1 Assessing Legal Preparedness for School Closure in Response to Pandemic Flu or Other Public Health Emergencies James G. Hodge, Jr., J.D., LL.M. Associate.

1

Assessing Legal Preparedness for School Closure in Response to

Pandemic Flu or Other Public Health Emergencies

James G. Hodge, Jr., J.D., LL.M.Associate Professor, Johns Hopkins Bloomberg School of Public

Health; Executive Director, Center for Law & the Public’s Health

Dhrubajyoti Bhattacharya, J.D., M.P.H., Fellow, Center for Law & the Public’s Health

February 22, 2007

The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities

CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights



2

Principal Objectives

The Role of School Closures In Response to Pandemic Flu Terminology U.S. children in schools School closure as prevention mechanism State pandemic flu plans

Center Project Goals and Methodology Major Findings and Conclusions





3

Terminology Meaning and use of the phrase “school

closure” in this presentation School closure generally entails class

cancellation, student dismissal, and/or control of the physical building. Its precise meaning in a particular situation will be determined by the laws of the appropriate jurisdiction.

Alternative meanings Cancellation Evacuation Dismissal

4

School Closures - Examples Inclement weather –

Schools closed in Maryland due to winter storm (February 14, 2007);

Schools closed in Tucson, Arizona because of fog and snow (January 22, 2007)

Violence – School shootings prompt closure in Ohio (December 18, 2003)

Threats to general safety – Phone threats result in school closure in Harrison, New York (March 27, 2001)

Disease outbreaks – Rhode Island Schools closed due to encephalitis

outbreak (January 5, 2007); Maryland School for the Blind closed after the spread of

an unknown virus (November, 2006)

5

U.S. Children in Schools

Over 48 million students enrolled in 98,000 public schools nationwide

Over 6 million students are enrolled in private schools

88% of school-age children enrolled in public schools, including 87% of PreK-8th grade children, and 91% of adolescents enrolled in grades 9-12

Source: National Center for Education Statistics, based on 2003 data





6

School Closure as Prevention Mechanism Increasing social distances among children

may reduce disease transmission (WHO Writing Group 2006)

Modeling analyses suggest that school closure may potentially reduce the incidence rate among children by over 90% (Glass et al. 2006)

School closure is part of a comprehensive U.S. strategy to control the spread of disease as reflected in state pandemic flu plans





7

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT

PR - PR - (Puerto Rico)(Puerto Rico)

HIHIAKAK

Pandemic Influenza Plans and School Closures





Plan recognizes school closure:47

RI

MA

Plan does not recognize school closure:4

8

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK

Pandemic Influenza Plans and School Closures - Legal Authority





RI

MA

Plan does not cite legal authority to closeschools: 42

Plan cites legal authority to closeschools: 9

9

Center Project - Premise The premise is that there is sufficient, clear,

and specific legal authority to close schools in preparation for or response to pandemic flu.

This premise, however, is uncertain. Centers for Disease Control and Prevention

(CDC) requested the Center for Law and the Public’s Health (Center) to prepare a comprehensive analyses of school closure laws nationwide





10

Center Project Goals Assess the laws, regulations, and policies

that authorize school closures for extended periods [up to 12 weeks] at the state and local levels during non-emergencies and declared emergencies;

Identify departments, officials, or other persons authorized to close schools; and

Assess the criteria and potential conflicts among government actors to close schools





11

Existing and Emerging Products Comprehensive tables on:

School Closure Laws (Table 1) Summary of School Closure Law (Table 2) Departmental Authorization for School Closure

(Table 3) Governmental Level of Authority for School

Closure (Table 4) Pandemic Flu Plans and School Closure (Table

5) Case studies, report, scholarship (forthcoming)





12

Methodology - 1

Presumptions Every state has some general public

health powers during non-emergencies that could be used to close schools or other facilities

Every state has broad public health emergency powers to close schools

Every school district/board has some inherent authority to close schools





13

Methodology - 2

Focus of the Center’s Research1. Express, specific authority to close

schools in non-emergencies and declared emergencies

2. For an extended period of time3. In response to an actual or

potential spread of disease or other public health threats





14

Methodology - 3 Rationale for assessing specific legal

authority for school closure:1. To move beyond general authorities (e.g.,

communicable disease laws) and look specifically to express authorizations

2. To pre-identify potential gaps or other impediments to systematic school closure across jurisdictions

3. To limit the potential for conflicts among or within jurisdictions regarding school closure





15

Methodology - 4 Limitations - the Center’s analysis does not

address: The timing or appropriateness of school closure

decisions with respect to the epidemiology of disease transmission, severity, or its potential introduction

The specific legal route to school closure in jurisdictions with multiple options

The accountability of governmental actors in the use (or non-use) of school closure authority in response to actual or potential public health threats





16

School Closures During Non-Emergencies

School closure laws during non-emergencies include provisions that: Expressly authorize school closure due to

disease or epidemic – 17 jurisdictions Authorize school closure to protect the

public’s health – 10 jurisdictions Authorize school closure for other

purposes – 22 jurisdictions





17

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK






Express authorization to close schools due to disease or epidemic: 17

RI

MA

18


Expressly authorize school closure due to disease or epidemic - Ohio

“During an epidemic or threatened epidemic, when a dangerous communicable disease is unusually prevalent, or for any other imminent public health threat as determined by the board [of health], the board may close any school and prohibit public gatherings for such time as is necessary.” R.C. 3707.26A





