An Analysis of State Public Health Emergency Declarations

Abstract

Disaster responses often involve coordination among multiple levels of government and public and private sector collaboration. When emergencies raise health concerns, governments must include public health and health care systems in their response.

A state government’s declaration of “public health emergency” can provide that state’s health sector with flexibility and guidance about response parameters. Although events including Hurricanes Katrina and Sandy and the H1N1 influenza outbreak provided opportunities for states to deploy their public health emergency powers, little has been reported about how states have used their authority to declare a public health emergency.

I present a systematic identification and analysis of states’ public health emergency declarations, examine why these declarations were issued, and discuss their potential value.

Disasters and emergencies raise unique challenges for governments, in large part because of their unpredictability and potential for vast destruction. When a disaster occurs, the response often involves coordination among governments at the local, state, and federal levels, as well as collaboration between the public and private sectors.¹ This collaboration can be facilitated or impeded by laws at all levels of government.²

Every state has the ability to issue a declaration of “emergency” or “disaster” to facilitate a response by, for example, temporarily suspending certain laws and implementing interstate emergency agreements. This type of multifaceted response arose after Hurricane Katrina because the Emergency Management Assistance Compact was invoked by affected states,³ and Louisiana’s governor temporarily suspended deadlines for in-state legal proceedings.⁴

When emergencies raise health concerns for affected populations, such as exposure to a novel infectious disease, governments must actively include both public health and health care systems in their response. Without advance planning, medical supplies may prove insufficient, and a surge in demand for prevention and treatment services may overwhelm health care professionals.⁵

A governmental declaration of “public health emergency” can provide a state’s health sector with flexibility and guidance about the parameters of a response. State laws specify how this declaration may be made, typically through a gubernatorial executive order or proclamation. The declaration may enhance public health aspects of a response by, for example, waiving state licensure laws to temporarily allow out-of-state health care professionals to practice in an affected state and enabling the rapid distribution of medical supplies such as vaccines.⁶

Although state laws typically allow for rapid responses to varied emergencies, the concept of a distinct public health emergency declaration gained traction shortly after the terrorist attacks of September 11, 2001, and the subsequent mailing of anthrax-tainted letters to members of Congress and others. Familiarity with this concept was driven, in part, by the development of the Model State Emergency Health Powers Act, an effort to provide states with guidance regarding laws to prepare for and respond to public health emergencies.⁷ This increased awareness, along with other initiatives to update states’ public health laws,⁸ led some states to include a declaration of “public health emergency” with accompanying public health emergency powers in their laws.⁹

In the decade since these events, numerous emergencies with public health impacts have occurred, including Hurricanes Katrina (2005) and Sandy (2012) and the H1N1 influenza outbreak (2009).¹⁰ These events presented states with opportunities to deploy their public health emergency powers, yet little has been reported about how states have actually used their authority to declare a public health emergency.

I present a systematic identification and analysis of public health emergency declarations in states whose laws contain the explicit authority to issue such a declaration. I examine why states have chosen to declare public health emergencies and the legal means by which they have done so. Additionally, I consider how states’ public health emergency declarations differ from their general emergency declarations, and discuss the potential value of state-level public health emergency declarations.

METHODS

I systematically identified and reviewed declarations of public health emergency through July 31, 2013, for the 24 states whose laws contain the explicit authority to declare a public health emergency.¹¹ In accordance with each state’s public health emergency law, declarations included gubernatorial executive orders and proclamations or declarations made by a state’s highest ranking health official.

To identify public health emergency declarations within the 24 states of interest, I used a modified version of a legal mapping approach.¹² I searched the Web sites for each governor’s office and state health department, as well as each official state Web site (e.g., http://www.alabama.gov), using a standardized set of keywords, developed iteratively, including singular and plural variations of “health,” “emergency,” and “disaster” and including the citation for each state’s law allowing the government to declare a public health emergency. In addition, for the Web sites of each governor’s office and state health department, I reviewed press releases to identify declarations that may not have been captured by the Web site searches. For the Web sites of each governor’s office, I similarly reviewed executive orders and proclamations. I also used the keywords to search the 25 US daily newspapers with the highest circulation, as well as the highest circulation newspaper in each state whose law contains the explicit authority to declare a public health emergency, to identify reports of state-level public health emergency declarations.¹³

I included declarations if, in accordance with a state’s public health emergency law, their text used “health,” “public health,” or a similar phrase to describe the emergency (e.g., state of public health emergency, public health disaster). Renewals or amendments to an ongoing public health emergency declaration were treated as components of a single declaration.

