Minnesota Emergency Health Powers Act Report to the Minnesota Legislature 2003 Minnesota Department of Health February 14, 2003
Commissioner’s Office 85 East Seventh Place, Suite 400 P.O. Box 64882
Minnesota Emergency Health Powers Act
February 14, 2003 For more information, contact: Commissioner’s Office Minnesota Department of Health 85 East Seventh Place, Suite 400 P.O. Box 64882 St. Paul, MN 55164-0882 Phone: (651) 215-5800 Fax: (651) 215-5801 TDD: (651) 215-8980
As requested by Minnesota Statute 3.197: This report cost approximately $12,030 to prepare, including staff time, printing and mailing expenses. The cost of facilitating public input into the analysis of the issues contained in this report is an additional $12,949. Upon request, this material will be made available in an alternative format such as large print, Braille or cassette tape. Printed on recycled paper.
Minnesota Emergency Health Powers Act Legislative Report and Recommendations Executive Summary . 1 Minnesota Emergency Health Powers Act Study Recommendations . 2 Background . 6
Summary of 2002 Proposal and Session. 6 Study Requirements . 8
National and state activities and events since the end of the 2002 session. 9 Process for obtaining community and partner input . 10
Commissioner's Task Force on Terrorism and Health. 10 Working Conference on Public Health Emergency Powers . 10 Community Health Conference . 10 Preserving Antibiotic Effectiveness Meeting . 11 Immunity, Liability and Compensation Meeting. 11
Study Issues: Analysis and Recommendations . 12
Liability, Immunity and Compensation Concerns . 12 Dangerous facilities and materials . 15 Control of medical supplies and facilities. 16 Limiting public gatherings and transportation . 17 Medical examinations, testing, collecting laboratory specimens and samples . 18 Isolation and quarantine and due process protections . 19 Vaccination and treatment . 21 Definition of communicable disease. 22 Enforcement methods for assuring compliance with emergency measures and measures to detect and prevent the spread of disease . 23 Effectiveness of fluoroquinolones and other antibiotics. 24 Impact of recommendations on constitutional and other rights of citizens . 25
Summary of public comments received during the required public comment period. 28 Appendices. 29
Executive Summary
The terrorist attacks of September 11 and the Minnesota Statutes
anthrax outbreak in the fall of 2001 raised questions
144.05, subdivision 1.
about the threat of bioterrorism and other public
General duties. The state
health emergencies in Minnesota. Because of the
commissioner of health shall have general
consequences of such an event, government is
authority as the state's
responsible for limiting the impact of an event. In
official health agency
its statutorily defined role of protecting
and shall be responsible
Minnesotans, the Minnesota Department of Health
for the development and
(MDH) is charged to plan for and oversee care for
maintenance of an
injured, ill or infectious individuals affected by a
organized system of programs and services for protecting,
Depending on the event, public health response
maintaining, and
activities may include any or all of the following:
improving the health of
• Recommending ways to prevent the further
the citizens.
• Communicating directly with the public
months available for the study and the process of
developing the report and publishing the resulting
recommendations. This report concludes that
MEHPA provides a good starting framework, that
practical tests of the powers should be conducted
• Working with health care providers to make
during tabletops and field exercises in 2003, and
that no new legislation is proposed for debate in the
• Supporting local health officials to
participants in preparing this report centered around
the benefits of how the powers would be used,
If a health threat appears to be serious and
rather than identifying new powers that are needed.
widespread, MDH will coordinate response
Some recommendations call for continued study
activities with the national Centers for Disease
and dialogue, with legislative proposals to be made
Control and Prevention, the Minnesota Department
of Public Safety’s Division of Emergency
Management, local public health and emergency
Study Process:
management officials, emergency medical service
Meetings gathered health professionals, health care
providers, physician clinics and hospitals across the
systems representatives, emergency managers,
state. This coordination requires advance planning
emergency responders, other state agencies and
and clarification of roles to avoid missteps or
interest groups, and citizens to discuss the type of
emergency health powers needed or desired. These
meetings were held during the summer and fall of
The 2002 legislature enacted the Minnesota
2002 and provided the basis for the report and
Minnesota Statutes 2002 Chapter 402) to clarify and
Minnesota Emergency Health Powers Act Study Recommendations
These recommendations are based on the topic
areas identified in the study provisions of Chapter
Liability, immunity and compensation concerns
plans, hospitals, other private employers of
health care providers, and their insurance
carriers about concerns and options about
liability, immunity and compensation. Input
Dangerous facilities and materials
established by the Legislature to deal with
unusual risks, and the state, county, and city
4. The Minnesota Departments of Pollution
Control, Public Safety and Health should
protecting the public against tort claim
actions. The trial lawyers who regularly
information, plans, protocols, training and
represent personal injury plaintiffs should
exercises for state and local agencies to
also participate in these discussions to
identify gaps, possible solutions, and need
possible range of radiological, chemical, and
legislative activity and interpretations of the
disposal procedures. These agencies should
Homeland Security Act for application to
also review and modify hazardous material
protocols to assure worker safety in all
particularly the liability concerns of the
5. These same state agencies should do table
3. MDH should request funding for a study on
top and field exercises to test their plans and
potential unmet needs in paying costs for
identify additional protocols and training
acute care in a public health emergency.
Control of medical supplies and facilities
Public Safety and the National Guard, and
local public health agencies should update
and clarify procedures and manpower needs
tort litigation such as the September 11
National Pharmaceutical Stockpile as well
7. The Hospital Preparedness Grant program
Isolation and quarantine and due process
should identify health care system concerns
protections
13. MDH and local public health agencies
should include approaches to isolation and
locations for patient care, including the
quarantine in state and local public health,
special needs of people with disabilities.
hospital and first responder exercises to
identify and clarify roles and procedures in
should work with hospitals to use tabletop
and field exercises to identify issues related
medical facilities caring for victims of a
General's office should develop step-by-step
procedural protocols for how the isolation
and quarantine orders will be carried out
Limiting public gatherings and transportation
with clarity about who's responsible for each
of the steps, including enforcement. These
9. The Minnesota Departments of Health and
protocols should include methods to rapidly
obtain services of interpreters, including
protocols and public information materials
sign language interpreters, and translators
for limiting gatherings or transportation
when needed. The protocols should address
using the least restrictive means necessary.
the procedural and substantive rights of
10. MDH and local public health agencies
should use tabletop and field exercises to
15. MDH and the Attorney General's office
evaluate the effectiveness of these protocols
to protect the public’s health and safety
while assessing the impact on individual or
health agencies and county attorneys for
isolation and quarantine to be consistent
Medical examinations, testing, collecting laboratory specimens and samples
16. MDH should gather information from other
11. MDH and local public health should use
states and Canadian provinces about their
tabletop and field exercises to identify
planning, rules, statutes, and protocols in
problems and solutions related to testing, to
this area. In particular how the states and
provinces immediately adjoining Minnesota
address these issues should be understood
and ideally should be similar as differences
methods to inform individuals of their rights
in approaches will lead to confusion and
to refuse testing and treatment that are
reduce the public health benefit of particular
practicable in a public health emergency.
recommendations or actions for isolation or
surrounding states and bordering Canadian
17. MDH should gather information on the
provinces to coordinate approaches to these
enhanced internal quarantine powers granted
issues and to determine what resources are
the federal government in the Public Health
available just beyond our borders to help
Security and Bioterrorism Preparedness Act
of 2002, and coordinate Minnesota’s efforts
Vaccination and treatment
18. MDH and local public health agencies
solutions that could be used in a public
24. MDH should work with tribal governments,
vaccinations or treatment that may limit
representatives of peace officers to develop
training materials and work with local public
Evaluate the protocols for isolation and
health and others to provide training to
peace officers about enforcement issues for
Preserving effectiveness of fluoroquinolones and other antibiotics
25. MDH should continue collaborative efforts
with other state agencies, provider groups,
treatments that can support critical public
health functions by sharing information in a
providers, and the public about the issue of
Definition of communicable disease
antibiotic resistance and appropriate uses of
20. MDH should propose changing the term
information to groups such as the Veterinary
Statutes 144.419, subd. 1 (2) to “airborne
professional veterinary associations about
transmissible disease”. This issue should be
explored with the Board of Animal Health to
antibiotic-resistant foodborne pathogens for
identify and potential points of confusion.
their use in educating food producers. MDH
should provide information to groups such
Enforcement methods for assuring compliance with emergency measures and measures to detect
providers, professional medical associations
and prevent the spread of disease
consequences of over-prescription, improper
21. MDH should work with sponsors of local,
regional and statewide exercises to include
antibiotics, and the consequences of the
spread of antibiotic-resistant pathogens in
challenges and report problems, suggested
solutions and alternatives to the state. MDH
should also confer with bordering states and
monitoring of human disease and antibiotic
resistance and make information available to
public. MDH should collaborate with animal
disease rules to assure they are up-to-date on
health groups such as the veterinary school
antibiotic resistant bacteria for humans.
