Welcome to the Virginia Social Distancing Legal Consultation Meeting Crowne Plaza Richmond West October 9, 2007.

Welcome to theWelcome to the

Virginia Social Virginia Social Distancing Legal Distancing Legal

Consultation MeetingConsultation MeetingCrowne Plaza Richmond WestCrowne Plaza Richmond West

October 9, 2007October 9, 2007

IntroductionIntroductionDr. Lisa KaplowitzDr. Lisa Kaplowitz

Deputy Commissioner for Emergency Preparedness and Deputy Commissioner for Emergency Preparedness and Response, VDHResponse, VDH

IntroductionIntroduction

Legal preparedness for public health Legal preparedness for public health threats is criticalthreats is critical

Virginia has made important Virginia has made important progress, such as:progress, such as:• 2003: Updated legislation to address 2003: Updated legislation to address

communicable diseases of public health communicable diseases of public health threatthreat

• 2006: Trainings on legal issues and 2006: Trainings on legal issues and pandemic influenzapandemic influenza

Social Distancing Law Project Social Distancing Law Project (SDLP)(SDLP)

To assist states, CDC and ASTHO have To assist states, CDC and ASTHO have implemented a Social Distancing Law Project implemented a Social Distancing Law Project (SDLP)(SDLP)

Phase IPhase I• Comprehensive legal assessment of disease Comprehensive legal assessment of disease

control measures at state and local levelcontrol measures at state and local level• Completed July 2007Completed July 2007

Phase II: Legal Consultation Meeting (LCM)Phase II: Legal Consultation Meeting (LCM)• Purpose: bring together key stakeholders to Purpose: bring together key stakeholders to

further explore legal issues related to public further explore legal issues related to public health emergencies related to communicable health emergencies related to communicable conditionsconditions

Workgroup and Plenary SessionsWorkgroup and Plenary Sessions

In-depth expert discussion with inter-In-depth expert discussion with inter-agency sharingagency sharing

Three workgroups: Three workgroups: • Red/A, Yellow/B, and Green/CRed/A, Yellow/B, and Green/C• See name badge for assignmentSee name badge for assignment

ParticipantsParticipants American Red CrossAmerican Red Cross Association of State and Association of State and

Territorial Health Officers Territorial Health Officers (ASTHO)(ASTHO)

City and County AttorneysCity and County Attorneys Commonwealth AttorneysCommonwealth Attorneys D.C. Department of HealthD.C. Department of Health Local PoliceLocal Police Maryland Department of Maryland Department of

Health and Mental HygieneHealth and Mental Hygiene Metropolitan Washington Metropolitan Washington

Airports Authority (MWAA)Airports Authority (MWAA) SheriffsSheriffs Supreme Court of VirginiaSupreme Court of Virginia US Centers for Disease US Centers for Disease

Control and Prevention (CDC)Control and Prevention (CDC) US Department of Health and US Department of Health and

Human Services (DHHS)Human Services (DHHS)

Virginia Capitol PoliceVirginia Capitol Police Virginia Department of Virginia Department of

Agriculture and Consumer Agriculture and Consumer Services (VDACS)Services (VDACS)

Virginia Department of Virginia Department of EducationEducation

Virginia Department of Health Virginia Department of Health (VDH)(VDH)

Virginia General AssemblyVirginia General Assembly Virginia Hospital and Virginia Hospital and

Healthcare Association Healthcare Association (VHHA)(VHHA)

Virginia National Guard (VNG)Virginia National Guard (VNG) Virginia Office of the Attorney Virginia Office of the Attorney

General (OAG)General (OAG) Virginia Poverty Law Center Virginia Poverty Law Center

(VPLC)(VPLC) Virginia State Police (VSP)Virginia State Police (VSP)

Administrative and Administrative and Safety IssuesSafety Issues

Dr. Christopher NovakDr. Christopher NovakOffice of Epidemiology, VDHOffice of Epidemiology, VDH

Legal Consultation MeetingLegal Consultation Meeting

Materials:Materials:• Situation manualSituation manual• PresentationsPresentations• FormsForms

EvaluationEvaluation Travel reimbursement (if necessary)Travel reimbursement (if necessary)

AdministrationAdministration

Responses are being recorded to Responses are being recorded to facilitate data gatheringfacilitate data gathering• Please use microphones for plenary Please use microphones for plenary

sessionssessions• For response, please state name and For response, please state name and

agencyagency• Decisions are not precedent-setting and Decisions are not precedent-setting and

may not reflect your organization’s final may not reflect your organization’s final position on a given issueposition on a given issue

Safety and ComfortSafety and Comfort

EvacuationEvacuation• RosterRoster• DoorsDoors• Assembly pointAssembly point

RestroomsRestrooms Mobile phones, pagersMobile phones, pagers

• Please turn to silent modePlease turn to silent mode RefreshmentsRefreshments

Purpose, Scope, and Purpose, Scope, and PrinciplesPrinciples

Suzi SilversteinSuzi SilversteinEmergency Preparedness and Response, VDHEmergency Preparedness and Response, VDH

PurposePurpose

Identify and discuss potential Identify and discuss potential enhancements to legal preparedness enhancements to legal preparedness for public health emergencies for public health emergencies resulting from communicable resulting from communicable conditionsconditions

