THE CASE FOR STREAMLINING EMERGENCY DECLARATION AUTHORITIES AND ADAPTING LEGAL REQUIREMENTS TO EVER-CHANGING PUBLIC HEALTH THREATS

Introduction

Disasters can come from unforeseeable sources and create unforeseeable problems. The nation’s response system is built to be flexible and responsive to all threats, including those we cannot predict. As a result, federal, state, and local governments adopted the National Incident Management System (NIMS), a framework developed by the U.S. Department of Homeland Security, for responding to all forms of emergencies, including terrorist attacks,¹ natural disasters,² oil spills,³ and emerging infectious diseases.⁴ NIMS’s defining characteristics—a clear chain of command and flexible organizational structure—allow it to adapt to any situation.⁵

While NIMS creates a clear structure for emergency response, state and local responders must still operate within their respective jurisdiction’s legal system. The law establishes both the powers and limitations for how government officials protect citizens’ health and well-being.⁶ While many laws have been drafted specifically for the benefit of responding to disasters,⁷ complex and inflexible legal structures might impede efficient and effective responses.⁸ To minimize this impact, streamlined and flexible legal systems are vital to address the unforeseeable circumstances that disasters create.⁹ Centralized emergency response authorities and emergency declarations can act more efficiently than separate groups of officials and various types of emergency declarations.¹⁰ Further, an adaptable legal system requires the ability to remove legal barriers. A streamlined and adaptable emergency response legal system allows disaster responders to react as quickly and efficiently as possible in our world of ever-changing threats.¹¹

This Article makes the case for streamlining emergency declaration authority and creating an adaptable legal system. Part I describes the utility of emergency declarations, but gives examples of how that utility can be diminished when states divide specific emergency powers across various types of declarations.¹² Part II explores gubernatorial emergency powers to suspend or waive laws as an adaptable solution for removing legal barriers to an efficient and effective emergency response.¹³ These arguments demonstrate that a streamlined and adaptable state legal system for emergency response is one that (1) provides a governor with the authority to issue one type of emergency declaration, (2) does not divide vital authorities across various declaration types, and (3) provides a governor with the unilateral power to remove statutory and regulatory barriers to an effective response.

I. Streamlined Emergency Declarations are Necessary to Activate Alternative Legal Procedures

Emergency powers are a fundamental tool in legal preparedness.¹⁴ However, legal mechanisms for activating these powers through emergency declarations can be complex,¹⁵ situation dependent,¹⁶ and divided among specific executive officials.¹⁷ Leadership turnover can also exacerbate confusion by creating knowledge gaps about which officials can exercise what authorities in which situations.¹⁸ While emergency declaration powers provide a foundation for emergency response, a disparate system of state emergency declaration powers can create a gap in legal preparedness.

Emergency declarations provide government responders with vital tools to address the threats posed by disasters. State emergency declaration powers exist thanks to policymakers determining that—to respond to large-scale threats to the health and well-being of citizens—governors need special authorities for the purposes of mitigating the effects of such threats.¹⁹ These “all-hazards” declarations—referred to by a variety of names, including “state of emergency,”²⁰ “disaster,”²¹ or “emergency,”²²—trigger powers that can be used to activate state emergency plans,²³ activate the state’s national guard,²⁴ and authorize the use of broad powers, including the power to commandeer property and supplies for government use.²⁵ All-hazards declarations can be contrasted with “public health emergencies” and “multi-level declarations.” Public health emergency declarations are specific emergency declarations that are limited to certain types of threats, such as diseases; multi-level declarations are based on the intensity of the threat or level of destruction.²⁶ Public health emergency and multi-level declarations can create complexity for an emergency response system by imbuing officials other than the governor— such as state health officials—with the power to declare emergencies and by limiting certain governmental powers—which may be necessary during all disasters—to specific types of disasters.²⁷ The creation of disparate emergency declaration types creates an unnecessary legal complexity that could burden disaster planners and responders and hinder rapid and effective emergency response.