23. MDH should review current Division of
MDH should collaborate with human health
groups such as the medical schools, health
associations to evaluate potential human
sources of antibiotic resistant bacteria.
27. MDH and others working on antibiotic
resistance issues should continue to provide
Minnesota specific information to national
Impact of recommendations on constitutional and other rights of citizens
28. MDH should work with the Commissioner's
review reports from state, regional and local
tabletop and field exercises to explore issues
of constitutional and other rights that may
29. MDH should meet with representatives of
various civil rights and other citizen groups,
organizations, and interested individuals
rights during a public health emergency and
30. MDH should monitor, and comment when
powers granted in the Public Health Security
and Bioterrorism Preparedness Act of 2002.
Background
The terrorist attacks of September 11 and the
anthrax outbreak in October and November of 2001
Minnesota Statutes
raised many questions about the threat of
144.05, subdivision 1.
bioterrorism and other public health emergencies in
General duties. The
Minnesota. The public health system’s role, lead by
state commissioner of
the Minnesota Department of Health (MDH) is to
health shall have
limit the impact of an event and to care for injured,
general authority as
ill or infectious individuals and communities
the state's official health agency and shall be responsible
MDH has been working with other agencies to
for the development
design a system for responding to a wide range of
and maintenance of
potential disasters, including bioterrorism. Our
an organized system
response to “regularly occurring” events such as
of programs and
flooding, tornadoes and disease outbreaks are
services for
examples of our readiness to respond to public
protecting,
health threats and provide a strong foundation upon
maintaining, and
which to develop the infrastructure for increased
improving the health
preparedness for widespread public health
of the citizens.
state, and local emergency responders to
MDH operates one of the most sophisticated
provide a seamless response to an event that
systems in the country for detecting unusual disease
patterns. If a health threat shows up on our public
evaluating, treating, and identifying a large
health “radar screen,” MDH’s scientists begin
number of ill, injured, or infectious people.
investigating the threat and conducting lab tests to
MDH will work closely with the national Centers
for Disease Control and Prevention, the Department
Upon determination that a potential problem is
of Public Safety’s Division of Emergency
emerging, MDH issues a health alert to local public
Management, emergency medical service providers,
health agencies located in every county and four of
and clinics and hospitals across the state to help
the major cities of the state. Those local agencies, in
implement a comprehensive response. The state's
turn, notify health care providers, hospitals, clinics
emergency response system, including activation of
and others in their communities. MDH’s alert
the State Emergency Operations Center, will likely
explains the nature of the public health threat and
be set in motion, depending on the nature, location
how the state’s public health system should respond
to it. That response ma y come in various forms,
depending on the nature of the problem. The
Summary of 2002 Proposal and Session
The events of September 11—and the anthrax
attacks that followed—illuminated the need to
strengthen Minnesota's public health system, to
support an effective response to emergencies like
• Recommending ways to prevent the further
these that could have unprecedented scope and
impact. The Centers for Disease Control and
• Communicating directly with the public
Prevention (CDC) contracted with Georgetown
University to develop a model public health law
with an anticipated delivery date of Spring 2002.
CDC shortened the timeline to prepare the model
appropriate tribal authorities. The Governor
act and made it available to states on October 31,
may act without consultation if the situation
2001. The Commissioner of Health convened a
Terrorism and Health Task Force (membership
• The Act requires the Legislature to be called
listed in Appendix A) to assist in the review and
into session if it is not in session at the time
preparation of a bill to propose to the 2002
Legislature. The Task Force met on December 11
• The Governor may procure facilities, make
and January 8 and gave significant input between
meetings to review, debate, and modify the
authorities, determine occupancy of public
components of the bill. The Task Force gave
general support to a draft bill, which was introduced
transportation and transfer the personnel or
as SF2669 by Senators Hottinger and Higgins on
February 1, 2002, and HF3031 by Representatives
Mulder, Huntley, and Bradley on February 7, 2002.
• During a declared emergency, the Governor
may issue orders and rules that have the full
The legislation as introduced included clarification
force and effect of law during any type of
of the process and an outline of the criteria for
declaring a public health emergency. It also
provided a detailed enumeration of the powers and
• During a declared emergency, the Governor
duties of the state health commissioner and
additional powers for the governor in a declared
surplus supplies or facilities when necessary
to save lives, property, or the environment.
The parts of the legislation that passed and were
compensation if property is commandeered.
signed into law are included in Appendix B and are
• During any type of declared emergency, the
described in the House Research Information Brief
Governor may require services of any state
organization or any non-military person and
• The Governor is authorized to declare a
• During a public health emergency, the
public health emergency when an illness or
Governor has authority to identify and safely
health condition is present in Minnesota or
there is an imminent threat of an illness or
• The Act confirms a person's right to refuse
medical examinations, testing, and treatment
characteristics: it must be caused by either
bioterrorism or a new, novel, or previously
• The Act establishes isolation and quarantine
controlled or eradicated airborne, infectious
agent or airborne biological toxin and the
• The Act requires a study and report with
recommendations for statutory changes to
deaths, serious or long term disabilities, or
widespread exposure to an airborne agent
that poses a significant risk of substantial
The legislation went through a number of revisions
future harm to a large number of people.
during 11 committee hearings, several floor debates,
The declaration automatically terminates
and conference committee discussions. Because of
the range of issues covered by the proposed
legislation, the concerns raised by legislators and
commissioner of public safety, the state
others that new or revised pow ers be balanced with
careful review of the impact on civil liberties, the
commissioner of health, other experts and, if
legislature required additional review and study
over the interim. The bill as passed included a
dangerous facilities and materials, the control
number of the provisions of the original proposal,
of medical supplies and facilities, and limiting
some modifications of other provisions and a study
requirement. The bill was passed by both houses of
the Legislature and signed into law by Governor
spread of disease, including requirements for
medical examinations, testing, vaccination,
treatment, isolation and quarantine, collecting
Study Requirements
laboratory specimens and samples, and an
evaluation of the definition of communicable
The specific requirements of the study are quoted
(4) due process protections to apply to
measures to detect and prevent the spread of
(a) The commissioner of health shall study and
submit recommendations to the legislature on
(6) ways to preserve the effectiveness of
additional legislative changes needed to
fluoroquinolones and other antibiotics that are
Minnesota Statutes, chapter 12 or 144, or other
relevant statutes to strengthen the state's
(7) the impact of each recommendation on
the constitutional and other rights of citizens.
emergency, while protecting the constitutional
and other rights of citizens. Before submitting
the recommendations to the legislature, the
consult with the commissioner of public safety,
recommendations in the State Register and
the state director of homeland security, and
provide a period of not less than 30 days for
representatives of local government, tribal
the public to submit written comments to the
government, emergency managers, the board
commissioner regarding the recommendations.