May lead to changes in policy, May lead to changes in policy, procedures, regulation, or law procedures, regulation, or law • Outcomes from 2006 OAG meeting led Outcomes from 2006 OAG meeting led

to specific amendments to VA lawto specific amendments to VA law

Focus for TodayFocus for Today Social distancing and other disease control Social distancing and other disease control

measures, including but not limited to:measures, including but not limited to:• IsolationIsolation• QuarantineQuarantine• Self-shieldingSelf-shielding• CurfewCurfew• Cancellation of public eventsCancellation of public events• Closure of public placesClosure of public places• Travel restrictionsTravel restrictions• Mass prophylaxis/vaccinationMass prophylaxis/vaccination

Also, addressing:Also, addressing:• Communication/cooperationCommunication/cooperation• Declaration of State of EmergencyDeclaration of State of Emergency

ActivitiesActivities

Explore opinions/attitudes on the viability Explore opinions/attitudes on the viability and sufficiency of legal authorities in VA and sufficiency of legal authorities in VA

Identify problems that could arise in Identify problems that could arise in executing social distancing measuresexecuting social distancing measures• Procedural, logistical, ethical, or enforcement Procedural, logistical, ethical, or enforcement

issuesissues Identify additional steps related to legal Identify additional steps related to legal

preparedness that warrant further preparedness that warrant further attentionattention

ScopeScope Can specific action be done (legally) and Can specific action be done (legally) and

degree of confidence that it will prevail degree of confidence that it will prevail during a legal challenge? during a legal challenge?

Who has the authority to order the Who has the authority to order the measure, and how would it be measure, and how would it be accomplished? accomplished?

What are the enforcement challenges that What are the enforcement challenges that must be considered? must be considered?

Are there legal options or alternatives? Are there legal options or alternatives? What are the legal ramifications that must What are the legal ramifications that must

be considered?be considered?• Constitutional rights issues such as freedom of Constitutional rights issues such as freedom of

association, equal protection, and due processassociation, equal protection, and due process

PrinciplesPrinciples

The Situation Manual contains many The Situation Manual contains many issues that have been identified through issues that have been identified through past discussions and exercisespast discussions and exercises

Some are relatively simple – others are Some are relatively simple – others are extremely complexextremely complex

Today’s LCM likely cannot cover all of the Today’s LCM likely cannot cover all of the issuesissues• Address as many issues in as much detail as Address as many issues in as much detail as

possiblepossible• Identify problems/gaps/challenges Identify problems/gaps/challenges

RolesRoles

Players:Players: participate in discussion based participate in discussion based on expert knowledge and experienceon expert knowledge and experience

Group Facilitators:Group Facilitators: moderate moderate discussions and access outside assistance discussions and access outside assistance (clarification on issues, details regarding (clarification on issues, details regarding scenarios)scenarios)

Data Collectors: Data Collectors: gather information and gather information and record the players’ responses record the players’ responses

Observers: Observers: may participate as desiredmay participate as desired

Social Distancing: Social Distancing: Legal AuthorityLegal Authority

Robin KurzRobin KurzVirginia Office of the Attorney GeneralVirginia Office of the Attorney General

Social DistancingSocial Distancing

Governor’s AuthorityGovernor’s Authority• Local Government’s AuthorityLocal Government’s Authority

State Health Commissioner’s State Health Commissioner’s AuthorityAuthority

Governor’s AuthorityGovernor’s Authority

Commonwealth of Virginia Commonwealth of Virginia Emergency Services and Disaster Emergency Services and Disaster Law of 2000.Law of 2000.

Va. Code § 44-146.13 et seq.Va. Code § 44-146.13 et seq.

Governor may declare state of Governor may declare state of emergency.emergency.

Governor’s AuthorityGovernor’s Authority Issue executive orders and proclaim rules for Issue executive orders and proclaim rules for

purposes of emergency.purposes of emergency. Direct and compel evacuation of all or part of the Direct and compel evacuation of all or part of the

populace from any stricken or threatened area. populace from any stricken or threatened area. Prescribe routes, modes of transportation, and Prescribe routes, modes of transportation, and

destination.destination. Control ingress and egress at emergency area, Control ingress and egress at emergency area,

including movement of persons and occupancy including movement of persons and occupancy of premises.of premises.

Va. Code § 44-146.17Va. Code § 44-146.17

Governor’s AuthorityGovernor’s Authority

Executive orders have force and Executive orders have force and effect of law. Violation thereof “shall effect of law. Violation thereof “shall be punishable as a Class 1 be punishable as a Class 1 misdemeanor” if order so states. misdemeanor” if order so states.

Va. Code § 44-146.17Va. Code § 44-146.17

Local Government AuthorityLocal Government Authority When Governor declares a state of emergency, When Governor declares a state of emergency,

each political subdivision within the disaster each political subdivision within the disaster area may, under the supervision of the area may, under the supervision of the Governor:Governor:• Control use, sale, production, and distribution of Control use, sale, production, and distribution of

food, fuel, clothing, materials, goods, services, and food, fuel, clothing, materials, goods, services, and resource systems that do not impact other political resource systems that do not impact other political subdivisions.subdivisions.

• Enter into contracts and incur obligations without Enter into contracts and incur obligations without usual formalities.usual formalities.

• Protect the health and safety of persons and Protect the health and safety of persons and property.property.

• Provide emergency assistance to victims.Provide emergency assistance to victims.Va. Code § 44-146.19 Va. Code § 44-146.19

Local Government AuthorityLocal Government Authority When locality declares an emergency, it may:When locality declares an emergency, it may:

• Control use, sale, production, and distribution of food, Control use, sale, production, and distribution of food, fuel, clothing, materials, goods, services, and fuel, clothing, materials, goods, services, and resource systems that do not impact other political resource systems that do not impact other political subdivisions.subdivisions.

