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Social Distancing Law Project Template Article March 2010

Social Distancing Law Project Template Article March 2010

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CONCEPTS
in Disaster Medicine 
The Social Distancing Law Project Template: A Methodfor Jurisdictions to Assess Understanding of RelevantLegal Authorities
Karen Leeb, JD, MLS; Denise Chrysler, JD; Richard A. Goodman, MD, JD, MPH
ABSTRACT
Methods:
The Centers for Disease Control and Prevention and the Association of State and Territorial Health Of-ficials selected 17 state and large local jurisdictions on the basis of their proximity to federal quarantine sta-tions and collaborated with their state health department legal counsel to conduct formulaic self-assessments of social distancing legal authorities, create tables of authority, and test and report on the laws’sufficiency (ie, scope and breadth). Select jurisdictions also held tabletop exercises to test public health andlaw enforcement officials’ understanding and implementation of pertinent laws. This report presents findingsfor Michigan, which completed the legal assessment and tabletop exercise and made several recommenda-tions for change as a result.
Results:
Officials in Michigan concluded that there are sufficient existing laws to support social distancing mea-sures but that a spectrum of questions remained regarding implementation of these legal authorities. Basedon the findings of this assessment, Michigan initiated actions to address areas for improvement.
Conclusions:
Theresultsofthisprojecthighlightedthevalueofintegrallyinvolvingthestatehealthdepartment’slegalcounsel—thosemostfamiliarwithandwhoadviseonagivenstate’spublichealthlaws—intheperiodicidentification, assessment, and testing of the state’s legal authorities for social distancing and other mea-sures used in response to many public health emergencies.(
Disaster Med Public Health Preparedness.
2010;4:74-80)
Key Words:
social distancing law project, template, self-assessment, legal authorities, influenza, pandemic
R
ecent events have validated predictions that therecurrence of an influenza pandemic was not anissueof 
if 
,butof 
when
.Nearly100yearssincethedeadly 1918 influenza pandemic, health officials con-tinuetomonitornewandreemerginginfections,suchasinfluenzaA(H5N1),forgeneticandantigenicvariationand for indications of more efficient human-to-humanspread. Even if influenza A (H5N1) does not ultimatelytransformintoapandemic-causingvirus,theriskofapan-demichasbeenconsideredinevitableand,withthewide-spread emergence of the novel influenza A (H1N1) vi-rusin2009,nowrealized.Respondingtosucheventscouldrequire a spectrum of pharmaceutical and nonpharma-ceutical interventions, including social distancing mea-suressuchasquarantine,isolation,closingbusinesses,andcanceling public events. Such law-based and legally en-forcedcommunitywideinfectioncontrolmeasures,how-ever,havenotbeenwidelyusedintheUnitedStatessincethefirsthalfofthe20thCentury.
1
Thecontinuedthreatof a widespread influenza pandemic, including influenzaA(H5N1)andinfluenzaA(H1N1),hasnecessitatedtak-ing a fresh look at these measures and their legal bases.
2
The federal and state governments have shared inter-ests in ensuring that public health professionals arecompetentintheuseoflawtousesocialdistancingmea-sures.Twostrategicallysignificantdocuments—theNa-tionalStrategyforPandemicInfluenza
3
(datedNovem-ber2005)andthe2006NationalStrategyforPandemicInfluenza Implementation Plan
4
(dated May 2006) de-veloped by the US Homeland Security Council— em-phasizedtheimportantrolethatsocialdistancingmea-sures would have in helping to minimize the impact of pandemicinfluenza.Thedocumentsalsohighlightedtheneed for governments at all levels to assess their legalcapacity to flexibly respond to shifting circumstancesduring a pandemic.
4
In particular, the Homeland Se-curityCounciltaskedtheUSDepartmentofHealthandHuman Services with providing guidance to all levelsof government “. . . on the range of options for infec-tioncontrolandcontainment,includingthosecircum-stanceswheresocialdistancingmeasures,limitationsongatherings, or quarantine authority may be an appro-priate public health intervention.”
4
Despite the need for states to thoroughly and system-atically review and test their relevant legal authorities,no method existed—only a tool for assessing legisla-tive provisions more broadly, the Model State Emer-gencyHealthPowersAct.
5
Toaddressthemandatesand
74
Disaster Medicine and Public Health Preparedness
VOL. 4/NO. 1(Reprinted)
©2010 American Medical Association. All rights reserved.
 