The report and recommendations, including
organizations, emergency medical services
liberties groups. All meetings with these
legislature by January 15, 2003. The report
representatives must be open to the public and
and recommendations must address at least
provided to the public. The commissioner shall
(1) provisions for immunity from liability for
delineate and describe the impact of each
health care providers and others acting under
recommendation on the constitutional and
the direction of the governor or a designee
during an emergency declared due to a public health emergency;
National and state activities and events since the end of the 2002 session
Many changes in the landscape of public health
The Homeland Security Act passed in November
emergency preparedness have appeared since the
2002 included a number of provisions that are likely
to impact Minnesota's approach to public health
(MEHPA) was signed into law. Not the least of
emergency preparedness. We are closely monitoring
these changes is the federal funding to support
the interpretation of the immunity and liability
public health planning, preparedness, and response
provisions. The complete impact of the provisions is
activities from the Centers for Disease Control and
unknown at the time this report was prepared and
Prevention. In addition to funding activities at
will need further study to identify unmet needs and
MDH, funds were distributed to local public health
problems. The new Homeland Security Department
agencies and tribal governments to support initial
may also have directions and priorities to be
efforts in assessing resources and needs in preparing
addressed and may be a vehicle to address issues all
an effective public health infrastructure to support
preparedness. The companion funding for Hospital
Emergency Preparedness provided the impetus to
Continuing media discussion of bioterrorism as a
identify nine hospital regions and begin planning to
weapon of mass destruction keeps this issue in the
care for a large number of injured, ill, or infectious
public's awareness. At this point, we have
patients. With this federal funding, enhanced local
intelligence that identifies France, Iraq, Russia,
emergency management plans will be in place by
North Korea, and the United States as possessing
June 2003 and a timeline for conducting field tests
supplies of smallpox virus. The perpetrator of the
and drills of the plans must be developed. These
anthrax situation on the East Coast has not been
practical tests will create the vehicle for exploring
apprehended. There continues to be considerable
application of the powers in the MEHPA and will
speculation on how the bacteria was obtained and
Twenty-two states had passed legislation similar to
Finally, terrorism events around the world and
MEHPA as of November 2002. Comparison of
ongoing conflict with Iraq and reports of increasing
these laws requires looking both at the new statutes
messages from Al Qaida make ongoing public
and the pre-existing laws in each state dealing with
health preparedness activities a priority that cannot
emergencies. For example, states such as Minnesota
be ignored. Starting in the fall of 2002 the federal
who already have a comprehensive data practices
Department of Health and Human Services and the
statute and a history of data collection,
CDC have directed Minnesota and other states to
management, and analysis for infectious disease
place the highest priority on preparing response
conditions didn't even discuss this as a component
plans for managing an outbreak of smallpox disease
of the new legislation. Other states that do not have
and for immunizing some public health, health care,
these provisions, had much more extensive
and emergency workers in advance of any outbreak
inclusion of these issues in their emergency
in order to enhance the system’s readiness to
legislative proposal but maybe didn't address issues
respond if one should occur. This re-direction of
of public gatherings, for example. Thus, evaluation
resources to one specific area of concern has the
of how states are addressing these issues requires
potential of delaying our preparedness on the more
attention not only to the legislation that was passed,
comprehensive range of public health emergency
what was already on the books, and whether the
state provides services directly or through a network of local health departments.
Process for obtaining community and partner input
The Legislature required that MDH consult with a
recovery. The Homeland Security Advisory Council
variety of individuals and groups. Input and advice
was also notified of meetings and discussions and
were obtained at following events, meetings, and
was sent a copy of the draft report at the same time
Commissioner's Task Force on Terrorism and Working Conference on Public Health
The Commissioner's Task Force on Terrorism and
Emergency Powers
Health was the original community group to guide
A conference to discuss the details and many of the
both the development of the Minnesota Emergency
components of the Minnesota Public Health
Health Powers Act and this study. The charge of the
Emergency Health Powers Act was held on July 18,
Task Force is to strengthen the preparedness of
2002 at the Earle Brown Continuing Education
Minnesota’s health system to respond effectively to
Center in St. Paul. Announcements of the event
acts of terrorism so that injury, illness, and/or loss
were sent to over 500 people and groups and the
of life are minimized. Membership has been open
announcement was included on the Minnesota
and at this point includes over 70 individuals and
Department of Health Web site. About 150 people
representatives of public health, emergency
attended the daylong event. See Appendix F for
preparedness and response, health care providers,
agenda and meeting summary. Also included in
Appendix F is a news story from the St. Paul
The Task Force met on May 14, 2002 and heard an
After an overview of the legislation and priority
update on the progress of the bill through the
issues by Jan Malcolm, Commissioner of Health,
Legislature, which was still in conference
participants broke into groups. Each group worked
committee. The Task Force members were sent
on a particular topic area to identify the values and
periodic email updates on progress of the bill and
principles for the topic area, consider three different
were sent the legislation and summary following the
scenarios, and list the most important public health
end of the legislative session. The Task Force met
authorities for that topic area. The topic areas were:
again on August 27, 2002 and discussed the
legislation that passed and provided input on issues
of concern. Many members participated in other
* Limiting Public Gatherings and Transportation
meetings and all were notified of meetings and of
* Managing Medical Examinations, Testing, and
opportunities to provide feedback and input.
Collecting of Laboratory Specimens and Samples
* Control of Medical Supplies, Medical Personnel,
The draft report was sent to everyone on the Task
Medical Facilities, Dangerous Facilities and
Force contact list for review and comment on
December 16, 2002. Their comments are listed in
Detailed reports from the subgroups can be found
With the passage of the Minnesota Anti-Terrorism
http://www.health.state.mn.us/oep/advisors/meeting
Act of 2002 (Chapter 401), the Homeland Security
Advisory Council was established under the joint
leadership of the Commissioner of Public Safety
Community Health Conference
and Health. The Task Force on Terrorism and
This year's conference of over 400 state and local
Health will serve as a subcommittee to this
public health officials was devoted entirely to the
overarching group addressing all aspects of
terrorism prevention, mitigation, response, and
commissioners, state and local public health staff,
and community advisory committee members
attended two breakout sessions addressing the
Following a discussion of the contents of the Act,
participants described their concerns, issues and
suggestions. An agenda and summary of the
Preserving Antibiotic Effectiveness Meeting
On October 28, 2002, representatives of the
Minnesota Departments of Health and Agriculture,
the Minnesota Board of Animal Health, and the
University of Minnesota presented information
about current activities and issues of antibiotic use
and antibiotic resistance in human and animal
populations. The meeting notice was sent to
approximately 280 people, was included on the
MDH Web site, and was in the October 7, 2002
State Register. This specialized meeting was in
response to the requirement to study ways to
preserve the effectiveness of fluoroquinolones and
other antibiotics that are vital to protecting human
health. Approximately 70 people representing the
animal production industry, the antibiotic
development industry, health care providers, and
others attended this afternoon session. See
Appendix H for the agenda and meeting summary.
Immunity, Liability and Compensation Meeting
On October 31, 2002, representatives of the
Minnesota Department of Health, the Joint
Underwriters Association, the Division of
General's Office met with over 70 people
representing state and local public health, health
care providers and health care systems, private
practice attorneys, and emergency responders to
discuss current laws and protocols related to
liability coverage, immunity, indemnification, and
compensation issues in the event of a public health
emergency. The discussion also included liability
issues related to a pre-event smallpox immunization
plan. The meeting notice was sent to approximately
300 people, was included in the MDH Web site, and
was in the October 7, 2002 State Register. See
Appendix I for agenda and meeting summary.
Study Issues: Analysis and Recommendations
Much of the feedback and discussion in the various
concern include potential financial responsibility for
meetings held these last six months have focused on
injuries resulting from access to or denial of certain
the procedural aspects of how these various powers
health care services, side effects from the use of a
and authorities will be used. Questions such as
health protective measure such as immunization, or
“Who has the authority to use these powers?”,
a disability as a result of exposure to infectious
“What reporting relationships exist or need to be
developed?”, “How will information be shared and
with whom?”, and “Who will provide leadership on
Immunity is the legal exemption from duties,
the implementation of existing powers?” have been
penalties or liabilities, usually granted to a group.
primary concerns. Very few additional statutory
This could include the prohibition of suits against
changes were identified during these discussions.
an individual or health care system for actions taken
Rather, participants recommended any additional
statutory proposals should flow from information
gathered from those who will have responsibility
Tort is damage, injury or wrongful act done
for protecting the public in the event of a public
willfully, negligently or in circumstances involving
health emergency with review by interested groups
and individuals. As a result, most of the
recommendations are to continue to study these
See Appendix J for a glossary for key terms
issues at a practical level - during tabletop or field
including Duty to Defend, Immunity, Indemnity,
exercises and in coordination with information from
Malpractice, Negligence and Gross Negligence,
other states about their approach and solutions
before proposing any changes or additions to
Health care providers, emergency responders, and
The provisions of the Minnesota Emergency Health
volunteer organizers argue that risks of malpractice
Powers Act sunset on August 1, 2004. Prior to that
or other tort liability present strong disincentives to
date, the components of the Minnesota Emergency
those persons who have the critical skills needed to
Health Powers Act sho uld be reviewed based on
respond to an outbreak of, or imminent threat of, a
information from exercises conducted during 2003.
deadly communicable disease. The liability risks
Using the coming year to better define and clarify
deter skilled volunteers, such as recently retired
which of these new powers are needed on an
professionals, from offering their help and active
ongoing basis, which can be dropped, and what new
personnel from offering to help beyond the ordinary
issues need to be addressed means the proposal for
scope of their employment. The following topic
the 2004 session will be better focused and
headings highlight some broad areas of concern,
progress that has been made in addressing these
concerns, and the argument for further protections.
