorbid & underlying conditions at moderately higher risk

• All other
• lder adults
• People in

homeless shelters & prisons

• Children
• Young adults
• Workers in

essential industries

• Everyone else

living in the US

Phase 1 Phase 2 Phase 3 Phase 4

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Vaccination Allocation The Johns Hopkins Center for Health Security Recommendations

• According to the Interim Framework for COVID-19

Vaccine Allocation and Distribution in the United States

Tier 1 Vaccinations should be given, in no specific

• rder, to those:
• 1) most essential in sustaining the COVID-19 response
• 2) maintaining core societal functions, and
• 3) those at the greatest risk of severe illness or death, and

their caregivers.

• Projected that there is only enough vaccines for 2/3 of

the Tier 1 groups because people over 65 with comorbidities constitutes 93 million persons in the US.

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Vaccination Allocation

CDC Guidance

• According to a preliminary plan, vaccines

would be offered to 1) vital medical and national security officials 2) other essential workers and those considered at high risk e.g., the elderly and those with underlying heath conditions.

• CDC now advices the first groups to receive

vaccinations should include: Healthcare professionals, essential workers, national security “populations” and long-term care facility residents.

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Vaccination Allocation

September 16, 2020: HHS and DoD released two documents outlining the Trump Administration’s strategy to deliver COVID-19 vaccines.

• Includes four key tasks:
• “Engage with state, tribal, territorial, and local partners, other

stakeholders, and the public to communicate public health information around the vaccine and promote vaccine confidence and uptake.

• Distribute vaccines immediately upon granting of Emergency Use

Authorization/ Biologics License Application, using a transparently developed, phased allocation methodology and CDC has made vaccine recommendations.

• Ensure safe administration of the vaccine and availability of

administration supplies.

• Monitor necessary data from the vaccination program through an

information technology (IT) system capable of supporting and tracking distribution, administration, and other necessary data.”

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Thank You Contributors!

Claudia Reeves, ASU JD Candidate James Hodge, Jr., JD, LLM, Director- Western Region, Network for Public Health Law Erica White, ASU JD Candidate Emily Carey, ASU JD Candidate

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