Florida’s recent response to the Zika virus outbreak demonstrated both the utility of emergency declaration authorities and the complexity created by disparate types of emergency declarations. Florida’s first cases of travel-related Zika virus infection were announced on January 19, 2016.²⁸ On February 3, Florida Governor Rick Scott issued an emergency declaration to address the threat of Zika in the state.²⁹ In the declaration, Governor Scott ordered a number of emergency response actions, including designating the state health department as the agency in charge of coordinating the response, instructing all state agencies under the governor’s direction to cooperate with the state health department, and requesting that agencies not under the governor’s direction do the same.³⁰ Additionally, the governor ordered the state’s Department of Environmental Protection and its Fish and Wildlife Conservation Commission to “support the Department of Agriculture and Consumer Services in any way as it develops extensive mosquito control plans to contain the spread of [Zika].”³¹ By using these authorities, the governor established a clear chain of command for interagency cooperation.

The governor issued another Zika emergency declaration four months later on June 23.³² The new declaration greatly expanded the list of affected counties covered by the initial emergency declaration and activated additional vital emergency powers related to funding the response activities.³³ One such power, codified at FLA. STAT. ANN. § 252.37(2), states that:

If the Governor finds that the demands placed upon [emergency management] funds in coping with a particular disaster declared by the Governor as a state of emergency are unreasonably great, she or he may make funds available by transferring and expending moneys appropriated for other purposes, by transferring and expending moneys out of any unappropriated surplus funds, or from the Budget Stabilization Fund.³⁴

By activating this authority, the Governor diverted $26.2 million in state funds to the response efforts.³⁵ As of October 2016, shortly after Congress passed the Zika Response and Preparedness Act,³⁶ at least $73.2 million in state funds had been diverted to Florida’s efforts to combat Zika.³⁷ This allocation relied entirely on the Governor’s use of emergency declarations as a vital legal mechanism to combat the threat that was facing the state.

At the same time, Florida’s use of emergency response authorities in the fight against Zika demonstrated how disjointed executive authorities can complicate an emergency response. Like other states that have emergency declaration authorities unique to certain threats,³⁸ Florida allows specific authorities to be invoked only during a declared public health emergency. Florida defines a public health emergency as “any occurrence, or threat thereof, whether natural or manmade, which results or may result in substantial injury or harm to the public health from infectious disease, chemical agents, nuclear agents, biological toxins, or situations involving mass casualties or natural disasters.”³⁹ The only party that may declare a public health emergency is the State Health Officer, who must consult with the governor if possible before doing so.⁴⁰ Without a public health emergency declaration from the State Health Officer, officials cannot use unique emergency response authorities, including issuing orders to allocate prescription drugs to certain geographic areas, temporarily reactivating certain healthcare practitioners’ licenses, or ordering individuals to be examined, tested, vaccinated, treated, isolated, or quarantined.⁴¹

Florida’s two-declaration approach required Governor Scott, in his February and June 2016 emergency declarations, to “direct the State Health Officer and Surgeon General, Dr. John Armstrong, to declare a public health emergency” in the affected counties.⁴² Complying with this order, Dr. Armstrong issued a public health emergency declaration, ordering a meeting of representatives from various county agencies and boards for affected counties, the development of action plans by each county health officer to be submitted to state health department’s incident command offices, and the development of “an outreach program for local medical professionals to increase awareness and access to diagnostic tools.”⁴³ As Zika spread, Dr. Armstrong issued an additional public health emergency declaration extending the same requirements to newly affected counties.⁴⁴ Media outlets widely misreported Dr. Armstrong’s declaration as a public health emergency declaration by the Governor, thus demonstrating the confusion that having two unique types of declarations can create.⁴⁵ Although Florida’s response to Zika did not require issuance of quarantine orders or reactivation of healthcare professionals’ licenses, had those actions been necessary, media reports likely would have indicated that those public health emergency-specific authorities had been activated and ready for use when that was not, in fact, the case.

The challenges that this kind of system poses go beyond semantics. A jurisdiction can be best prepared by integrating legal authorities seamlessly into plans, exercises, and procedures. This integration must clearly and comprehensively describe when and how those powers may be used. Consider a state whose emergency plan has processes to reactivate healthcare licenses— including those of retired healthcare professionals—during an emergency, and included those reactivations in its exercises. That state would train its leaders and medical community to consider a public health emergency as a trigger for licensure reactivation. If response leaders then heard in a real-world event— either through the media or by word of mouth—that the governor had declared a public health emergency, they would, at best, have to clarify whether the licensure reactivation power had been activated. At worst, they could assume that they may begin contacting retired healthcare practitioners.