• Enter into contracts and incur obligations without Enter into contracts and incur obligations without usual formalities.usual formalities.

• Protect the health and safety of persons and property.Protect the health and safety of persons and property.• Provide emergency assistance to victimsProvide emergency assistance to victims• If Governor has declared state of emergency, may w/ If Governor has declared state of emergency, may w/

supervision act outside capabilities of local govt.supervision act outside capabilities of local govt.Va. Code § 44-146.21Va. Code § 44-146.21

State Health Commissioner’s State Health Commissioner’s AuthorityAuthority

Orders of Isolation and QuarantineOrders of Isolation and Quarantine

Background: Isolation and Background: Isolation and QuarantineQuarantine

Isolation: separation (for period of Isolation: separation (for period of communicability) of communicability) of known infected known infected personspersons to prevent transmission of an to prevent transmission of an infectious agent.infectious agent.

Quarantine: restriction of activities Quarantine: restriction of activities during the incubation period of during the incubation period of healthy healthy personspersons exposed to a communicable exposed to a communicable disease to prevent transmission.disease to prevent transmission.

Isolation for Communicable Isolation for Communicable Diseases of Public Health Diseases of Public Health

SignificanceSignificance Petition filed in General District Court.Petition filed in General District Court. Designed for one person and for Designed for one person and for

diseases that do not spread rapidly, diseases that do not spread rapidly, such as tuberculosis.such as tuberculosis.

Very “due process heavy.”Very “due process heavy.” No detailed procedure for quarantine.No detailed procedure for quarantine.

Va. Code § 32.1-48.01 to 32.1-48.04Va. Code § 32.1-48.01 to 32.1-48.04

Isolation and Quarantine for Isolation and Quarantine for Communicable Disease of Public Communicable Disease of Public

Health ThreatHealth Threat

Disease of public health threat.Disease of public health threat.• Readily transmittedReadily transmitted• Risk of death or significant injury or impairmentRisk of death or significant injury or impairment• E.g. smallpox, ebola, pandemic flu, pneumonic plagueE.g. smallpox, ebola, pandemic flu, pneumonic plague

Exceptional circumstances or individual does not Exceptional circumstances or individual does not voluntarily comply with Health Dept’s voluntarily comply with Health Dept’s recommendations.recommendations.

Va. Code § 32.1-48.05 - 32.1-48.017Va. Code § 32.1-48.05 - 32.1-48.01712 VAC 5-90-103, 12 VAC 5-90-10512 VAC 5-90-103, 12 VAC 5-90-105

Order of IsolationOrder of Isolation State Health Commissioner issues Order of State Health Commissioner issues Order of

Isolation setting forth:Isolation setting forth:• Identity of person(s) or affected areaIdentity of person(s) or affected area• Site of isolationSite of isolation• Date and time that isolation commencesDate and time that isolation commences• Communicable disease of public health threatCommunicable disease of public health threat• Bases for isolationBases for isolation• Timely opportunities for subject to notify employer, Timely opportunities for subject to notify employer,

family, and attorneyfamily, and attorney• Penalty for noncompliance with order Penalty for noncompliance with order • A copy of Va. Code § 32.1-48.013 re: appealsA copy of Va. Code § 32.1-48.013 re: appeals

Va. Code § 32.1-48.012Va. Code § 32.1-48.012

Order of QuarantineOrder of Quarantine State Health Commissioner issues Order of State Health Commissioner issues Order of

Quarantine setting forth:Quarantine setting forth:• Communicable disease of public health threatCommunicable disease of public health threat• Reasonable notice of order to subjectsReasonable notice of order to subjects• Means by which quarantine implementedMeans by which quarantine implemented• Geographic parameters of quarantineGeographic parameters of quarantine• Duration of quarantineDuration of quarantine• Directions for complianceDirections for compliance• Timely opportunity to notify employer, family, and Timely opportunity to notify employer, family, and

attorneyattorney• Penalties for noncompliancePenalties for noncompliance• Copy of Va. Code § 32.1-48.010 re: appealsCopy of Va. Code § 32.1-48.010 re: appeals

Va. Code § 32.1-48.09Va. Code § 32.1-48.09

Delivery of Order(s)Delivery of Order(s)

Order delivered to person(s) affected in Order delivered to person(s) affected in so far as practicable so far as practicable

If number of persons is too great, If number of persons is too great, Commissioner shall cause order to be Commissioner shall cause order to be communicated to the persons residing communicated to the persons residing or located in the affected areaor located in the affected area

Order remains in place while petition for Order remains in place while petition for ex parte review is pendingex parte review is pending

Ex parte Court Ex parte Court Review of Order(s)Review of Order(s)

Commissioner shall file a petition seeking an Commissioner shall file a petition seeking an ex parte court review and confirmation as ex parte court review and confirmation as soon as practicable after issuing the Order.soon as practicable after issuing the Order.

Petition filed in circuit court in county or city Petition filed in circuit court in county or city where person resides or in the circuit court of where person resides or in the circuit court of the affected area.the affected area.

Petition includes a copy of the order and a Petition includes a copy of the order and a summary of the findings upon which the summary of the findings upon which the Commissioner relied. Commissioner relied.

The Commissioner may file some or all of any The Commissioner may file some or all of any petition under seal.petition under seal.

