COVID-19 Emergency Legal Preparedness Primer As of September 10, 2020 James G. Hodge, Jr., J.D., L.L.M. Peter Kiewit Foundation Professor of Law Director, Western Region Office, Network for Public Health Law ASU and Day O’Connor College of Law [email protected] Contents

❑ COVID-19 Epi Trends ❑ Emergency Legal Preparedness/ Response/Recovery Federal | State | Tribal | Local ❑ Public Health Emergency Powers ❑ Constitutional & Other Challenges ❑ Additional Resources/Ask the Network

2 COVID-19 Confirmed Cases & Deaths

Global Cases 27.5 million | Deaths: 897,789 U.S. Cases 6.35 million | Deaths: 189,500 U.S. Stats 23% all cases | 21% all deaths

3 3 Source: https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html Emerging Epi & Medical Trends

Asymptomatic persons Antibodies may be insufficient to could account for 40-45% of ward off additional infections infections spread

Multiple potential vaccines are COVID-19 can cause milder in Phase III clinical trials for outpatient illnesses among young 4 safety & efficacy adults & others Emergency Declarations

Public health authorities & powers vary depending on the type of emergency declared at every level of government

WHO Public Health Emergency Declarations International Emergency of Int’l Concern by Foreign Governments January 30, 2020 Ongoing

Stafford Act or National HHS Public Health Federal Emergencies Act Emergency

Emergency or Public Health State/Tribal Disaster Emergency

Emergency or Public Local Disaster Health 5 Emergency Federal Emergencies/Invocations

HHS National PREP Stafford Defense HHS Public Emer- Act Act Production Health gencies Declar- Emergency Act Emergency ation Act

Jan. Feb. Mar. Mar. Mar. 31 4 13 13 20

6 6 6 HHS Public Health Emergency

Jan. 31: HHS Sec. declares national public health emergency effective as of Jan. 27 • Encourages interjurisdictional coordination • Allows waivers of specific federal laws • Authorizes real-time countermeasures through emergency use authorizations • Supports social distancing measures July 25: Sec. Alex Azar renews PHE declaration for 90 additional days. 7 National Emergencies

Mar. 13: President Trump declares dual emergencies via the National Emergencies Act & §501(b) of the Stafford Act authorizing: • Access to FEMA’s Disaster Relief Fund & reimbursement for eligible emergency protective response measures. • Waivers under SSA §1135 of select Medicare, Medicaid, S-CHIP, HIPAA Privacy Rule requirements • Additional types of federal assistance to states & 8 localities Select Congressional Bills

7/27 6/24 Senate proposes a Emergency House $1 trillion relief bill Protections & Relief providing for a new Act introduced to round of prevent evictions, checks, expanded foreclosures & unemployment unsafe housing benefits & additional conditions resulting school funding. from COVID-19.

6/24 6/22 5/15 Senate introduces a House introduces a House passes bill to provide funding bill to require COVID- HEROES Act to address health 19 drugs developed providing more workforce shortages with federal support & disparities economic stimulus to be affordable & highlighted by & funds for contact accessible. COVID-19. tracing

9 Major Enacted Federal Legislation

Families First CARES Act PPP & HEA

Mar. 18: Families First Mar. 27: CARES Act Apr. 24: Paycheck Coronavirus Response • Largest stimulus package Protection Program & Act in history Healthcare Enhancement • Private health plans • Requires insurance Act must provide $0 cost providers to cover • Additional funding for coverage for COVID- COVID-19 testing, hospitals & HCPs 19 tests vaccines & preventative • Supports testing & • Temporarily increases services contact tracing efforts federal portion of • Protects volunteer HCWs • Requires governors to Medicaid from liability submit 2020 testing plan • Requires 14 days of • Authorizes PHI • HHS Secretary must paid for disclosure with written report on testing, cases 10 certain employees patient consent & deaths Federal Agency Coordination

Right click on each image to link to COVID-19 sites

11 Emergency Waivers

Mar. 13: HHS Sec. Azar issues §1135 national waivers (retroactive effect on March 1) re: • EMTALA sanctions for patient relocation purposes • HIPAA Privacy Rule regulations (for limited duration) • In-state licensure requirements for health care workers • Participation restrictions on Medicare, Medicaid & S- CHIP • Medicare Advantage payment limitations • Stark Law sanctions

April 15: CMS updates waivers for health care providers re: • Telemedicine provisions, facilitating Medicare services • Patient rights surrounding access to medical records, visitation & seclusion • Physical environments to allow care in non-hospital 12 settings during surge ’s COVID Plan

• RestoreFamilies trust First & credibility in public officials • Reinstate daily briefings, ensure decisions are made by public health officials & not politicians, restore the White House National Security Council for Global Health Security & Biodefense • Effective national emergency response • Make testing widely available, create more capacity for prevention, response & treatment, accelerate development of treatment & vaccines, provide timely data & information • Eliminate cost barriers to prevention & treatment • Ensure everyone irrespective of insurance coverage has access to free testing, preventative services & vaccines. • Support workers, small businesses & stabilize the economy • Provide guaranteed paid sick & care-giving leave, expanded unemployment relief & state/local emergency funds. • Lead global responses to COVID-19 • Create a Global Health Emergency Board, advance global pandemic 13 preparedness COVID State & Select Tribal/Local Emergency Declarations