Disparate emergency declarations can also obfuscate legally mandated protections for emergency responders and healthcare providers participating in response activities. For example, following Hurricane Katrina, many in the field of emergency response law called for increasing liability protections for healthcare providers who participate in emergency response activities.⁴⁶ They argued that healthcare providers are more willing to serve in dangerous and distressing situations when they are protected from liability.⁴⁷ Maryland began providing these liability protections by passing the Catastrophic Health Emergencies Act in 2011.⁴⁸ Under the law, healthcare provider liability protections are provided only upon the declaration of a “catastrophic health emergency.”⁴⁹ However, the Act conditions the declaration of a catastrophic health emergency on a proclamation by the governor that “a situation in which extensive loss of life or serious disability is threatened imminently because of exposure to a deadly agent.”⁵⁰ Unlike Florida, which includes natural disasters in its definition of public health emergency, Maryland law defines a deadly agent only as:

1. Anthrax, ebola, plague, smallpox, tularemia, or other bacterial, fungal, rickettsial, or viral agent, biological toxin, or other biological agent capable of causing extensive loss of life or serious disability;

2. Mustard gas, nerve gas, or other chemical agent capable of causing extensive loss of life or serious disability; or

3. Radiation at levels capable of causing extensive loss of life or serious disability.⁵¹

In the case of a natural disaster—such as a blizzard or hurricane—the governor would have to declare a “state of emergency” and activate a different set of emergency powers.⁵² Since Maryland’s liability protection statute for healthcare providers during disasters states that providers are “immune from civil or criminal liability if the health care provider acts in good faith and under a catastrophic health emergency proclamation,”⁵³ such protections would not apply during a state of emergency declared by the governor.⁵⁴

Maryland’s volunteer healthcare provider disaster liability protections stand in contrast to Virginia’s liability protections. Under Virginia law, a healthcare provider is protected from liability during a state of emergency:

[A]ny healthcare provider who responds to a disaster shall not be liable for any injury or wrongful death of any person arising from the delivery … of healthcare when (i) a state or local emergency has been … declared in response to such disaster, and (ii) the emergency and subsequent conditions caused a lack of resources, attributable to the disaster, rendering the healthcare provider unable to provide the level or manner of care that otherwise would have been required in the absence of the emergency and which resulted in the injury or wrongful death at issue.⁵⁵

This protection applies in any type of disaster, including weather-related, biological, and man-made threats.⁵⁶ Due to these different types of declarations that activate disaster liability protections in Virginia and Maryland, if a hurricane traveled up the Chesapeake Bay, caused Hurricane Katrina level destruction, and both Virginia and Maryland declared emergencies, only healthcare providers in Virginia would receive disaster liability protections, as a hurricane would not qualify as a “deadly agent” under Maryland law. This could cause confusion and a subsequent refusal by healthcare responders to volunteer to assist in response activities in Maryland.

Variations in disaster types are not just limited to states dividing natural disasters from disease-related emergencies, but also include states creating multiple levels of a broadly defined state of emergency. For example, Tennessee law defines three types of disasters: “catastrophic disaster,” “major disaster,” and “minor disaster.”⁵⁷ A catastrophic disaster is “a disaster that will require massive state and federal assistance, including immediate military involvement.”⁵⁸ A major disaster is “a disaster that will likely exceed local capabilities and require a broad range of state and federal assistance.”⁵⁹ A minor disaster is one that “is likely to be within the response capabilities of local government and to result in only a minimal need for state or federal assistance.”⁶⁰

These unique disaster types in Tennessee correspond with unique authorities. For example, volunteer healthcare providers, including hospitals and community mental healthcare centers, can only receive liability protections during a catastrophic or major disaster.⁶¹ The law does not provide liability protections during declared minor disasters. In states with laws like Tennessee’s, responders do not only need to parse out which powers align with disease-related versus weather-related emergencies—but they might also need to determine which authorities align with different levels of destruction.

Qualifying liability protections by type of emergency can confuse responders and dissuade them from helping when and where they are needed most.⁶² When emergency response teams are short staffed, affected communities take longer to recover. In 2016, the National Association of County and City Health Officials (NACCHO) released a report that analyzed survey responses from 2,533 local health authorities.⁶³ Of those, only 44% reported to NACCHO that they had reviewed legal authorities relevant to emergency preparedness and response.⁶⁴ Presumably, those jurisdictions can expect specific emergency declarations to activate specific response authorities, and might have built those triggers into plans and exercises. Yet, even in such jurisdictions, confusion regarding which powers correspond with which declaration could still occur. For the 56% of local health departments that did not report having reviewed legal authorities for response, the problems that ensue could be even worse. Health authorities can minimize this kind of confusion by streamlining emergency declarations for all hazard types and allowing only one entity to declare a state of emergency.