Va. Code §§ 32.1-48.09, 32.1-48.012Va. Code §§ 32.1-48.09, 32.1-48.012

Court FindingsCourt Findings

The court shall grant the petition to The court shall grant the petition to confirm/extend the order upon finding:confirm/extend the order upon finding:• Probable cause that isolation/quarantine was the Probable cause that isolation/quarantine was the

necessary means to contain the diseasenecessary means to contain the disease• Implementation is in the least restrictive Implementation is in the least restrictive

environment necessaryenvironment necessary

The Court shall give due deference to the The Court shall give due deference to the specialized expertise of the Commissioner.specialized expertise of the Commissioner.

Va. Code §§ 32.1-48.09, 32.1-48.012Va. Code §§ 32.1-48.09, 32.1-48.012

Appeal of OrderAppeal of Order

Person subject to order may file a petition Person subject to order may file a petition for appeal in the circuit court.for appeal in the circuit court.

Person appealing has burden of proving Person appealing has burden of proving that does not need to be isolated or that does not need to be isolated or quarantined.quarantined.

Court shall not conduct de novo review, Court shall not conduct de novo review, but shall consider existing record and but shall consider existing record and supplemental evidence as the court supplemental evidence as the court considers relevant.considers relevant.

Appeal of OrderAppeal of Order Appeal shall not stay order.Appeal shall not stay order. Hearing shall be held within 48 hours. Hearing shall be held within 48 hours.

• In extraordinary circumstances, for good cause In extraordinary circumstances, for good cause shown, the Commissioner may request a shown, the Commissioner may request a continuance. continuance.

Court may consolidate multiple appeals.Court may consolidate multiple appeals. Court shall appoint counsel for those Court shall appoint counsel for those

unable to afford attorney.unable to afford attorney. Interpreters.Interpreters.

Va. Code §§ 32.1-48.010, 32.1-48.012Va. Code §§ 32.1-48.010, 32.1-48.012

Appeal of OrderAppeal of Order

Court may:Court may:• Confirm,Confirm,• Modify, or Modify, or • Vacate the order.Vacate the order.

Any party may file appeal of court’s Any party may file appeal of court’s decision to the Supreme Court of decision to the Supreme Court of Virginia.Virginia.

Appeal to Supreme Court of Appeal to Supreme Court of VirginiaVirginia

Petition for Appeal.Petition for Appeal. Brief in Opposition due w/in 48 hours Brief in Opposition due w/in 48 hours oror

Court may grant petition before Brief in Court may grant petition before Brief in Opposition filed.Opposition filed.

Court shall act on petition w/in 72 hours of Court shall act on petition w/in 72 hours of filing.filing.

Court may permit oral argument.Court may permit oral argument. Court has the authority to alter these time Court has the authority to alter these time

frames.frames.

Rule 5:43Rule 5:43

Health and SafetyHealth and Safety

The Court shall hold hearings in a The Court shall hold hearings in a way to protect health and safetyway to protect health and safety• Hearing by telephone or video Hearing by telephone or video

conferenceconference• Personal protective equipmentPersonal protective equipment

Rules 3.24, 5:43, 7A:16Rules 3.24, 5:43, 7A:16

Enforcement of Isolation & Enforcement of Isolation & QuarantineQuarantine

Enforced by law enforcement agencies Enforced by law enforcement agencies and Commonwealth Attorneysand Commonwealth Attorneys

Class 1 MisdemeanorClass 1 Misdemeanor• Confinement for up to 12 monthsConfinement for up to 12 months• Fine of up to $2,500Fine of up to $2,500

InjunctionInjunction Civil PenaltiesCivil Penalties

Va. Code §§ 32.1-27, 32.1-48.014Va. Code §§ 32.1-27, 32.1-48.014

ReleaseRelease

An individual under an order of isolation or An individual under an order of isolation or quarantine shall be released immediately quarantine shall be released immediately if:if:

The commissioner determines that an The commissioner determines that an individual no longer poses a threat to the individual no longer poses a threat to the public healthpublic health

The order has expired, orThe order has expired, or The order has been vacated by the courtThe order has been vacated by the court

Other Forms of Movement Other Forms of Movement RestrictionRestriction

Federal isolation and quarantine lawsFederal isolation and quarantine laws

State veterinarian can restrict animals. State veterinarian can restrict animals. Va. Code § 3.1-726 to 728Va. Code § 3.1-726 to 728

Curfew for minors. Curfew for minors. Va. Code Va. Code § 15.2-926§ 15.2-926

Temporary detention of individuals incapable of Temporary detention of individuals incapable of making informed decisions.making informed decisions.Va. Code § 37.2-1103.Va. Code § 37.2-1103.

Emergency detention of individuals w/mental Emergency detention of individuals w/mental illness. illness. Va. Code § 37.2-808Va. Code § 37.2-808

Tabletop:Tabletop:Background/SituationBackground/Situation

Dr. Christopher NovakDr. Christopher NovakOffice of Epidemiology, VDHOffice of Epidemiology, VDH

Scenarios - BackgroundScenarios - Background Influenza virusInfluenza virus

• Infects human respiratory tractInfects human respiratory tract• Different strains – previous infection (or Different strains – previous infection (or

vaccination) provides some immunityvaccination) provides some immunity• Seasonal outbreaks (usually Seasonal outbreaks (usually

winter/spring)winter/spring)• Highly contagious (contact, droplet, ?Highly contagious (contact, droplet, ?

airborne)airborne)• Contagious period begins Contagious period begins beforebefore

symptoms appear and lasts about a weeksymptoms appear and lasts about a week

Pandemic InfluenzaPandemic Influenza

New strain, or strain that has New strain, or strain that has not circulated for a long timenot circulated for a long time