Mason Co. 3/6 Des Moines 3/6 Edmond 3/5 Auburn 3/6 Cowlitz Co. 3/4 Bellevue 3/3 Click on the date of each state to view declarations Snohomish Co. 3/4 Umatilla Reservation 3/4 Minneapolis (MN) 3/16 Lummi Nation 3/3 Kitsap Co. 3/9 Pierce Co. 3/6 Milwaukee (WI) 3/13 Redmond 3/3 Seattle 3/3 Whatcom Co. 3/10 Oglala Sioux Tribe 3/11 Kansas City St. Paul (MN) 3/15 Boston (MA) 3/15 Seattle-King Co. 2/29 Northern Arapaho 3/11 (MO) 3/12 Cooke Co. (IL) 3/9 Cuyahoga Co. Washington Co. 3/4 WA McHenry Co. (IL) 3/11 Clackamas Co. 3/2 2/29 Cincinnati (OH) 3/12 VT 3/12 Hoopa Valley Tribe 3/4 MT ND 3/13 (OH) 3/11 Montgomery 3/13 ME Sacramento Co. 3/4 3/12 MN Co. (PA) 3/9 Nevada Co. 3/4 OR 3/8 3/13 Delaware Co. NH Santa Rosa 3/2 ID WI 3/7 3/13 (PA) 3/9 3/13 Solano Co. 2/27 SD 3/13 3/12 3/10 NY 3/10 3/10 Marin Co. 3/3 WY 7/30 MI RI 3/9 Mendocino Co. 3/4 3/13 3/9 New IA 3/9 PA 3/6 Sonoma Co. 3/2 NE 3/13 3/9 York Placer Co. 3/3 NV 3/9 OH 3/16 3/5 DE Santa Cruz Co. 3/2 3/12 IL IN City UT 3/6 WV 3/12 Alameda Co. 2/19 CA CO 3/12 3/6 KS MO 3/4 VA 3/12 D.C. San Fran City 2/25 3/4 3/10 Santa Clara Co. 2/10 3/12 3/13 KY 3/11 3/6 Lexington (KY) Los Angeles Co. 3/4 NC Los Angeles 3/4 TN 3/12 3/10 3/6 Pasadena 3/4 AZ 3/11 OK 3/15 NM AR SC Long Beach 3/4 3/11 3/11 3/13 Orange Co. 2/27 GA San Diego Co. 2/19 AL MS 3/13 3/14 3/14 Salt Lake Co. (UT) 3/6 TX LA Emergency - 33 Salt Lake City (UT) 3/11 3/13 3/11 Navajo Nation 3/11 FL Disaster - 4 Eagle Co. (UT) 3/7 San Antonio 3/2 Houston 3/11 3/1 Phoenix (AZ) 3/13 Bexar Co. 3/2 3/9 Broward Co. 3/10 Public Health Miami-Dade Co. 3/11 Emergency/Disaster - 9 Austin 3/6 Travis Co. 3/6 Emergency + Public Health Emergency - 4 Co. of Hawai’i 2/28 AK – Alaska Public Health Disaster 3/9 County/City Honolulu Co. 3/4 Emergency 3/4 Maui, Kaua’i 3/4 HI - Hawaii Link here for updates re: jurisdictional PR - (Puerto Rico) Emergency 3/12 14 Tribal requests for FEMA disaster relief VI - (Virgin Islands)Emergency 3/13 Select State Emergency Powers Explicitly Invoked by Declarations Note: this table tracks select, express authorities referenced via state emergency declarations (link on each state acronym for access). Additional emergency powers may be authorized under state law through which the declarations are issued. Emergency Powers A A A C C C D F H I I I K L M M M M N N N N O O P R T V U W W W K Z R A O T E L I L N A Y A E D A I J M Y C H R A I N A T A V I Altered Contracts | Procurements ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ Emergency Plans | ICS ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ Funding | Resource Allocation ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ Intrastate Coordination ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ Isolation | Quarantine ■ ■ ■ ■ ■ ■ ■ Licensure Reciprocity ■ ■ ■ ■ ■ ■ ■ Price Controls re: Gouging ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ Surveillance | Reporting ■ ■ ■ ■ Testing | Screening | ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ Treatment Travel Restrictions ■ ■ ■ ■ ■ ■ ■ ■ Waivers | Suspensions ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ 15 Emergency Declaration Initial Timing & Projected Expiration by Month (2020) 50 49 Number of states Number of states whose 45 issuing initial emergency declarations are projected to expire per month, 40 emergency declarations absent further intervention 35

30 26 25 For more information 20 on the current status 16 of state/territorial 15 declarations, see the National Governors 10 Association online resource. 5 5 1 1 2 0

16 Legal Triage

Legal Triage: efforts of legal actors & others Legal Triage during declared Government emergencies to build a favorable legal Laws environment by Actors prioritizing issues & From this . . solutions facilitating Partners legitimate. public health responses