For quality control, I compared the identified public health emergency declarations with other publicly available materials (e.g., information gathered by the Association of State and Territorial Health Officers).¹⁴ Inconsistencies were resolved by consulting the text of the declarations.

I abstracted data from the public health emergency declarations using an electronic data collection form. The form contained categories for the nature of the emergency, date of declaration, duration of declaration, official who issued the declaration, and any legal authority cited in the declaration. The form contained open-text sections to record reasons for the issuance of the declaration and directives contained within the declaration. For the text that was abstracted, I conducted a qualitative analysis to identify themes and patterns within the data. Themes were identified through an iterative process in which data collection forms were annotated and repeatedly compared. The forms were stored electronically, and summary tables were created in Microsoft Excel (Microsoft Corp., Redmond, CA).

RESULTS

I identified 11 public health emergency declarations issued between 2005 and 2012 by 8 different states. One state (Louisiana) issued 3 public health emergency declarations and 1 state (Florida) issued 2. The remaining 6 states each issued 1 public health emergency declaration (Table 1). Most public health emergency declarations were issued in response to the H1N1 influenza pandemic (n = 7). Three were issued for hurricanes, and 1 was issued over concerns about prescription drug abuse. In accordance with state law, 9 of the public health emergency declarations were issued by a state’s governor as executive orders or proclamations; 2 public health emergency declarations originated in a state’s health department, with the state’s highest ranking health officer releasing a statement about the public health emergency.

TABLE 1—

Public Health Emergency Declarations by Date and State

Date	State	Relevant Legislation	Issued by	Subject of Declaration	Duration, Days
Sept 2, 2005a	LA	La. Rev. Stat. Ann. §29:766(a)	Governor	Hurricane Katrina	30
Aug 30, 2008	LA	La. Rev. Stat. Ann. §29:766(a)	Governor	Hurricane Gustav	30
Apr 29, 2009	TX	Tex. Health & Safety Code Ann. § 81.003(7); Tex. Gov’t Code Ann. § 418.014	Governor	H1N1	30f
Apr 30, 2009	WI	Wis. Stat. § 323.10	Governor	H1N1	60f
May 1, 2009b	FL	Fla. Stat. §381.00315	State health officer	H1N1	60
May 1, 2009	MD	Md. Code Ann., Pub. Safety § 14–3A-02	Governor	H1N1	30f
May 2, 2009	IA	Iowa Code § 29C.6(1)	Governor	H1N1	30f
Sept 1, 2009c	ME	Me. Rev. Stat. Ann. tit. 22, § 802(2-A)	Governor	H1N1	30
Feb 5, 2010	IL	20 Ill. Comp. Stat. 3305/2	Governor	H1N1	30f
Jul 1, 2011d	FL	Fla. Stat. §381.00315	State health officer	Prescription drug abuse	60
Aug 27, 2012e	LA	La. Rev. Stat. Ann. §29:766(a)	Governor	Hurricane Isaac	30

^aRenewed or amended on Sept 12, 2005; Sept 19, 2005; Sept 23, 2005; Oct 13, 2005; Oct 25, 2005; and Nov 4, 2005.

^bAmended on May 2, 2009, and May 6, 2009.

^cRenewed on Sept 30, 2009, and Oct 29, 2009.

^dAmended on Jul 6, 2011.

^eRenewed on Sept 3, 2012.

^fDetermined by consulting state law.

Four declarations specified a 30-day duration, 2 specified a 60-day duration, and 5 did not include an end date for the declaration. If the declaration did not contain this information, I consulted state law to determine when the declared public health emergency would conclude (e.g., 30 days, 60 days).^15,16

Reasons for Public Health Emergency Declarations

All of the public health emergency declarations included reasons for the issuance of the declaration. These reasons fell into 1 or more of 3 categories: (1) public health concerns within the state, (2) actions of federal or international institutions, and (3) challenges related to health care personnel.

Every public health emergency declaration listed intrastate public health concerns as a reason for the issuance of the declaration. All 7 of the H1N1 declarations expressed concerns about the potential for H1N1 to spread throughout the state. Four of the H1N1 declarations stated that they were made in response to at least 1 confirmed case of H1N1 within the state. Three mentioned the importance of distributing and administering the H1N1 vaccination. Among the 3 public health emergency declarations related to hurricanes, public health concerns included flooding, loss of electricity, disruptions to health care, unsanitary conditions, and disposal of human remains. Finally, the public health emergency declaration concerning prescription drugs noted the challenges posed by the abuse and diversion of prescription drugs within the state.