Little or no immunity in humansLittle or no immunity in humans May cause high levels of illness, May cause high levels of illness,

death, social disruption, and death, social disruption, and economic losseconomic loss• ‘ ‘Spanish’ Flu (1918)Spanish’ Flu (1918)

The Problem With Pandemics…The Problem With Pandemics…

Last much longer than most other Last much longer than most other emergency eventsemergency events

May come in “waves” May come in “waves” Healthcare workers and first responders Healthcare workers and first responders

will be affected will be affected • High risk of illnessHigh risk of illness• Care for ill family membersCare for ill family members

Wide range of resources could be limited Wide range of resources could be limited due to broad impactdue to broad impact• Medication, supplies, ventilators, food, fuel, Medication, supplies, ventilators, food, fuel,

etc.etc.

Group A ScenarioGroup A Scenario

Arrival at Dulles of person who Arrival at Dulles of person who becomes ill next daybecomes ill next day

Exposes large number of Virginia Exposes large number of Virginia residents after symptoms developresidents after symptoms develop

Large number of people potentially Large number of people potentially exposedexposed

Orders of isolation/quarantine issuedOrders of isolation/quarantine issued

Group B ScenarioGroup B Scenario

Agriculture student develops Agriculture student develops symptomssymptoms

Exposure of poultry to pandemic Exposure of poultry to pandemic strainstrain

Efforts to restrict movement on and Efforts to restrict movement on and off university campus, including off university campus, including establishment of curfewestablishment of curfew

Group C ScenarioGroup C Scenario

Impact of pandemic on healthcare Impact of pandemic on healthcare system, including hospitalssystem, including hospitals

Canceling of public gatheringsCanceling of public gatherings Widespread shortagesWidespread shortages High absenteeismHigh absenteeism Public information campaignsPublic information campaigns

Movement RestrictionsMovement Restrictions

Workgroups will meet to review their Workgroups will meet to review their specific scenario detailsspecific scenario details

Red/Group A – Facilitator: Steve GravelyRed/Group A – Facilitator: Steve Gravely Yellow/Group B – Facilitator: Dr. Diane WoolardYellow/Group B – Facilitator: Dr. Diane Woolard Green/Group C – Facilitator: Dr. Lisa KaplowitzGreen/Group C – Facilitator: Dr. Lisa Kaplowitz

• Scenarios provide general contextScenarios provide general context• Issues for discussion should be explored Issues for discussion should be explored

to the best of the groups’ abilitiesto the best of the groups’ abilities Plenary session will follow to share Plenary session will follow to share

key findings and to identify larger key findings and to identify larger issuesissues

BreakBreak

Resume in Salon II (here) in 10 Resume in Salon II (here) in 10 minutes...minutes...

Movement RestrictionsMovement RestrictionsWorkgroupsWorkgroups

Red/Group A – Facilitator: Steve GravelyRed/Group A – Facilitator: Steve Gravely

Yellow/Group B – Facilitator: Dr. Diane WoolardYellow/Group B – Facilitator: Dr. Diane Woolard

Green/Group C – Facilitator: Dr. Lisa KaplowitzGreen/Group C – Facilitator: Dr. Lisa Kaplowitz

50 minutes50 minutes

Movement RestrictionsMovement RestrictionsPlenary SessionPlenary Session


Group A - Key IssuesGroup A - Key Issues

General or specific issues identified?General or specific issues identified?

Group A - Key Issues Group A - Key Issues (con’t)(con’t)

Group A – Additional ThoughtsGroup A – Additional Thoughts Constitutional rights issues that have been Constitutional rights issues that have been

identifiedidentified Surge capacity of courtsSurge capacity of courts Improving awareness/trainingImproving awareness/training Continuity of operations optionsContinuity of operations options Issues regarding orders of isolation and quarantineIssues regarding orders of isolation and quarantine Non-infectious communicable diseases of public Non-infectious communicable diseases of public

health threat (e.g., Polonium-210)health threat (e.g., Polonium-210) Individual privacy protectionIndividual privacy protection Legal issues regarding accidental or intentional Legal issues regarding accidental or intentional

infectioninfection• Civil or criminal penaltiesCivil or criminal penalties

Group A – Additional Thoughts Group A – Additional Thoughts (con’t)(con’t)

Duration of order of quarantine for Duration of order of quarantine for affected areas – problematic?affected areas – problematic?

Distribution of orders to individuals in Distribution of orders to individuals in affected areasaffected areas

Determination of just compensation for Determination of just compensation for government use of private propertygovernment use of private property

CurfewCurfew• Need for additional statutesNeed for additional statutes

Closure of public placesClosure of public places• Seizure of property?Seizure of property?• Compensation?Compensation?• Civil rights issues?Civil rights issues?

Group B – Key IssuesGroup B – Key Issues


Group B - Key Issues Group B - Key Issues (con’t)(con’t)

Group B – Additional ThoughtsGroup B – Additional Thoughts

Surge capacity of law enforcementSurge capacity of law enforcement Issues regarding orders of isolation Issues regarding orders of isolation

and quarantineand quarantine• Detention of noncompliant individual if Detention of noncompliant individual if

non-compliance not witnessed by officernon-compliance not witnessed by officer Witnesses for enforcementWitnesses for enforcement

• Public health department staff Public health department staff time/resource demandstime/resource demands

Group B – Additional Thoughts Group B – Additional Thoughts (con’t)(con’t)

Physical force for movement restriction, curfew, Physical force for movement restriction, curfew, closure of public placesclosure of public places

Control of animals that may transmit agentControl of animals that may transmit agent• Companion animalsCompanion animals• Livestock/poultryLivestock/poultry• WildlifeWildlife

Important public messages for your agency at Important public messages for your agency at this time (e.g., change in hours or procedures)this time (e.g., change in hours or procedures)• How would this information be disseminated?How would this information be disseminated?