The emergency declaration authorities discussed in this Part serve as a vital first step in activating emergency powers and procedures to aid in disaster response. In theory, the utility of emergency declarations may extend to many specific areas of law, such as scopes of practice, procurement, and the collection and use of individuals’ health data. In reality, the legal barriers to an effective response may only become apparent once a disaster has struck, making it difficult to anticipate exactly how a declaration should be utilized. The following Part will discuss a solution many—but not all—states have developed to address this challenge: granting state governors the broad authority to remove legal barriers to an emergency response.

II. Gubernatorial Emergency Suspension Authorities are Necessary for an Adequately Flexible Legal System to Mitigate the Effects of Unforeseeable Threats and Their Impact

One of the greatest tools to ensure legal systems can adapt in disaster situations is the authority to suspend or waive legal requirements. Laws are the “structures, norms, and rules that a society uses to resolve disputes, govern itself, and order relations between members of the society.”⁶⁵ Laws and legal authorities “proscribe practices thought to threaten health and prescribe practices thought to compliment it.”⁶⁶ But because disasters stress existing systems and resources, day-to-day legal requirements could hinder communities facing disasters rather than help them.⁶⁷ Consequently, some laws include language that waives certain requirements during declared emergencies that are specific to the authorities governed only by those specific laws.⁶⁸ While these authority-specific waivers and suspensions are useful, they do not provide the flexibility necessary to address unforeseen circumstances; such flexibility is only provided by broad emergency suspension powers.

The utility and limitations of authority-specific waivers and suspensions are demonstrated at both the federal and state levels. For example, Section 1135 of the Social Security Act authorizes the Secretary of Health and Human Services (HHS) to suspend requirements under Medicare, Medicaid, the Children’s Health Insurance Program, the Health Insurance Portability and Accountability Act, and the Emergency Medical Treatment and Labor Act upon a presidential emergency declaration and a public health emergency determination by the Secretary of HHS.⁶⁹ More recently, the 21st Century Cures Act of 2016⁷⁰ allows the Secretary of HHS to waive requirements— established by the Paperwork Reduction Act (PRA)—regarding the federal government’s collection of voluntary information after (1) declaring a public health emergency under the Public Health Service Act and (2) determining that the emergency necessitates a waiver of the PRA.⁷¹ However, this waiver was added only after the federal government was forced to meet the PRA requirements during responses to recent disease outbreaks.⁷²

States have used the same methods to add flexibility to their legal systems through statute- or regulation-specific waivers and suspensions. One domain in which states have provided authority-specific flexibility in declared emergencies is in the context of vaccination authorities.⁷³ Laws governing the administration of vaccines by pharmacists can be complex and full of conditions.⁷⁴ As of 2016, every state and the District of Columbia has granted pharmacists some form of authority to vaccinate individuals.⁷⁵ However, pharmacists’ authority to vaccinate can come with many limitations, including limits on the ages of individuals who can receive a vaccination,⁷⁶ the types of vaccinations that may be administered, how those vaccines may be administered,⁷⁷ and requirements for third-party authorization.⁷⁸ Some of the most complex limitations mandate the age at which one can receive certain vaccines from a pharmacist.⁷⁹ These complexities can create major barriers to achieving herd immunity in a pandemic, especially as new vaccines are developed or as “changes in recommendations for existing vaccines (e.g., expanded populations, changes in dosing) … make it difficult for state policy makers to keep pace.”⁸⁰

Still, few states specifically exempt limitations on pharmacist vaccination authorities during formal emergency declarations. Prior to 2002, no states had such exceptions.⁸¹ That year, New Mexico was the first to modify its pharmacist vaccination laws to include specific exceptions for disasters; Virginia followed in 2003.⁸² As of 2015, of the forty-seven states that grant pharmacists express authority to vaccinate,⁸³ only ten states explicitly provided exceptions in their pharmacist vaccination laws for state-declared emergencies.⁸⁴ In the remaining jurisdictions, responders must find alternative legal mechanisms that allow for exceptions to pharmacist vaccination authorities, or must seek out other types of healthcare professionals to administer vaccines.