needs,theCentersforDiseaseControlandPrevention(CDC)createdamethodforstatesandotherjurisdictionstoassesstheirunderstanding of laws authorizing the use of social distancingmeasures in response to a pandemic of influenza or other com-municable respiratory disease. The CDC’s Public Health LawProgram collaborated with the Association of State and Ter-ritorial Health Officials (ASTHO) to implement the methodin 17 jurisdictions, chosen in part based on their proximity toCDCquarantinestations.Thismethod,theSocialDistancingLaw Project (SDLP), was designed to help jurisdictions use aformulaicapproachtoassesstheirofficials’understandingoflawauthorizingsocialdistancingmeasures;thetemplateforthisas-sessment comprises a set of questions for conducting a struc-turalreviewofrelevantlaw,creatingatableofauthorities,andimplementingahypotheticalscenarioasatabletopexercisefortesting officials’ understanding of pertinent laws. The militaryhas used simulation games and exercises to improve its pre-paredness levels for centuries, a tool also adopted by the fed-eral government in recent years to evaluate participants’ un-derstandingoftheirrolesandresponsibilitiesthroughtabletopexercises in preparedness.
6,7
Other studies have illustrated thebeneficial impact of tabletop exercises to improve partici-pants’ competencies for applying legal authorities for publichealth emergencies.
8
In this article, we summarize the SDLP method and its imple-mentation by 17 selected jurisdictions, and we report the ex-perienceof1participatingjurisdiction(Michigan)thatagreedtoallowustoshareitsmaterialsasacaseexampleforotherstatesand jurisdictions that may elect to use SDLP as a tool for ad-dressing their legal preparedness for pandemic influenza. Wealso describe the SDLP template, the practical tool developedfor the purpose of assisting other jurisdictions. The SDLP wasdesigned to assist jurisdictions in addressing the 4 core ele-ments of public health emergency legal preparedness as out-lined in the National Action Agenda for Public Health LegalPreparedness
9
:lawsandauthoritiesessentialforimplementingsocialdistancingmeasures;competenciestoapplysuchauthori-ties;cross-jurisdictionalandcross-sectorcoordination;andin-formation/best practices,
2
as integral facets of pandemic pre-paredness.
METHODS
The CDC identified the 17 participating jurisdictions by se-lecting from among states or territories that host or border ju-risdictionswithCDCquarantinestations.Generally,CDCquar-antinestationsarechargedwithrespondingtoillnessesordeathsonairplanesorotherconveyancesatpointsofentryandwork-ing with federal, state, and local partners on preparedness ac-tivities related to quarantine and isolation. This selection cri-terion was important because it encompassed the roles of quarantinestationsinpandemics,multijurisdictionalissues,andthe likelihood for strengthening interactions and coordina-tion among the people involved in such a response. Practicalconstraintslimitedtheimplementationoftheproject’smethodtosomejurisdictionshavingorborderingstateswithCDCquar-antine stations (Alaska, California, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Illinois, Maryland, Mas-sachusetts,Michigan,NewJersey,NewYorkState,PuertoRico,Texas, Virginia, and Washington).An important feature of this project was to engage key people(thestatehealthofficial,statehealthagencylegalcounsel,andpublic health preparedness staff) to assess their jurisdictions’applicablelaws.Thisapproachmaximizedtheidentificationandinterpretation of these laws by the officials who bear primaryresponsibilitiesfortheseandotherrelatedfunctions(eg,imple-mentation and enforcement within their respective jurisdic-tions).Thisapproachalsohelpeduscomprehensivelyassessallrelevant legal authorities authorizing the use of social distanc-ingmeasures,includingtheauthoritiesthatarenottraditionalpublichealthlaws,suchascurfewauthorities,closurelaw,andcertain aspects of takings (of private property).The CDC specified 2 basic components for this project: First,each participating jurisdiction was to conduct a “legal assess-ment” of relevant, applicable laws. Second, a selected subset(n=11) of the jurisdictions would follow the legal assessmentbyconveningalegalconsultationmeeting.Thepurposeofthelegalassessmentwastocreateaconsistentapproachforallpar-ticipating jurisdictions to identify and review their legal au-thorities to implement social distancing measures and to issueblanketprescriptionsintheeventofapandemic,andbeginiden-tifyinganygapsinoruncertaintiesregardingthesufficiency(ie,scope and breadth) of those authorities (Table 1).Of the 17 jurisdictions, 11 also conducted legal consultationmeetings (LCMs), partial- to full-day programs that combinedpresentationofthelegalassessmentresultswithatabletopsce-nario designed to assist in assessing understanding and deter-
TABLE 1
Categories of Inquiry Included in the LegalAssessment Instrument and the ConsiderationsThat Applied to All Categories
Categories
Restrictionsonthemovementofpersons(eg;groupandareaquarantine)Curfew authorityInterjurisdictional cooperation and coordination for restricting themovement of personsClosure of public placesMass prophylaxis readiness (eg, blanket prescription orders,distribution of countermeasures)Other issues and concerns particular to the jurisdiction
Considerations for all categories
Questions considered during and absent declared emergenciesEstablishing and ordering measuresEnforcement and penaltiesDuration of measures: ending and renewingDue process and potential liabilitiesPotential legal barriersPotential gaps or uncertainties
Social Distancing LawDisaster Medicine and Public Health Preparedness
75(Reprinted)
©2010 American Medical Association. All rights reserved.
 