CurfewCurfew• Minimizing impactMinimizing impact

Closure of public placesClosure of public places• Legislation regarding ‘cordon sanitaire’?Legislation regarding ‘cordon sanitaire’?

Group C – Key IssuesGroup C – Key Issues


Group C - Key Issues Group C - Key Issues (con’t)(con’t)

Group C – Additional ThoughtsGroup C – Additional Thoughts

Surge capacity of healthcareSurge capacity of healthcare Continuity of operations optionsContinuity of operations options Return to work policies for healthcare, Return to work policies for healthcare,

businessbusiness• ““Doctor’s note”?Doctor’s note”?

Temporary waivers for Temporary waivers for licensing/credentials of businesses – what licensing/credentials of businesses – what can be ‘relaxed’?can be ‘relaxed’?

How would prophylaxis, vaccination, or How would prophylaxis, vaccination, or prior infection affect movement prior infection affect movement restrictions?restrictions?

Group C – Additional Thoughts Group C – Additional Thoughts (con’t)(con’t)

CurfewCurfew• Minimizing impactMinimizing impact

Closure of public placesClosure of public places• Concerns regarding appropriate access Concerns regarding appropriate access

to healthcare, essential needsto healthcare, essential needs

Lunch BreakLunch Break

Sapphire Grill Sapphire Grill Resume in Salon II (here) at 1:00 p.m.Resume in Salon II (here) at 1:00 p.m.

Mass ProphylaxisMass Prophylaxis



State Health Commissioner may State Health Commissioner may require immediate immunization of require immediate immunization of all persons in an epidemic of a all persons in an epidemic of a disease of public health importance disease of public health importance unless detrimental to a person’s unless detrimental to a person’s health as certified by a physician. health as certified by a physician.

Va. Code § 32.1-48Va. Code § 32.1-48

Drug Control Drug Control Non-emergencyNon-emergency

Virginia’s Drug Control Act restricts who Virginia’s Drug Control Act restricts who can dispense prescription drugs and who can dispense prescription drugs and who can give immunizations. can give immunizations.

Va. Code § 54.1-3401; Va. Code § 54.1-3408Va. Code § 54.1-3401; Va. Code § 54.1-3408

Prescriptions drugs given by a physician, Prescriptions drugs given by a physician, nurse practitioner, physician’s assistant, nurse practitioner, physician’s assistant, vet, etc. vet, etc.

Immunizations by a pharmacist or licensed Immunizations by a pharmacist or licensed nursenurse

Mass ProphylaxisMass Prophylaxis O. In addition, this section shall not prevent the O. In addition, this section shall not prevent the

administration or dispensing of drugs and devices by administration or dispensing of drugs and devices by persons if they are authorized by the State Health persons if they are authorized by the State Health Commissioner in accordance with protocols established by Commissioner in accordance with protocols established by the State Health Commissioner pursuant to § the State Health Commissioner pursuant to § 32.1-42.1 when (i) the Governor has declared a disaster or a state of when (i) the Governor has declared a disaster or a state of emergency or the United States Secretary of Health and emergency or the United States Secretary of Health and Human Services has issued a declaration of an actual or Human Services has issued a declaration of an actual or potential bioterrorism incident or other actual or potential potential bioterrorism incident or other actual or potential public health emergency; (ii) it is necessary to permit the public health emergency; (ii) it is necessary to permit the provision of needed drugs or devices; and (iii) such persons provision of needed drugs or devices; and (iii) such persons have received the training necessary to safely administer or have received the training necessary to safely administer or dispense the needed drugs or devices. Such persons shall dispense the needed drugs or devices. Such persons shall administer or dispense all drugs or devices under the administer or dispense all drugs or devices under the direction, control and supervision of the State Health direction, control and supervision of the State Health Commissioner. Commissioner.

Va. Code § 54.1-3408(O)Va. Code § 54.1-3408(O)


Such persons shall administer or dispense Such persons shall administer or dispense all drugs or devices under the direction, all drugs or devices under the direction, control and supervision of the control and supervision of the Commissioner. The Commissioner shall Commissioner. The Commissioner shall develop protocols, in consultation with the develop protocols, in consultation with the Department of Health Professions, that Department of Health Professions, that address the required training of such address the required training of such persons and procedures for such persons persons and procedures for such persons to use in administering or dispensing to use in administering or dispensing drugs or devices.drugs or devices.

Va. Code § 32.1-42.1Va. Code § 32.1-42.1


AnimalsAnimals• Broad power to eradicate and prevent Broad power to eradicate and prevent

the spread of diseasesthe spread of diseases

Va. Code Va. Code §§ 3.1-726 to 728§§ 3.1-726 to 728


Governor has the ability to suspend Governor has the ability to suspend licensure requirements of health licensure requirements of health professionals.professionals.

2002 Va. AG 2022002 Va. AG 202

Mass ProphylaxisMass ProphylaxisPlenary SessionPlenary Session


Mass Prophylaxis - IssuesMass Prophylaxis - Issues General or specific issues?General or specific issues?