Four public health emergency declarations stated that they were issued in response to actions taken by federal or international institutions. Of these, 3 declarations noted that, on April 26, 2009, the US Department of Health and Human Services had determined that the spread of H1N1 in the United States constituted a public health emergency. Two mentioned guidance developed by the federal government regarding the administration of the H1N1 vaccination. In addition, 1 declaration noted that the World Health Organization had concluded that H1N1 would likely become an international pandemic.

Concerns related to health care personnel arose in 4 public health emergency declarations. Two H1N1 declarations raised this concern in the context of staffing shortages, particularly in light of the need for additional personnel to administer the H1N1 vaccine. Two of the hurricane-related declarations stated that out-of-state emergency medical technicians would be needed to meet the demand for medical services among those affected by the hurricane.

Directives in Public Health Emergency Declarations

All 11 public health emergency declarations contained specific directives to execute the declaration. The directives concerned (1) prevention and treatment activities, (2) coordination among state agencies, and (3) plans for augmenting the health care workforce.

Three declarations specified prevention and treatment activities that should occur in response to H1N1. Of these, 2 declarations indicated that the state would temporarily suspend laws or take other measures to facilitate the immediate acquisition of antiviral supplies or vaccines. One declaration encouraged specific preventive efforts such as promoting social distancing measures for those with H1N1 symptoms and distributing educational materials about how to limit transmission of the disease.

Four declarations included plans for coordination among state agencies as part of a public health emergency response. Of these, 3 mentioned coordination of response activities between the state’s department of health and its department of emergency management. One declaration indicated that the state department of health would serve as the lead agency for implementing the state’s response to the public health emergency.

Plans to temporarily augment the health care workforce in the state through expanded scope-of-practice requirements or licensure reciprocity for out-of-state providers appeared in 5 public health emergency declarations. Two declarations indicated that for certain health care professionals (e.g., emergency medical technicians), scope-of-practice requirements would be altered to allow them to administer the H1N1 vaccination. Two declarations contained provisions to allow out-of-state health care professionals to temporarily practice in the state for the duration of the public health emergency.

DISCUSSION

Although 24 states have codified their government’s power to declare a public health emergency,¹¹ the power has rarely been used, with 8 states issuing 11 declarations through July 2013. In 6 of these states, just 1 public health emergency declaration had been issued. Public health emergency declarations typically originated in the office of the governor, although 1 state allowed the declaration to be made by the state’s highest ranking health officer. Whether specified in the declaration itself or in the cited legal authority, declared public health emergencies generally lasted 30 or 60 days, with an option to renew the declaration at the end of this period.

The small number of public health emergency declarations may be attributed to several factors. State governments may be reluctant to deploy a new and previously untested authority or may lack clarity about the circumstances under which a public health emergency declaration is appropriate.^7,17,18 In addition, state laws typically limit the circumstances under which public health emergency declarations can be issued. For example, in Iowa, which declared a public health emergency related to H1N1 influenza, state law limits such declarations to “an imminent threat of an illness or health condition” caused by bioterrorism, a novel infectious agent or biological toxin, a chemical release, or a natural disaster.¹⁹ The laws in some states that declared public health emergencies related to H1N1 (e.g., Maryland²⁰ and Texas²¹) exclude natural disasters from public health emergencies, limiting the declaration to health harms caused by a novel biological or infectious agent. In these states, H1N1 presented the first opportunity for this authority to be deployed.

Among the states that chose to declare public health emergencies for H1N1, several commonalities emerge. Five declarations were issued within days of the federal government’s public health emergency declaration for H1N1 on April 26, 2009. When the Texas declaration was issued on April 29, Texas had the second highest number of confirmed H1N1 cases in the United States and the first death.²² Florida and Iowa both had early confirmed H1N1 cases,²³ and Maryland and Wisconsin bordered multiple states with confirmed cases of H1N1.²⁴ The combination of the federal declaration and confirmed H1N1 cases within or near these states likely provided the impetus for the inaugural deployment of their public health emergency powers.

Although many states only allow public health emergency declarations under narrow circumstances, in 2011 Florida’s legislature interpreted its public health emergency law broadly and took the unusual step of mandating a public health emergency declaration by the state’s highest health officer. This public health emergency declaration coincided with the passage of the state’s prescription drug law, which limited dispensing privileges for some physicians and required them to turn over their inventory of certain prescription drugs to law enforcement.²⁵ To facilitate this process, the prescription drug law mandated the declaration of a public health emergency and subsequent coordination among the state’s department of health, attorney general, and state and local law enforcement agencies.