Each of the requirements of the study provision is
A. Mass clinics for vaccinations against bioterrorism agents with risk of serious adverse Liability, Immunity and Compensation reactions in certain individuals. Concerns
The Minnesota Department of Health’s (MDH)
work under the federal grant for Public Health
Liability means being legally obligated or
Preparedness and Response to Bioterrorism has
responsible for the actions of oneself or one’s
employees or for the outcome of those actions. In
• Who is liable for injuries from defective
the event of a public health emergency issues of
vaccine, or vaccine that fails to provide
effective protection from the disease for
to do so? What liability attaches if triage
rules later were shown to be inappropriate to
• Who is liable if the person vaccinated
inadvertently spreads disease to patients,
• What standards of liability apply if shortage
of health care providers requires available
• Who is liable if the person vaccinated
assigned medical facilities away from places
reaction; the high risk was not discovered or
illness, disability, or death as a result of the
• What are the standards of liability for health
care providers who must leave their ill and
• Who bears costs of acute care not covered
hospitalized regular patients in order to
• What are the liabilities of hospitals and other
health care facilities that must relocate ill
patients to lower levels of care in order to
As this report was in final draft, Congress passed a
Homeland Security Bill that would provide certain
liability protection to drug manufacturers, health
care entities, and licensed providers called upon in a
MDH will be meeting with the Minnesota Hospital
federally declared smallpox health emergency.
and Health Care Partnership (MHHP) and other
While a significant step in removing liability risks
interested parties to discuss these questions. They
from these essential actors, the federal bill gives
bring to the fore the tension between the values of
uncertain compensation, possibly no compensation
holding persons responsible for their mistakes and
at all, to persons who suffer harm under any of
of encouraging all providers, including volunteers,
these scenarios. It is not a complete solution to the
to offer everything within their skills and training to
B. Rationing of medical staff care, equipment, C. Use of medical corps volunteers and other facilities, and drugs when overwhelming volunteer providers of skilled care and unskilled numbers of seriously ill patients, loss of medical services to respond to a public health emergency. staff to illness, or destruction/contamination of medical facilities make it impossible for health
As evidenced by the President's Medical Reserve
care providers and facilities to give the
Corps Program and a groundswell of local volunteer
“standard of care accepted under normal
efforts around Minnesota in the wake of the attacks
conditions.”
of September 11 and the anthrax mailings, volunteer
organization, training, and deployment are key
Since the time of the Civil War, American health
elements in preparedness for a public health
care providers have not had to address situations in
emergency. The volunteer effort raises questions
overwhelms the health care system's capacity. With
• What standards of liability apply to “skilled
modern hospitals now operating with little capacity
volunteers”—retired professionals or others
to accommodate surges in patients, the risks of
with relevant training but without current
overwhelmed facilities in a public health emergency
licenses—whose services are the “best
is substantial. It raises questions such as these:
• Who establishes “triage” rules for these
• What standards of liability apply to other
circumstances? What legal authority is there
volunteers without professional training and
skills but who are assisting in caring for
plants outside their jurisdictions. Other provisions
in section 12.35 are limited to government-to-
government aid and no mention is made of private
• What sources of payment will address
volunteers. “Activation by the state” may not be
injuries and illnesses suffered by volunteers
practicable in a widespread catastrophic event in
which local emergency management, public health,
and health care facilities would essentially fend for
MDH plans to monitor a pilot Medical Reserve
themselves and call upon all available volunteer
Corps grant recently awarded to Hennepin County
help. Moreover, the section makes no express
and Minneapolis, under guidance from the state's
reference to the laws providing for governmental
Division of Emergency Management. It hopes some
defense and indemnity of volunteers, as do laws in
of these liability issues will be illuminated and
other states1. Even where it is clear that a health
solutions proposed. As noted in the next section, an
care professional enjoys the protections of the tort
expansion of Minnesota's Good Samaritan Law
claims laws, the direction of court cases in
Minnesota and nationally has been towards
regarding medical malpractice by public providers
D. Current state and municipal tort claim laws
as no different from similar malpractice by private
provide governmental defense and indemnity for
providers. See, e.g., Terwilliger v. Hennepin
state and local employees who are liable for torts
County, 561 N.W.2d 909 (Minn. 1997). Section
so long as they were acting within the scope of
12.35 will not provide adequate assurances to
their employment; did not commit malfeasance
volunteers in a public health emergency unless
or neglect of duty; and did not act in a willful or
clarified by the courts or the Legislature. Since
wanton manner. Outside public employment, the
courts do not give advisory opinions, only an
liability situation for volunteers in a public
experience under an actual emergency would give
health emergency needs clarification. Protection of volunteers, particularly in the health care area, under the Emergency Management Act,
The Minnesota Good Samaritan Law in § 604A.01
the Good Samaritan Law, and the recent Federal
provides immunity to volunteers “at the scene of an
Volunteer Protection Act is less than cle ar and
emergency or during transit to a location where
the possible liability exposure deters some skilled
professional medical care can be rendered.” It also
professionals from signing up to volunteer, or
excludes from the definition of “the scene of an
work outside their customary job assignments, in
emergency” hospitals, clinics, and other health care
the event of a public health emergency.
offices. Since in a public health emergency it may
be that volunteer help is most needed by large
Liability protections afforded Minnesota state
numbers of ill or injured seeking aid at hospitals,
employees by Minn. Stat. § 3.736 and local
clinics, and other health care offices, the current
government employees by Minn. Stat. Ch. 466
Good Samaritan Law would not provide adequate
appear sufficient to protect those employees while
liability protection for health care volunteers. Other
performing their regular duties or specially assigned
states have Good Samaritan laws that focus not on
tasks during a public health emergency. Although
the chance event of where a provider volunteers
§12.35, subd. 2, of the Minnesota Emergency
emergency care, but on whether that care is
Management Act appears on its face to give similar
provided in the ordinary course of paid practice.2
protection to private sector “emergency response
personnel, while activated by the state,” its
Finally, the Federal Volunteer Protection Act (42
application in a public health emergency is not
U.S.C.A. § 14503) appears to offer some protection
clear. As explained by the Department of Public
for volunteers assisting nonprofit or governmental
Safety, this provision was enacted before general mutual aid statutes to deal with a narrow issue of
1 See, e.g., Wash. Rev. Code Ann. §§ 4.92.130 et seq.
assuring that fire departments trained to respond to
2 Colo. Rev. Stat. Ann. § 13-21-108; Mass. Gen. Laws Ann.
nuclear power plant fires could assist at other such
entities. It was enacted in 1997 and was driven by
Homeland Security Act for application to
liability claims against Little League coaches and
other volunteers for children’s programs. It was
particularly the liability concerns of the
intended to provide a floor of protection, to which
the states could add. There has been little court
interpretation of the act, and critics have questioned
whether its protection is meaningful since a suit can
3. MDH should request funding for a study on
still be brought against the entity whom the
potential unmet needs in paying costs for
volunteer is assisting, and that entity may be able to
acute care in a public health emergency.
add the volunteer back to the suit as a third-party
MDH recognizes that it is essential to take
advantage of all possible sources of health care
services in the event of a catastrophe that
overwhelms the capacity of our health care system.
Providers who would be acting outside their
customary fields of practice, and perhaps in
makeshift settings lacking usual medicines and
support facilities, have legitimate concerns.
Volunteer programs, such as the new federal
Medical Reserve Corps, likewise have legitimate
The areas of liability, legal immunities, and
malpractice insurance coverage are outside the core
discussions involving health plans, hospitals,
providers, and their insurance carriers about
Dangerous facilities and materials
immunity and compensation. Input is needed
Underwriting Association established by the
Dangerous facilities include buildings or locations
Legislature to deal with unusual risks, and
contaminated with a known or unknown substance
the state, county, and city attorneys who
that can cause immediate or long-term hazards. An
have had the duty of protecting the public
example would be a movie theater in which a
against tort claim actions. The trial lawyers
chemical spill of chlorine occurred. For the
purposes of an infectious disease, it would be a
plaintiffs should also participate in these
building (private or public, and may include as
medical facility) in which organisms are present in
solutions, and need for legislative or other
such a way that disease transmission can occur.