Ethical and legal issues on distribution of limited Ethical and legal issues on distribution of limited suppliessupplies• ‘‘Essential’ personnel versus highest riskEssential’ personnel versus highest risk• Could/should non-citizens be denied accessCould/should non-citizens be denied access

Who determines vaccine and antiviral priority Who determines vaccine and antiviral priority groups?groups?

How to communicate priority group decisions to How to communicate priority group decisions to the public and staff to promote acceptance?the public and staff to promote acceptance?

What storage and transportation control plans What storage and transportation control plans exist to support vaccine and antiviral distribution?exist to support vaccine and antiviral distribution?

Mass Prophylaxis – Issues Mass Prophylaxis – Issues (con’t)(con’t)

What is the legal authority for the state to What is the legal authority for the state to require specific private sector response to require specific private sector response to state resource requests (e.g., prioritization state resource requests (e.g., prioritization of antivirals)?of antivirals)?

Does an Memorandum of Understanding Does an Memorandum of Understanding have to be pre-arranged?have to be pre-arranged?

Can the Governor direct the use of private Can the Governor direct the use of private resources? resources?

Can the state seize antivirals or vaccine Can the state seize antivirals or vaccine for use (for use (Code of VirginiaCode of Virginia § 44-146.17)? § 44-146.17)?• What are the potential functional and legal What are the potential functional and legal

consequences?consequences?


Liability for the state in assigning Liability for the state in assigning priority groups?priority groups?

Legal protection for persons/agencies Legal protection for persons/agencies making and prioritizing vaccine/anti-making and prioritizing vaccine/anti-viral allocation decisions? viral allocation decisions?

Liability for healthcare in following Liability for healthcare in following (or not following) guidelines?(or not following) guidelines?


What hospital plans exist to manage the What hospital plans exist to manage the dispensing of antiviral medications and dispensing of antiviral medications and vaccines to staff?vaccines to staff?

Methods to address counterfeit vaccine Methods to address counterfeit vaccine and antivirals, unsubstantiated claims for and antivirals, unsubstantiated claims for treatments, price gouging, re-sale of PEP treatments, price gouging, re-sale of PEP received from state by higher priority received from state by higher priority group individuals to othersgroup individuals to others• Other potential criminal activities to be Other potential criminal activities to be

considered (e.g., life insurance scams)?considered (e.g., life insurance scams)?


Storage, transportation, and Storage, transportation, and distribution legal issues for vaccine distribution legal issues for vaccine and antiviralsand antivirals• E.g., security, traffic control, adverse E.g., security, traffic control, adverse

reactions, prescribing oversightreactions, prescribing oversight

Miscellaneous Legal Miscellaneous Legal IssuesIssues


CooperationCooperation

Inter-jurisdictional cooperationInter-jurisdictional cooperation Intra-jurisdictional cooperationIntra-jurisdictional cooperation Cooperation with federal governmentCooperation with federal government


Governor may enter into mutual aid Governor may enter into mutual aid agreements with other states. May agreements with other states. May authorize use of personnel, authorize use of personnel, equipment, supplies, and materials equipment, supplies, and materials of the Commonwealth or a locality.of the Commonwealth or a locality.

Va. Code Va. Code § 44-146.17§ 44-146.17


Emergency Management Assistance Emergency Management Assistance Compact (“EMAC”) allows for mutual Compact (“EMAC”) allows for mutual aid between member states in an aid between member states in an emergency.emergency.• Warning communities adjacent to areaWarning communities adjacent to area• Protect and assure delivery of services, Protect and assure delivery of services,

food, water, energy, medicine, equipment, food, water, energy, medicine, equipment, resourcesresources

• Loan of human and material resourcesLoan of human and material resources• Temporary suspension of statutes or Temporary suspension of statutes or

ordinances that would restrict aboveordinances that would restrict above


EMACEMAC• Assisting state’s agents deemed Assisting state’s agents deemed

certified or permitted to render aid certified or permitted to render aid • For liability purposes, assisting state’s For liability purposes, assisting state’s

agents are deemed agents of the agents are deemed agents of the requesting staterequesting state

Va. Code Va. Code § 44-146.28:1§ 44-146.28:1


LocalitiesLocalities• Governing bodies of localities may contract Governing bodies of localities may contract

with each other for mutual aid of equipment with each other for mutual aid of equipment and materials to maintain peace and order. and materials to maintain peace and order.

Va. Code Va. Code § 15.2-1736§ 15.2-1736

• Localities may enter into reciprocal Localities may enter into reciprocal agreements with localities outside Virginia for agreements with localities outside Virginia for mutual aid.mutual aid.

Va. Code Va. Code § 15.2-1727§ 15.2-1727


LocalitiesLocalities• Law enforcement may call upon Law enforcement may call upon

adjoining localities for assistance.adjoining localities for assistance.Va. Code Va. Code §§ 15.2-1730, 15.2-1731§§ 15.2-1730, 15.2-1731

• Law enforcement may go beyond the Law enforcement may go beyond the territorial limits of locality to assist. territorial limits of locality to assist.

Va. Code § 15.2-1724Va. Code § 15.2-1724


Federal ordersFederal orders• Federal Quarantine 42 U.S.C. Federal Quarantine 42 U.S.C. § § 243(a), 243(a),

42 C.F.R. 42 C.F.R. § § 70.2, 21 C.F.R. 70.2, 21 C.F.R. § § 1240.301240.30• Federal order of quarantine or isolation Federal order of quarantine or isolation

may be enforced by local law-may be enforced by local law-enforcement officers or officers of the enforcement officers or officers of the Metropolitan Washington Airports Metropolitan Washington Airports Authority. Authority.

