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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

Source: http://www.leg.state.mn.us/docs/2003/mandated/030217.pdf

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