Dangerous materials for an infectious disease event
can include things such as bed linens, contaminated
legislative activity and interpretations of the
medical supplies and equipment or moveable
objects in or on which biological organisms are
Control of medical supplies and facilities
present in such a way that disease transmission can
occur. These materials may also include chemical
agents prepared expressly as a chemical weapon or
Medical supplies are under the control of and
intentional releases of chemical agents from
responsibility of the health care provider system.
industrial facilities and radiation sources.
Most facilities use a “just-in-time” form of
inventory—meaning they have about two days
worth of supplies on hand as a means of keeping
Current Chapter 12 law addresses hazard mitigation
storage costs down. Most health care facilities also
have limited specialized equipment or rent
Management to develop a comprehensive hazard
equipment from equipment supply houses. Chapter
mitigation plan in coordination with federal and
402 defines medical supplies as: “any medication,
local plans. The MEHPA extends the provisions for
durable medical equipment, instruments, linens, or
managing dangerous facilities and materials to a
any other material that a health care provider deems
national security or peacetime emergency declared
not essential for the continued operation of the
due to a public health emergency. This extension
provider's practice or facility. The term medical
assures the authority and clarity of implementation
supplies does not apply to medication, durable
that may be needed to protect humans, animals,
medical equipment, or other material that is
plants, buildings, supplies and the environment
personal property being used by individuals or that
from biologic agents. Terrorism requires the
has been borrowed, leased, or rented by individuals
planning process to consider new concerns and
for the purpose of treatment or care.”
previously un-considered agents or exposures and to
Medical facilities include hospitals, clinics, nursing
homes, urgent or surgical care centers, home care
agencies, stand-alone laboratories, and specialist
4. The Minnesota Departments of Pollution
providers—such as physical therapy clinics. These
Control, Public Safety and Health should
facilities are required to meet national and state
requirements for patient safety, documentation of
information, plans, protocols, training and
patient care, monitoring of employee actions, and
exercises for state and local agencies to
other means to assure patient quality of care.
Chapter 402 defined facility as “any real property,
possible range of radiological, chemical, and
building, structure, or other improvement to real
property or any motor vehicle, rolling stock,
watercraft, or other means of transportation. Facility
does not include a private residence.”
disposal procedures. These agencies should
also review and modify hazardous material
protocols to assure worker safety in all
Access to necessary medical supplies can be a
matter of life or death. Since the original planning
for the MEHPA, the Centers for Disease Control
and Prevention have implemented a National
5. These same state agencies should do tabletop
Pharmaceutical Stockpile (NPS), a national
and field exercises to test their plans and
repository of life-saving pharmaceuticals and
identify additional protocols and training
medical supplies that can be delivered to the site of
a chemical or biological terrorism event. The NPS
is composed of pharmaceuticals, vaccines, medical supplies, and medical equipment to augment depleted state and local resources used in responding to terrorist attacks and other emergencies. The NPS will typically arrive by air or
ground in two phases. The first phase shipment is
eight regions with each region planning to manage
called a “12-hour Push Package.” It is called this
an influx of 500 patients. Additional statutory or
because it will arrive in 12 hours or less; a state
procedural action should be based in information
need only ask or “push” for help; and it contains a
about supplies and facility needs generated from
complete package of medical materiel. CDC will
transfer authority for the NPS materiel to the state
and/or local authorities once it arrives at the airfield.
State and/or local authorities will then repackage
and label bulk medicines and other NPS materiel
Public Safety and the National Guard, and
according to their own terrorism contingency plans.
local public health agencies should update
and clarify procedures and manpower needs
The NPS is deployed upon a request from the
Governor for the assets based on the possibility and
National Pharmaceutical Stockpile as well as
confirmation of a biological or chemical terrorism
incident. (Source: Volume Two: Homeland Security, A Governor's Guide to Emergency Management, NGA Center for Best Practices, Chapter 5: The
7. The Hospital Preparedness Grant program
should identify health care system concerns
Currently, the declaration of a national security or
implementation of the state emergency operations
locations for patient care, including the
plan. The description of supply management can
special needs of people with disabilities.
include the commandeering, distribution,
compensation for, and management of supplies,
8. MDH and local public health agencies should
including medical supplies needed for responding to
work with hospitals to use tabletop and field
a public health emergency within the constraints of
the exclusions described in Chapter 402.
facilities caring for victims of a public health
Medical facilities operate within a complex system
of regulations, requirements, standards of care and
tradition. In the event of a public health emergency,
Limiting public gatherings and transportation
a hospital or other health care facility may become
the center of a community’s response, may be a
partner in a regional response, or may be providing
Public gatherings could mean workplaces, schools,
generalized care while other facilities manage
shopping centers, movie theaters, places of worship
victims of the public health emergency. In the event
or other locations where people share air space.
of a large-scale event where thousands of
Limiting could mean recommendations that
individuals are affected, alternative locations to
individuals with compromised immune systems
provide care may be needed to house injured, ill, or
(people with HIV or AIDS, cancer, and transplant
infectious patients. Chapter 12 provides the
patients who are taking certain immunosuppressive
governor with the authority to commandeer and
drugs, and those with certain inherited diseases)
compensate for private property necessary to care
avoid contact with large groups of people. It could
also mean closing some, many or all the possible
places where any groups of people gather.
Since the original bill was proposed, the Health
Resources and Services Administration of the
Transportation means any form of movement of
Department of Health and Human Services granted
people or vehicles—including planes, trains,
federal funds to improve hospital preparedness for
terrorism events. The state has been divided into
Chapter 12 as amended by Chapter 402 authorizes
the Governor to direct the conduct of persons in the
9. The Minnesota Departments of Health and
state and the movement and cessation of movement
of pedestrians vehicular traffic and all forms of
protocols and public information materials
private and public transportation during, prior, and
for limiting gatherings or transportation using
subsequent to drills or actual emergencies.
10. MDH and local public health agencies should
Limiting public gatherings can be an effective
use tabletop and field exercises to evaluate
preventive measure for diseases that are transmitted
the effectiveness of these protocols to protect
through the air—especially for diseases that are
the public’s health and safety while assessing
transmitted by individuals with no symptoms.
the impact on individual or group rights.
Often, public health experts recommend limiting
exposures to others—such as frequently occurs
Medical examinations, testing, collecting
during influenza season. There is a big difference
laboratory specimens and samples
between recommending limited public gatherings
and enforcing a more specific and uniform
requirement. In making a decision to close
Medical examinations to review symptoms,
gathering places, the impact on economy,
exposure, medical history, physical signs, and level
education, and access to food/water/other
of illness are important to diagnose the disease and
necessities needs to be balanced with the ability to
to manage an individual’s health care. Results from
effectively protect the public through such means.
these examinations are also critical to the public’s
Limiting public gatherings may also function as
health when the information from one patient is
“reverse quarantine” in which individuals who have
combined with information from all other affected
not been exposed to a communicable disease are
patients to evaluate what is known about
asked to stay home or otherwise limit their exposure
transmission, to determine strategies to prevent
to others who may be carrying a communicable
further transmission, determine whether treatment
disease. This technique was an important strategy in
protocols are effective and provide guidance for
preventing transmission of influenza in 1918 and in
care of future patients. Often, additional questions
about types or length of exposure, travel history, or
food intake are needed to complete the picture of
Limiting transportation can be an important
component of preventi ng transmission of air-borne
disease in several ways. Individuals with the disease
Laboratory testing for infectious diseases varies by
can expose others in planes, trains, or buses through
disease but frequently consists of testing body
the limited air space of such vehicles. Individuals
fluids: blood, sputum, cerebrospinal fluid, etc.) for
with the disease can use various types of
the presence of the organism or evidence of the
transportation to move to other parts of the
body’s efforts to fight the infection. Testing may
community state, nation, or world and either
also include other measures such as x-rays,
intentionally or inadvertently expose others during
neurological exams or tissue biopsies. Laboratory
their travel or at their destination. The Governor has
testing to identify the causative organism is
used the power to limit transportation in some
important for diagnosis and treatment of an
previous emergencies by closing roads because of
individual patient. Public health laboratory testing
flooding or chemical spills. It is not certain how
goes further to not only confirm the identity of the
widespread transportation limitations would need to
organism but also identify the “DNA fingerprint” of
be to have an effect. On the other hand, it may be a
that organism. Such information can be used to find
critical tool to prevent individuals from leaving the
a common cause of the outbreak and can be the
state during an evaluation of a possible disease or
basis for prevention or control strategies.