Va. Code Va. Code § 32.1-48.014(D)§ 32.1-48.014(D)


Federal OrdersFederal Orders• In areas of exclusive federal jurisdiction In areas of exclusive federal jurisdiction

in Virginia, contiguous locality may in Virginia, contiguous locality may enter into a mutual aid agreement with enter into a mutual aid agreement with federal authority. federal authority.

Va. Code Va. Code § 15.2-1728§ 15.2-1728

• Enforcement of state and county laws Enforcement of state and county laws by federal officers on federal property.by federal officers on federal property.

Va. Code § 15.2-1729Va. Code § 15.2-1729


Governor, or locality on behalf of Governor, or locality on behalf of Governor, may accept federal aidGovernor, may accept federal aid

Va. Code Va. Code § 44-146.27§ 44-146.27

Miscellaneous Legal Miscellaneous Legal IssuesIssues


Miscellaneous IssuesMiscellaneous Issues Does the scenario highlight any issues Does the scenario highlight any issues

regarding communication/cooperation regarding communication/cooperation among agencies regarding:among agencies regarding:• Physical management (to prevent further Physical management (to prevent further

transmission)transmission)• Communication and legal management Communication and legal management

(multiple jurisdictions)(multiple jurisdictions) How would the other passengers be How would the other passengers be

managed, including providing security, managed, including providing security, clinical assessment, and the potential for clinical assessment, and the potential for quarantine (including orders of quarantine (including orders of quarantine)?quarantine)?

Miscellaneous Issues Miscellaneous Issues (con’t)(con’t)

Order of quarantine or isolation issued by Order of quarantine or isolation issued by the Director of the Centers for Disease the Director of the Centers for Disease Control and Prevention affecting the Control and Prevention affecting the Commonwealth or the Metropolitan Commonwealth or the Metropolitan Washington Airports Authority may be Washington Airports Authority may be enforced by local law-enforcement officers enforced by local law-enforcement officers or officers of the Metropolitan Washington or officers of the Metropolitan Washington Airports Authority with jurisdiction over the Airports Authority with jurisdiction over the facility involved in the quarantine or facility involved in the quarantine or isolation order. Any issues/concerns?isolation order. Any issues/concerns?

BreakBreak

Resume in Salon II (here) in 15 Resume in Salon II (here) in 15 minutes...minutes...

Movement Restrictions – Movement Restrictions – Practical IssuesPractical Issues

Panel DiscussionPanel Discussion

Moderated by: Dr. Lisa KaplowitzModerated by: Dr. Lisa KaplowitzDeputy Commissioner for Emergency Preparedness and Deputy Commissioner for Emergency Preparedness and

Response, VDHResponse, VDH

Practical IssuesPractical Issues

Optimal location for isolation and quarantineOptimal location for isolation and quarantine• Usually, a residenceUsually, a residence• Other options?Other options?

Centralized facilitiesCentralized facilities• E.g., treatment, quarantineE.g., treatment, quarantine• Location, supplies, security…Location, supplies, security…

Provision for essential needsProvision for essential needs Developing, serving, managing, and Developing, serving, managing, and

enforcing a large number of ordersenforcing a large number of orders• Transmittal of health informationTransmittal of health information

Practical Issues Practical Issues (con’t)(con’t) Ripple effectRipple effect

• E.g., closure of events may have E.g., closure of events may have anticipated consequencesanticipated consequences

Trigger points for various interventionsTrigger points for various interventions Prioritization of resourcesPrioritization of resources RecoveryRecovery How would prophylaxis, vaccination, How would prophylaxis, vaccination,

or prior infection affect movement or prior infection affect movement restrictions?restrictions?

Future Efforts and Future Efforts and Closing RemarksClosing Remarks

Dr. Lisa KaplowitzDr. Lisa KaplowitzDeputy Commissioner for Emergency Preparedness and Deputy Commissioner for Emergency Preparedness and

Response, VDHResponse, VDH

Future EffortsFuture Efforts

Address gaps and challenges in legal Address gaps and challenges in legal preparedness for social distancing and preparedness for social distancing and disease controldisease control• Non-infectious communicable diseases of public Non-infectious communicable diseases of public

health threat?health threat?• Temporary detention for communicable disease?Temporary detention for communicable disease?• Protection of health information?Protection of health information?• Compensation?Compensation?• Additional components of emergency Additional components of emergency

declaration?declaration?• Others?Others?

Future Efforts Future Efforts (con’t)(con’t)

Additional work in other legal areasAdditional work in other legal areas• School ClosureSchool Closure• LiabilityLiability

Public healthPublic health Law enforcementLaw enforcement HealthcareHealthcare

• FinancialFinancial Unemployment insuranceUnemployment insurance Life insuranceLife insurance

• ‘‘Altered standards of care’Altered standards of care’

Additional Thoughts?Additional Thoughts?

Comments?Comments? Concerns?Concerns? Queries?Queries? Proposals?Proposals? Suggestions?Suggestions? Ideas?Ideas? Recommendations?Recommendations?

Please complete and leave the evaluation formsPlease complete and leave the evaluation formsPlease take travel reimbursement information (if Please take travel reimbursement information (if

needed)needed)

Welcome to the Virginia Social Distancing Legal Consultation Meeting Crowne Plaza Richmond West October 9, 2007.

Documents

critical virginia

public health emergencies

legal issues

public health threats

vdh slide

va law slide

necessary slide

critical legal preparedness