Unfortunately, relying on authority-specific waivers is only part of the solution. Used alone, authority-specific waivers require lawmakers to either anticipate how a disaster response might impact all authorities and build relevant provisions into law, or else add the waiver to the law after an emergency occurs (as was the case with the PRA waiver).⁸⁵ States must implement far more flexible solutions to deal with unforeseen threats.

The most adaptable method by far is allowing governors to suspend any statutes or regulations that inhibit response upon the declaration of an emergency. This tool has proved exceptionally useful. The 2015 HIV outbreak in Scott County, Indiana, demonstrated the efficiency of gubernatorial emergency suspension authorities as a means to remove legal barriers while legislative solutions are being pursued.

The HIV outbreak began with eleven confirmed cases in January; typically, the county saw fewer than five cases per year.⁸⁶ After an investigation, officials concluded that the cases “were linked to syringe-sharing partners injecting the prescription opioid oxymorphone.”⁸⁷ The county deployed a multifaceted response to prevent additional cases from spreading through shared needles.⁸⁸ This included “a public education campaign, establishment of an incident command center and a community outreach center, short-term authorization of syringe exchange, and support for comprehensive medical care, including HIV and hepatitis C virus care and treatment as well as substance abuse counseling and treatment.”⁸⁹ However, Indiana law prohibited the operation of needle exchanges at the time; violating the prohibition was punishable by criminal and civil penalties.⁹⁰ To remove this legal barrier, then-Governor Mike Pence declared an emergency on March 26, 2015.⁹¹ By activating response authorities, the Governor gained the power to “[s]uspend the provisions of any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency if strict compliance with any of these provisions would in any way prevent, hinder, or delay necessary action in coping with the emergency.”⁹² This enabled the Governor to suspend all statutes that would inhibit the operation of a needle exchange program to address the Scott County HIV epidemic, including any associated civil and criminal penalties.⁹³ The suspension authority allowed responders to act immediately.⁹⁴ In the meantime, the Indiana state legislature spent time crafting a longer-term solution to allow counties to establish needle-exchange programs.⁹⁵ Absent the governor’s agile emergency suspension authority, responders would have been forced to wait until the state legislature was able to convene and act to remove the legal barrier to an effective response.

A gubernatorial emergency suspension authority lets states remove legal barriers quickly and effectively to aid a response effort. However, this power is not available in all states and not for all types of legal barriers. In a recent study, researchers from the Centers for Disease Control and Prevention’s Public Health Law Program and the National Nurse-Led Care Consortium: Public Health Management Corporation analyzed the laws of the fifty states and the District of Columbia, to determine which jurisdictions authorize governors to broadly amend or suspend laws under a state-declared emergency.⁹⁶ Researchers found that forty-two state governors possess the authority to suspend either statutes or regulations during a disaster.⁹⁷ While forty-two of fifty-one jurisdictions might appear to be a near uniform adoption of this authority by states, upon closer examination, the data show that this authority extends to statutory requirements in only thirty-five of the states.⁹⁸ Yet, both regulations and statutes outline how the government should respond to emergencies. With that in mind, fifteen states and the District of Columbia cannot, under express authority, look to their government’s chief executive to remove statutory barriers to effectuate an efficient response.⁹⁹ Those jurisdictions would either need to respond in a way that complied with existing laws or seek other means to removing legal barriers.¹⁰⁰ Gubernatorial emergency declaration authorities that allow for the suspension of statutes and regulations provide response leaders with a streamlined tool that is adaptable to all manner of unforeseen threats.

Conclusion

Threats can take many forms. Some are predictable, but many are not. The U.S. emergency response system has rightfully adopted an all-hazards approach to dealing with threats. This approach requires uniform systems of response leadership. The adoption of NIMS as the de facto organizational structure for all types of threats, including natural disasters, oil spills, and disease emergencies, evinces this approach’s strength. NIMS is characterized by a clear chain of command and a flexible organizational structure.¹⁰¹ Our legal emergency response system must possess these traits, too. To that end, emergency response authorities should be centralized—not dispersed among groups of officials and various types of emergency declarations. Further, an adaptable legal system must be able to remove legal barriers, both seen and unforeseen. While legislatures and executive branch officials have anticipated some legal issues and built emergency waivers into legislation, an agile legal system allows governors to suspend both statutes and regulations for the period necessitated by a disaster. With a streamlined and adaptable emergency response system that does not divide vital authorities across various declaration types and provides a unilateral power to remove statutory and regulatory barriers to effective responses, disaster responders can ensure as quick and efficient a response as possible in a world of ever-changing threats.