A mentally competent adult individual can make
choices about the kind and amount of health care
surrounding states and bordering Canadian
services he or she chooses. For example an adult
provinces to coordinate approaches to these
can consent to surgery or decline, take medications
issues and to determine w hat resources are
for a particular disease or decide to let nature take
available just beyond our borders to help
its course, follow a health care provider’s
recommendations on methods to reduce symptoms
of disease or injury or decide to wait it out. As long
Isolation and quarantine and due process
as that choice doesn't impact others, the decision is
protections
a private matter. However, when that choice has an
affect on the health status of others, there are
limited occasions when government intervenes. A
Isolation means separation, during the period of
primary example is that of a minor child with a life-
communicability, of a person infected with a
threatening condition. Government has intervened
communicable disease, in a place and under
to require surgery, blood transfusions, and other
conditions so as to prevent direct or indirect
treatment when the life of a child is in danger.
transmission of an infectious agent to others. It may
Similar intervention is possible for mentally
mean extremely limited contact with an ill person
who is diagnosed with or suspected of having a
communicable disease. The isolation can occur in a
During a public health emergency, particularly one
hospital setting in a negative airflow room (prevents
caused by terrorism, a number of difficult situations
potentially contaminated air from going back into
around medical examinations and testing may
the hospital) for very infectious airborne diseases.
develop for which a legal or procedural process or
Isolation usually requires health care providers and
protocol is not immediately evident or easy.
visitors to use clothi ng protectors, masks or
Generally, individuals with a serious illness want
respirators, goggles and gloves as a means of
health care providers to conduct tests, take
protecting the visitors but also to protect the patient
specimens, and do everything possible to accurately
from exposure to new diseases that their weakened
diagnose and therefore better treat the person. The
immune system may not be able to overcome.
original Emergency Health Powers Act introduced
at the start of the 2002 session mandated tests and
Quarantine means restrictions, during or
evaluations during a public health emergency. That
immediately prior to a period of communicability,
part of the bill was not included in the final law that
of activities or travel of an otherwise healthy person
who likely has been exposed to a communicable
disease. The restrictions are intended to prevent
At this time, we are uncertain how important this
disease transmission during the period of
comprehensive government power is to prevent
communicability in the event the person is infected.
disease spread. We are certain, however, that it is a
This period is commonly known as the “incubation”
significant restriction on individual rights.
period of a disease. This means they have been
exposed to an individual with a communicable
disease and may be developing the disease as well.
11. MDH and local public health should use
Some diseases are not communicable until
tabletop and field exercises to identify
problems and solutions related to testing, to
communicable for hours or days before the person
shows any signs of the disease. Quarantine can be
accomplished by a variety of means including
having the person stay in their own home and avoid
methods to inform individuals of their rights
contact with others (including family members) to
to refuse testing and treatment that are
having the person or group of persons stay in a
practicable in a public health emergency.
designated facility, to restricting travel out of an
Quarantine : Since individuals in quarantine are not
likely to be ill and their future status somewhat
uncertain, the decision to impose quarantine is more
controversial. The process for quarantine and the
Isolation: The MEHPA details the due process
standard of proof is similar to that of isolation. A
protections for a person determined to have a
further distinction from isolation is the number of
communicable disease that is caused by a living
people affected. For every person determined to
organism or virus believed to be caused by
have the disease, a much larger number of persons
bioterrorism or by a new or novel or previously
are likely to have been exposed to the individual.
controlled or eradicated infectious agent or
The MEHPA provided extensive and prompt due
biological toxin and that can be transmitted person
process provisions, but there are many procedural
to person, (with exclusion of diseases transmitted
predominantly through sexual contact, contact with
Commissioner’s temporary hold order would work,
blood, or direct or intimate skin contact) and for
whether the timelines in statute are adequate, in
which isolation is an effective control strategy. The
which situations would home quarantine be
Commissioner of Health or delegated local board of
adequate and effective and how to provide for
health can request the court to order the person to
groceries and other essential needs of home-
stay in isolation for up to 21 days. The court uses
quarantined persons. A further need is the issue of
the standard of probable cause to determine whether
mental health and the anxiety people will face in
to grant the order. The individual has the right to
being told they or their immediate family member
request a hearing at any time during the period of
isolation regarding the need for isolation and the
conditions under which the isolation is being
managed. The individual subject to a court order
must receive competent medical care, means of
13. MDH and local public health agencies
outside communication and other basic necessities.
should include approaches to isolation and
quarantine in state and local public health,
When the time to obtain a court order would
hospital and first responder exercises to
significantly jeopardize the ability to contain the
identify and clarify roles and procedures in
disease, the Commissioner can issue a temporary
order and then must seek a court order within 24
hours of the temporary order. The temporary order
option cannot be delegated to local boards of health.
The individual in isolation is likely to be quite ill
General’s office should develop step-by-step
and the need for isolation may be obvious and the
procedural protocols for how the isolation
patient may be very willing to be in isolation to
and quarantine orders will be carried out
protect family, friends and health care providers. A
with clarity about who’s responsible for
few individuals may not either see the need for
each of the steps, including enforcement.
isolation or have various reasons they believe they
These protocols should include methods to
cannot comply with the isolation recommendation.
rapidly obtain services of interpreters,
Significant procedural questions include how to
including sign language interpreters, and
restrain individuals who are diagnosed or likely to
be diagnosed with the disease before the temporary
hold and assistance from local or state law
substantive rights of persons subject to the
enforcement is obtained, or whether the court order
should be sought for all individuals with a particular
disease or only for those who express concerns or
15. MDH and the Attorney General’s office
opposition to the isolation recommendation.
agreements with interested local public health agencies for managing the court order
process for isolation and quarantine to be
medical history. There are some diseases for which
an antibiotic is not effective or only partially
effective or for which the orga nism has become
16. MDH should gather information from other
resistant. Other forms of treatment are supportive—
states and Canadian provinces about their
assisting the body with breathing, taking in
planning, rules, statutes, and protocols in
nourishment and fluids or pain control—while the
this area. In particular how the states and
body's systems work to fight off the infection.
provinces immediately adjoining Minnesota
address these issues should be understood
and ideally should be similar as differences
The original version of the MEHPA included
in approaches will lead to confusion and
language about requiring individuals to submit to
reduce the public health benefit of particular
vaccination or treatment. This provision was not
recommendations or actions for isolation or
included in the final law that was passed. The
Minnesota childcare and school immunization law
has always included an exemption for medical
17. MDH should gather information on the
reasons and for religious (later changed to
enhanced internal quarantine powers granted
the federal government in the Public Health
Security and Bioterrorism Preparedness Act
A mentally competent adult individual can make
of 2002, and coordinate Minnesota’s efforts
choices about the kind and amount of health care
services he or she chooses as was described in the
medical examinations, testing, collecting laboratory
Vaccination and treatment
specimens and samples section. As long as that
choice doesn't impact others, the decision is a
private matter. However, when that choice has an
Vaccination means the administration of a small
affect on the health status of others, there are
amount of a killed or live disease organism or virus
limited occasions when government intervenes. A
that stimulates the body’s immune response to be
primary example is that of the school immunization
prepared so that when the body is exposed to the
law. However, it is critical to point out the current
disease, it can rapidly fight off the disease or reduce
the seriousness of the disease. Some individuals are
immunizations or documentation that the individual
allergic to the components of the vaccine or
declines one or more immunizations. The law does
otherwise have a reaction that would prohibit their
not require an individual to be immunized. There is
use of the vaccine. Some individuals, whose
also no similar requirement for accepting treatment,
immune systems are compromised from diseases
except in certain conditions involving life-
such as HIV or taking chemotherapy for cancer, are
threatening conditions for minor children or
not recommended to receive some vaccines.