By codifying a distinct power to declare a public health emergency, states can provide guidance and information for intrastate, and possibly interstate, planning and response activities when the public’s health is threatened. Without any statutory clarity, confusion may arise over who has authority to issue a public health emergency declaration, the circumstances under which it may be issued, and the subsequent powers that may be deployed.¹⁷ For example, without a clear definition of what constitutes a public health emergency, states may issue declarations for endemic diseases. This occurred in 2013 when New York’s governor declared a public health emergency over seasonal influenza.²⁶ New York has neither a codified power to declare a public health emergency nor a codified definition of what constitutes a public health emergency. Therefore, New York’s governor was not constrained by the high threshold for a public health emergency declaration that other states have legislatively established. Although some may view this flexibility favorably, it also raises concerns about the deployment of emergency powers—reserved for extraordinary circumstances—to address a predictable, seasonal event.²⁷

As illustrated by the New York example, a governor’s emergency powers may include the ability to declare a public health emergency. This does not, however, account for a state’s underlying public health legal preparedness infrastructure. Without a codified public health emergency declaration process, which generally includes planning and coordination requirements in advance of an emergency, states may operate under outdated public health emergency laws. In many states, public health statutes have been assembled over time, creating a patchwork effect. These laws may fail to account for contemporary public health practices and contain internal inconsistencies or ambiguities about agencies’ responsibilities for public health emergency responses.²⁸ A public health emergency response that relies on broad emergency powers may be dramatically hindered if the state’s public health law infrastructure—which is critical to the implementation of the response—is in disarray.

Because public health emergency declarations address more specific circumstances than general emergency declarations, states may issue simultaneous emergency and public health emergency declarations. In 2012, Louisiana’s governor declared both a state of emergency and a public health emergency for Hurricane Isaac. The emergency declaration, issued on August 26 under the authority of the Louisiana Homeland Security and Emergency Assistance and Disaster Act, expressed concern about the likely strengthening of then-Tropical Storm Isaac as it approached the Gulf Coast and the difficulty of predicting its path. This declaration granted the director of the state’s Office of Homeland Security and Emergency Preparedness authority to “undertake any activity authorized by law . . . [deemed] necessary and appropriate in response to this declaration.”²⁹ The next day, a separate public health emergency was declared under the authority of the Louisiana Health Emergency Powers Act. This declaration responded to requests from the state’s secretary of the Department of Health and Hospitals and the state health officer for licensing provisions to be temporarily suspended to allow out-of-state emergency medical technicians to practice in the state.³⁰ As this example demonstrates, Louisiana law clearly distinguishes between agencies involved in the coordination of an emergency response versus a public health emergency response. In other instances, however, dual declarations may cause confusion if the laws supporting the declarations lack precision, the declarations contain redundant or overlapping language, or the declarations establish competing processes among different agencies for implementing the response.³¹

Limitations

Through the systematic identification and analysis of state-level public health emergency declarations, this study provides insight into states’ use of their public health emergency powers. Despite this strength, the study also has several limitations. First, because this study did not consider the public health emergency powers of localities, local declarations of public health emergency were not included in the analysis. Second, I did not consider public health emergency declarations issued by governments other than the 50 US states, such as the US territories. Third, although I used a comprehensive search strategy, including newspapers and multiple sources in each state (e.g., Web sites for the health department and governor’s office), it is possible that some state-level public health emergency declarations were not identified. This could have occurred if a declaration was never posted online and it received no coverage in press releases or other documents for the media. Finally, although this research offers information about the content of public health emergency declarations, I did not explore the actual implementation of these public health emergency powers after the issuance of the declaration. This is a promising and important area for additional research.

Conclusions

The concept of a public health emergency remains relatively young, having been introduced on a national scale approximately 10 years ago. In the intervening years, approximately half of the US states have codified the power to declare a public health emergency. States have rarely used this power, however, which may be because of the exceptional circumstances that constitute a true public health emergency. As the example of H1N1 influenza demonstrated, when a novel infectious disease appears, some states will declare a public health emergency and implement related powers. Although these declarations are infrequent, the evolving nature of public health threats necessitates continuous state-level planning for varied response scenarios. Ideally, public health emergency declarations should be part of a comprehensive planning process that, if necessary, leaves a state well positioned to respond and protect the health of its residents.