mining the sufficiency of the jurisdiction’s legal authority forsocial distancing measures. (ASTHO was able to provide sti-pends to the participating states to help cover costs, withoutwhich the work would likely not have been completed on thisscaleandwithinthegiventimeframe.)TheCDCandASTHOrecommendedthatinvitedparticipantsrepresentthesectorsthatwould be involved in an actual event, including but not lim-ited to state and local health officials and their counsel; gov-ernors and attorneys general and their counsel; state legisla-tors,theirstaff,andcounsel;otherrelevantstateagencies(lawenforcement, emergency response, homeland security, educa-tion, and transportation); state and local boards of health andeducation; the judiciary; tribal leaders and health officials andtheircounsel;CDCquarantinestationrepresentativesandotherappropriatefederalofficials(eg,attorneysfromtheUSDepart-ment of Health and Human Services); representatives of busi-nessandotherkeyorganizations(healthcare,hospitals,cham-bers of commerce); and members of the private bar (attorneysfor health care entities and other private attorneys).The CDC and ASTHO developed and provided participatingjurisdictions with a template for the legal assessment ques-tions to address the Homeland Security Council action items.The CDC also developed a hypothetical scenario that juris-dictionscouldadaptforuseintheLCMexercises.
11
TheASTHOincorporated the legal assessment questions and a hypotheti-cal scenario into a guidance document to help the participat-ingjurisdictionswithallaspectsoftheproject,frombuildingaproject organizing team to developing after-action reports. Toencourageparticipationintheproject,theASTHOandCDCagreednottosharejurisdictions’reportsandresultswithouttheirconsent. At least 3 states have made some of their project ma-terialsandreportspubliclyavailable,includingMichigan,whichisfeaturedhereasacasestudy.(GeorgiaandVirginiahavealsoshared materials publicly.)
RESULTSCase Example: Social Distancing Law Project Resultsfor Michigan
Officials in Michigan used the guidance from the CDC andASTHO to conduct a legal assessment and an LCM. In sum-mer 2007, the Michigan Department of Community Health(MDCH) established a 12-member project team to plan andimplementtheSDLP.TeammembersrepresentedkeyMDCHfunctional and program areas (eg, epidemiology, surveillance,emergencypreparedness,medical,andlegal),theMichiganDe-partment of Attorney General, and the Officer in Charge of theCDCQuarantineStationattheDetroitMetropolitanWayneCounty Airport. The MDCH Legal Affairs Director, an attor-ney, served as project manager.
Legal Assessment 
In addition to the attorneys, other project team members as-sisted in conducting research for, or prepared the legal assess-ment, or both, including emergency management staff, com-municable disease staff, and a physician. Work was distributedamongcommitteememberswhoidentifiedinformationandpre-paredresponsestoquestionsaboutlegalpowersduringandab-sentadeclaredemergency,relevantportionsofthestate’sAll-HazardsResponsePlan,
12
Michigan’spandemicinfluenzaplan,
13
mutual aid agreements to facilitate multijurisdictional re-sponse,distributionoftheStrategicNationalStockpile,
14
massimmunization, and antiviral administration.The Michigan SDLP team reviewed numerous laws, responseplans,andagreementsinplacetosupporteffectiveresponsetopandemic influenza, including pharmaceutical, infection con-trol, and social distancing measures. The MDCH deemed theassessmentvaluableinidentifyingareasoflawthatrequirefur-ther research and deliberation. Some issues were resolved byfurther research and improved understanding of legal prin-ciples. For example, as a result of the assessment, the Michi-gan team conducted further research and analysis to satisfy it-self that the state and local health officers have authority totake necessary actions to protect the public’s health on uni-versity campuses.The exercise also led to the development of procedures, par-ticularly for social distancing measures that implicate consti-tutional rights of due process, freedom of religion, and free-domofspeechandassembly.Inthisregard,theMichiganPublicHealth Code does not specify procedures to provide due pro-cess when the state health director issues an emergency orderthat deprives individuals of their constitutional rights. Michi-gan has drafted potential rules to provide due process, whichhavebeensubmittedforreviewbytheMichiganPandemicIn-fluenza Coordinating Committee’s Legal/Public Safety Sub-committee. Compensation for private property taken for thecommongoodalsosurfacedasanissueneedingfurtherreview.Theassessmenthighlightedtheimportanceofpolicyandethi-calconsiderations,aswellaslegalissues,inplanningandimple-mentingresponsemeasurestopandemicinfluenza.TheMichi-gan team cited potential examples such as ordering businessesto close with resulting income losses to the business owners,and the loss of income for a single mother who has been di-rectedintohomequarantinebecauseshewasexposedtoacutelyill passengers while on a commercial airliner, but she has nosick leave.The assessment also helped the MDCH and others in identi-fyingpotentialgapsinresponseplansinvolvingparticularlaw-based measures (eg, mass transit limitations and curfew) andsomelogisticalchallenges,includingthoseassociatedwithen-forcement of measures. Some areas that were deemed in needoffurtherreviewwithothergovernmentpartnersincludedimple-mentation of social distancing measures involving Michigan’spublic universities, which, under the state’s constitution, are a“branch” of state government, autonomous within their ownspheres of authority
15,16
; on federal lands; and on Indian land.The written assessment provided a record of legal issues thathave been and still need to be addressed, and represents a ref-
Social Distancing Law
76
Disaster Medicine and Public Health Preparedness
VOL. 4/NO. 1(Reprinted)
©2010 American Medical Association. All rights reserved.

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