Vaccines go through several years of trials to
determine effectiveness and safety and are licensed
Requiring submission to certain medical treatments
at the national level following the trials and
involves balancing individual rights with benefits to
reviews. Vaccination is especially important for
the broader community. An alternative that is
those diseases caused by viruses, as antibiotics are
currently provided by the MEHPA is the ability to
not effective treatment for viruses. Some of those
prevent transmission of a communicable disease by
diseases include smallpox and influenza.
an individual who chooses to avoid immunization
or treatment. Isolation or quarantine provides the
Treatment for an infectious disease caused by
safety net for the health of the broader public in this
bacteria usually is an antibiotic that kills the
situation. We believe there is strong consensus that
organism. The type and dosage of the antibiotic will
the benefits of some form of mandatory vaccination
depend on the organism and the characteristics of
or treatment are far outweighed by the impact on
the person—age, size, allergic response, and
A related challenge is that of rapidly and securely
Merriam Webster Medical Dictionary (1997)
managing information about who has received
communicable disease : an infectious disease
vaccination or treatment for a particular disease. In
transmissible (as from person to person) by direct
a time of shortage, this capability becomes even
contact with an affected individual or the
more important to avoid wasting limited supplies. It
individual's discharges or by indirect means (as by a
may also be critical to track effectiveness of a
particular vaccine or treatment or for monitoring
production lots of medical supplies for problems
and for side effects of these interventions.
communicable disease : a disease the causative
agents of which may pass or be carried from one
person to another directly or indirectly. Modes of
18. MDH and local public health agencies
transmission include (1) direct contact with body
excreta or discharges from an ulcer, open sore, or
respiratory tract; (2) indirect contact with inanimate
objects such as drinking glasses, toys, bed clothing,
vaccinations or treatment that may limit
etc.; (3) vectors-flies, mosquitoes, or other insects
Evaluate the protocols for isolation and
Dorland's Illustrated Medical Dictionary (2002)
communicable disease , an infectious disease
transmitted from one individual to another, either by
direct contact or indirectly by means of a vector or
fomites; the terms communicable and contagious
The discussions at the legislature and in the study
treatments that can support critical public
meetings identified concerns about a broad term
health functions by sharing information in a
that could be used without limits that could
adversely affect people for whom isolation or
quarantine was ordered. The compromise that
Definition of communicable disease
emerged in the final bill used a tightly crafted
definition of communicable disease. The issue may
not be so much about the definition as in using the
term “communicable disease” to apply to this
communicable disease in the section applying to
section. An alternative term such as “airborne
isolation and quarantine. Communicable disease
transmissible disease” may solve the discomfort of
“means a disease caused by a living organism or
health care providers concerned about the current
virus believed to be caused by bioterrorism or by a
definition of communicable disease in statute that is
new or novel or previously controlled or eradicated
in conflict with usual medical terminology and
infectious agent or biological toxin and can be
address the concerns of others that the isolation and
transmitted person to person and for which isolation
quarantine provisions would be applied too broadly.
is an effective control strategy, excluding a disease
that is directly transmitted as defined under section
144.4172, subdivision 5” (a disease predominately
20. MDH should propose changing the term
transmitted sexually; through contact with blood; or transmitted through direct or intimate skin contact).
Statutes 144.419, subd. 1 (2) to “airborne
transmissible disease”. This issue should be
explored with the Board of Animal Health to
Other definitions of communicable disease include:
identify and potential points of confusion. Enforcement methods for assuring compliance
Another type of enforcement dilemma is that raised
with emergency measures and measures to detect
by isolation and quarantine orders. The court order
and prevent the spread of disease
will describe the type of force and level of
enforcement to be used by peace officers. Such
enforcement for this type of problem will need to be
balanced with attention to safety precautions and
individual, group or traffic movement from one area
personal protective equipment for individuals
to another through roadblocks, placement of peace
officers to re-direct traffic or pedestrians, or
physically restraining an individual from entering or
During an emergency, the governor's declaration
leaving a certain location. Effective enforcement to
would need to be specific about what, if any,
assure compliance with emergency measures relies
enforcement measures are necessary. Current
on the awareness and knowledge of persons
declarations may provide some direction in this area
authorized to take action during an emergency.
and will be explored. In addition, issues and
problems identified in tabletop and field exercises
Enforcement measures for detecting and preventing
the spread of disease may arise during such routine
matters as reporting a diagnosed or suspected case
of infectious disease, cooperating with an
21. MDH should work with sponsors of local,
investigation to gather information about the
regional and statewide exercises to include
possible causes and transmission of a disease, or
following recommended procedures for preventing
challenges and report problems, suggested
further transmission, such as isolation or quarantine.
solutions and alternatives to the state. MDH
should also confer with bordering states and
The order for declaring a national security or
peacetime emergency due to a public health
emergency would address any unusual or special
enforcement measures—such as one recommending
disease rules to assure they are up-to-date on
only emergency traffic in certain areas of the state.
For enforcement measures regarding compliance
23. MDH should review current Division of
with measures to detect and prevent the spread of
disease, there is less certainty and experience to
draw on. Current law requires licensed health care
providers and entities to report certain
solutions that could be used in a public
Department of Health. There is no specified legal
consequence for not reporting. Newly developing
24. MDH should work with tribal governments,
communication tools, training, and proposed
modifications to the communicable disease
representatives of peace officers to develop
reporting rule can assist in removing barriers to
training materials and work with local public
effective reporting. Whether enforcement or
health and others to provide training to
consequence measures for failure to report would be
peace officers about enforcement issues for
useful is a matter of some debate. On one hand, it
would stress the importance of this requirement. On
the other hand, it may cause considerable duplication of efforts to assure reports are filed and increased tension with the private health care system who believe they are already in compliance.
Effectiveness of fluoroquinolones and other
other agents designed to cure or prevent infections.
antibiotics
The bacteria survive and continue to multiply
causing more harm. Widespread use of antibiotics
Ciprofloxicin or “cipro” is a form of the family of
promotes the spread of antibiotic resistance. While
antibiotics known as fluoroquinolones. Cipro
antibiotics should be used to treat bacterial
became a household word in the fall of 2001
infections, they are not effective against viral
because of its use during the anthrax outbreak on
infections like the common cold, most sore throats,
the East coast. Thousands of individuals who
and the flu. (CDC Web Site, “Promoting
worked in buildings in which the contaminated
Appropriate Antibiotic Use in the Community”
letters were distributed, postal workers who may
Division of Bacterial and Mycotic Diseases, August
have come in contact with the letters or the sorting
machines, and others who may have had exposure
http://www.cdc.gov/drugresistance/community/)
to the anthrax spores were recommended to take the
The growth of antibiotic resistance has prompted
The characteristics of the bioterrorism agent or of
calls to reduce unnecessary antibiotic use and to
the new or novel infectious agent that is the cause of
improve treatment protocols to maximize the
a public health emergency will determine the type
lifespan of these drugs. Since antibiotics can be
of antibiotics or other medications that can be useful
important to treating diseases in humans and
for either treatment or prevention. Some common
animals, this approach needs to apply to antibiotic
antibiotics that would be indicated for the Category
use whether the patient is a human or an animal.
A bioterrorism agents are listed in the table below:
The “Preserving Antibiotic Effectiveness” meeting
Biologic Preventive Treatment
described in Appendix H highlighted a variety of
antibiotic antibiotic
activities taking place at the Minnesota Departments
of Health and Agriculture, the Minnesota Board of
Animal Health, University of Minnesota, Minnesota
Antibiotic Resistance Coalition, and food animal
producers to increase awareness of the problems of
antibiotic resistance and methods to prevent it.
Federal agencies and Congress have also taken
steps to address antibiotic use and misuse.
Regulation of food production occurs at the national
level and independent state action is therefore
The combined efforts of the Minnesota Departments
of Health and Agriculture led to research
information on antibiotic resistance in chickens.
This study3 was part of the rationale used by the
Food and Drug Administration to recommend
changes in antibiotic-containing feeds designed for
poultry that could be linked to increases in
antibiotic resistant disease in humans. This is an
example of the significant impact targeted studies
Antibiotic use promotes development of antibiotic-
3Smith KE et al. 1999. Quinolone-resistant Campylobacter
resistant bacteria. Antibiotic resistance occurs when
jejuni infections in Minnesota, 1992-1998. New England
bacteria change in some way that reduces or
eliminates the effectiveness of drugs, chemicals, or
and attention to sharing the results with policy
27. MDH and others working on antibiotic
resistance issues should continue to provide
Minnesota specific information to national
The participants in the October 28, 2002 meeting
discussed current activities and possible additional
actions. While there were many perspectives and
Impact of recommendations on constitutional
concerns expressed, there was agreement that
and other rights of citizens
continued efforts to increase awareness of this
problem for patients, health care providers
(including veterinarians), animal producers and the
The Bill of Rights from the United States
Constitution and Article I, Bill of Rights from the
Minnesota Constitution are in Appendix K. Those
25. MDH should continue collaborative efforts
rights of particular relevance to emergency health
with other state agencies, provider groups,
and coalitions to coordinate Minnesota efforts in research and surveillance of
U.S. Constitution
antibiotic resistance and to educate providers, and the public about the issue of
antibiotic resistance and appropriate uses of
law…prohibiting the free exercise [of religion]…or
the right of the people peaceably to assemble, and to
information to groups such as the Veterinary
petition the Government for a redress of grievances.