19

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK






RI

MA

Express authorization to close schools or facilities to protect the public’s health: 10

20


Authorize school closure to protect the public’s health – Idaho

“The Director [of the health department]… may order the closing of any public, parochial, or private school, or other place of public assembly when, in his or her opinion, such closing is necessary to protect public health.”IDAPA 16.02.10.015(5)





21

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK






RI

MA

General authority to close schoolsfor other purposes: 22

22


Authorize school closure for other purposes – Maryland

“The final decision of a local board of education to close a school shall be announced at a public session and… shall include the rationale for the school closing and address the impact of the proposed closing on the factors” MD ADC 13A.02.09.01(A)-(D)





23

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK

Level of Governmental Authorization During Non-Emergencies





RI

MA

State Department: 27

24

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK






RI

MA

County, City, or Local Departments: 37

25

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK






RI

MA

State and County, City, or Local: 14

26

School Closures During Emergencies

School closure laws during declared emergencies include provisions that: Expressly authorize school closure due to

disease or epidemic – 7 jurisdictions Authorize the utilization or closure of

facilities or property – 48 jurisdictions Authorize the evacuation of persons from

threatened areas – 45 jurisdictions





27

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK






RI

MA

Express authorization to close schools due to disease or epidemic: 7

28


Expressly authorize school closure due to disease or epidemic – Wisconsin

“The [school] board may close any school or dismiss any class in the event of an emergency…or epidemic.”

W.S.A. 119.18(6)(b)





29

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK






RI

MA

Authorization to close/utilize facilities or properties (including schools): 48

30


Authorize the utilization or closure of facilities or property – Kansas

The governor may “utilize all available resources of the state government…and utilize any private property if the governor finds such action necessary to cope with the disaster.” K.S.A. §§ 48-925(c)(2), (4)





31

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK






RI

MA

Authorization to evacuate persons from threatened areas (including schools): 45

32

School Closures During Emergencies Authorize the evacuation of persons from a

threatened area – North Dakota

The governor may “[d]irect and compel the evacuation of all or part of the population from any stricken or threatened area within the state if the governor deems this action necessary for the preservation of life or other disaster or emergency mitigation, response, or recovery.”

NDCC 37-17.1-05(6)(e)





33

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK

Level of Governmental Authorization During Emergencies





RI

MA

State Department: 52

34

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK

Level of Governmental Authorization During Emergencies





RI

MA

County, City, or Local Departments: 4

35

Departmental Authorization During Non-emergencies

School closure laws during non-emergencies: Empower the public health department

or a public health officer to close schools – 30 jurisdictions

Empower the education department or a school board/superintendent to close schools - 24 jurisdictions

Empower the emergency management department to close schools – 0 jurisdictions





36

Departmental Authorization During Emergencies

School closure laws during emergencies: Empower the public health department

or a public health officer to close schools – 9 jurisdictions

Empower the education department or a schoolboard/superintendent to authorize school closure – 6 jurisdictions

Empower the emergency management department or Governor to close schools – 51 jurisdictions





37

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK

Departmental Authorization During Non-emergencies – Public Health





RI

MA

Department of Public Health: 30

38

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK

Departmental Authorization During Emergencies – Public Health





RI

MA

Department of Public Health: 9

39

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK

Departmental Authorization During Non-Emergencies – Education





RI

MA

Department of Education: 24

40

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK

Departmental Authorization During Emergencies - Education





RI

MA

Department of Education: 6

41

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK

Departmental Authorization During Non-Emergencies – Public Health & Education





Departments of Public Health and Education: 5

RI

MA

42

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK

Departmental Authorization During Non-Emergencies – Emergency Management





RI

MA

Department of Emergency Management: 0

43

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCT

MEME

DCDC

MDMD

NHNHVTVT


HIHIAKAK

Departmental Authorization During Emergencies – Emergency Management





RI

MA

Governor or Department ofEmergency Management: 51

44

Major Conclusions Explicit authority to close schools during non-

emergencies is lacking in many jurisdictions [24] Multiple departments may be authorized to close

schools [31 – public health; 24 – education; 5 – dual departments]

Wide differentiation of levels of government responsible for closing schools [30 – state; 36 – local; 15 – dual levels]

Major shift of authority to close schools once an emergency is declared

Lack of assessment criteria on the appropriateness of school closure





45

Major Conclusions While there are legal avenues to close

schools in virtually every jurisdiction in non-emergencies and emergencies, variations in legal authority across jurisdictions may lead to: Potential disagreements concerning the

responsibility, timing, and duration of school closures

Consideration or balancing of competing interests

Delays





46

Acknowledgments Many thanks to the following for their

contributions to the research and presentation: Jennifer Gray, J.D., Center

Researcher P.J. Wakefield, Center Administrator





47

For more information . . .

James G. Hodge, Jr., J.D., LL.M.(410) [email protected]

Center website: www.publichealthlaw.net

Thank you!





1 Assessing Legal Preparedness for School Closure in Response to Pandemic Flu or Other Public Health Emergencies James G. Hodge, Jr., J.D., LL.M. Associate.

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