School, Board of Animal Health and professional veterinary associations about
Amendment IV The right of the people to be secure
in their persons, houses, papers, and effects, against
antibiotic-resistant foodborne pathogens for
unreasonable searches and seizures, shall not be
their use in educating food producers. The
violated, and no Warrants shall issue, but upon
MDH should provide information to groups
probable cause, supported by Oath or affirmation,
such as the medical schools, health care
and particularly describing the place to be searched,
providers, professional medical associations
and the public about the human health consequences of over-prescription, improper
Constitution, of certain rights, shall not be
antibiotics, and the consequences of the
construed to deny or disparage others retained by
spread of antibiotic-resistant pathogens in
Amendment X The powers not delegated to the
26. MDH should continue to conduct monitoring
United States by the Constitution, nor prohibited by
of human disease and antibiotic resistance
it to the States, are reserved to the States
and make information available to provider
groups, policy makers and the public. MDH should collaborate with animal health
Minnesota Constitution Article I BILL OF
evaluate potential animal sources of antibiotic resistant bacteria for humans.
Sec. 2. RIGHTS AND PRIVILEGES. No member
MDH should collaborate with human health
of this state shall be disfranchised or deprived of
groups such as the medical schools, health
any of the rights or privileges secured to any citizen
thereof, unless by the law of the land or the
associations to evaluate potential human
sources of antibiotic resistant bacteria.
Sec. 8. REDRESS OF INJURIES OR WRONGS.
1. Right to assemble, including right to
Every person is entitled to a certain remedy in the
attend worship services. Included in both
laws for all injuries or wrongs which he may
receive to his person, property or character, and to
obtain justice freely and without purchase,
includes a clause that prohibits practices that
completely and without denial, promptly and
are inconsistent with the peace or safety of
Sec. 10. UNREASONABLE SEARCHES AND SEIZURES PROHIBITED. The right of the
people to be secure in their persons, houses, papers,
transportation or movement of individuals or
and effects against unreasonable searches and
groups of people during the emergency. The
seizures shall not be violated; and no warrant shall
emergency needs to state the nature of the
issue but upon probable cause, supported by oath or
limitations and the reasons and duration of
affirmation, and particularly describing the place to
the limitation. This so-called “reverse
be searched and the person or things to be seized.
quarantine” was credited with limiting the spread of the Spanish Influenza in the 1918
Sec. 13. PRIVATE PROPERTY FOR PUBLIC USE. Private property shall not be taken, destroyed
Minnesota. Philip D. Jordan, The People’s Health
Minnesota Historical Society, 1953 pp. 410 to 415
compensation therefore, first paid or secured.
Supporting susceptible populations to avoid contact with others can be an important
Sec. 16. FREEDOM OF CONSCIENCE; NO
strategy to prevent harm to individuals who
PREFERENCE TO BE GIVEN TO ANY
have not been exposed to an infectious agent
RELIGIOUS ESTABLISHMENT OR MODE OF WORSHIP. … The right of every man to
worship God according to the dictates of his own
2. Unreasonable se arch and seizure, and
conscience shall never be infringed;… nor shall any
security of homes and possessions. In
control of or interference with the rights of
conscience be permitted,…but the liberty of
conscience hereby secured shall not be so construed
identify the source and related transmission
as to …justify practices inconsistent with the peace
issues, or to determine methods to contain
the spread of an infectious agent, the commissioner may need to gather human
A comprehensive list of constitutional and other
described earlier, an individual may refuse
rights of citizens on which there is total agreement
is not easy to assemble. In this report, attention is
given to rights that are particularly related to the
reasonable cause to obtain a warrant for
declaration of a public health emergency and those
issues that were identified during the various
meetings and discussions of emergency powers.
Additional issues are likely to be identified in more
Limitation of powers prohibits the governor
detailed planning. Attention to this issue will be
or the director of the division of emergency
critical to gaining support and compliance from the
public for whose protection the emergency is
otherwise requiring any person to appear
before any person or to produce any records
for inspection by any person, or to examine
The issues center around five main points:
any person under oath. However, the Commissioner of Health has subpoena
power in the event of a serious “health
threat” Minnesota Statutes Section 144.054.
rights during a public health emergency and
3. Other rights not specifically identified and deprivation of those rights can only be
considered with specific reference to law.
30. MDH should monitor, and comment when
Although this element is difficult to analyze,
since it is so broad. Privacy of health data
would certainly be one important concern.
powers granted in the Public Health Security
and Bioterrorism Preparedness Act of 2002.
necessary for the commissioner or the governor to clearly state the need for and the scope of the action to be taken to assure they are “reasonable under the circumstances”
4. Entitlement to redress for wrongs.
Nothing in the emergency powers of the state takes away individual rights to sue the government or an agent of the government for redress of wrongs. Again, the standard of “reasonable under the circumstances” would be used to balance the rights of an individual and the public good to determine if any remedy is required. The new federal Homeland Security Act appears to provide some restrictions on tort claims during the DHHS Secretary’s emergency declaration period.
5. Compensation for use of private property.
Minnesota Statutes 12.34 subd. 2 describes the process of compensation in that the owner of commandeered property must be promptly paid just compensation for its use and all damages done to the property while so used for emergency management purposes. It includes an appeal process.
28. MDH should work with the Commissioner's
Task Force on Terrorism and Health to review reports from state, regional and local tabletop and field exercises to explore issues of constitutional and other rights that may arise in a public health emergency.
29. MDH should meet with representatives of
various civil rights and other citizen groups, special populations such as disability organizations, and interested individuals
Summary of public comments received during the required public comment period For the complete set of comments, please see Appendix M. The following is a summary of the comments received during the comment period from December 16 to January 17, 2002. Comments were received in two main areas: 1) antibiotic resistance and preserving effectiveness of antibiotics
Minnesota Veterinary Medical Association
Broiler and Egg Association of Minnesota
Recommended including language that addresses human use of antibiotics and efforts to limit over-prescription or non-judicious use through collaboration with human health groups and public education. 2) civil liberties issues
Recommended additional legal analysis of the specific constitutional standards that the State is required to meet with respect to civil liberties affected by the Minnesota Emergency Health Powers Act.
Appendices
A. Commissioner's Task Force on Terrorism and Health Contact list B. Minnesota Statutes 2002 Chapter 402 - Minnesota Emergency Health Powers Act C. The Minnesota Emergency Health Powers Act Information Brief, Minnesota House of
D. Terrorism and Health Task Force comments on draft report and recommendations E. Homeland Security Advisory Council Membership F. Agenda and Summary of Working Conference on Public Health Emergencies July 18, 2002.
Pioneer Press Article about the Conference
G. Community Health Conference September 13, 2002 Breakout Session H. Agenda and Summary of Antibiotic Effectiveness meeting October 28, 2002 I. Agenda and Summary of Immunity, Liability and Compensation meeting October 31, 2002 J. Legal Glossary of Terms K. United States Constitution Amendments I through X (Bill of Rights) and Minnesota Article I
L. State Register Notice of December 16, 2002 M. Public Comments Received during notice period
Southwest Pediatric Endocrinology, PLC Alvin H. Perelman, MD, MBA Insulin Pump Therapy: Key Treatment Concepts 1) “Basal” and “bolus” terminology: a. Basal insulin is insulin that the pump gives automatically , in hourly increments. Basal insulin replaces the Lantus or Levemir dose that was being given daily (or twice daily). b. Bolus insulin is insulin that is given to cov
We collect the attached information in order to help identify possible hormone deficiencies in your system. All of the symptoms/information that we ask about have a connection to hormones. We understand that some of the questions we ask are personal and sensitive. We can best help you by receiving complete and accurate information. Together, we will develop a treatment plan with the goals of