17 Balancing Individual & Communal Interests

Privacy Religious Freedoms Surveillance Treatment Individual Communal Interests Interests Due Equal Isolation & Curfews & Process Protection Quarantine Closures

Emergency Preparedness & Response

18 Select Structural & Rights-based Constitutional Issues

Judicial Separation of Federalism Supremacy Preemption Powers Deference

Freedom of Right to Freedom of Freedom of Due Process Expression Assembly Religion Privacy

Cruel & Equal Right to Takings Right to Bear Unusual 19 Protection Travel Arms Punishment Current & Emerging Legal Issues

Emergency Powers - Testing/ Triage Screening/ Treatment/ Crisis Vaccination Standards of Care

Topics Surveillance Social & Reporting Distancing Measures

Privacy Liability

20 Screening & Testing

March 3: VP Pence: “Any American can be tested . . . subject to doctor’s orders.” March 21: Some health officials restrict coronavirus testing to HCWs & hospitalized persons, saying “the battle to contain the virus is lost [as we move] into a new phase

of the pandemic response.” Source: https://www.medpagetoday.com/infectiousdisease/covid19/85138 April 11: CMS issues guidance requiring insurers to cover diagnostic testing & related services with no patient cost-sharing. April 19: Antibody tests key to reopening country are in high demand, yet tests’ availability & inaccuracies raise alarms.

May 7: AZ Gov. Ducey withdraws access by university researchers to select health data for

21 in-state surveillance,21 then reverses decision. COVID-19 National Surveillance

Aug 23: Times reports that the national shift in COVID-19 hospital surveillance practices from CDC’s existing system to the Pittsburgh-based private company, Teletracking Technologies, in April 2020 included a mandate from HHS Sec’y Alex Azar:

Hospitals must participate with the new surveillance system as a “perquisite to payment” of hospital preparedness funds via the CARES Act. 22 COVID-19 Vaccination Allocation

Click on image to access

23 National Academies Initial Vaccine Allocation Guidance

Phase 1 Phase 2 Phase 3 Phase 4

• High-risk • Critical risk • Children • Everyone else workers in workers • Young adults living in the US health care • Teachers & • Workers in facilities school staff essential • First • People of all industries responders ages with • People of all comorbid & ages with underlying comorbid & conditions at underlying moderately conditions at higher risk significantly • All other higher risk older adults • Older adults • People in living in homeless congregate shelters & settings prisons NASEM, Discussion Draft of the Preliminary Framework for Equitable Allocation of COVID-19 Vaccine, https://www.nap.edu/catalog/25914/discussion- 24 draft-of-the-preliminary-framework-for-equitable-allocation-of-covid-19-vaccine. Face Mask Requirements

• Localities in 43 states & territories require face masks to be worn by employees, customers, or others in public.

Source: • July 7: Freedom Foundation files lawsuithttps://www.medpagetoday.com/infectiousdisease/covid19/85138 challenging the constitutionality of WA state mask mandate. On July 27, it sues Oregon re: its mask mandate. • July 10: Judge rejects FL lawsuit challenging the constitutionality of Orange County’s mask requirement. • Aug. 13: GA Governor Kemp announces his office is dropping its case against the City of Atlanta re: its mask requirement. • Aug. 13: Democratic Presidential candidate Joe Biden calls on states to craft face mask requirements. • Aug. 20: NY Gov. Cuomo admits mask requirement should 25 have been25 issued months earlier. Contact Tracing

• Contact tracing - efforts typically led by public health agents to ascertain specific contacts of persons infected with COVID-19 & notify them of potential exposure & seek testing. • States are hiring thousands for contact tracing activities within health agencies • Apple & Google released Bluetooth technology on April 10 that sends automatic alerts to persons in range of COVID + persons, raising privacy concerns • New bill signed into law in Kansas on June 8 restricts contact tracing to voluntary participants, provides strong confidentiality

26 protections & extensively limits liability. Data Sharing & Privacy

Click on images to access

For additional expert analyses & guidance, contact Denise Chrysler, JD, or Sallie Milam, JD, CIPP/US/G, at the

27 Network–MidStates Region CDC Moratorium on Evictions

Sept. 2: CDC Director Dr. Robert Redfield signs declaration temporarily halting evictions. ▪ Order bans evictions of residential renters earning less than $99k annually ($198k jointly) through December 2020. ▪ Qualifying renters must present written declaration testifying to their circumstances to landlords ▪ Landlords who defy the moratorium may face criminal penalties ▪ CDC cites its authority under the Public Health Service Act §361(42 U.S.C. 264) & an emergency action taken under 42 C.F.R. 70.2, “measures in the event of inadequate local control.” ▪ Questions arise related to CDC’s legal capacity to implement eviction limitations as a communicable disease control matter 28 Crisis Standards of Care Substantial change in usual healthcare operations & level of care due to a pervasive or catastrophic disaster.

29 29 Select States’ CSC Plans

Click on the date* of each state to view CSC plans (where available) WA 3/16 MT ND VT ME 2/24 MN 5/8 OR NH ID 5/4 NY 3/23 4/17 6/29 SD WI 4/2 MI MA WY 3/27 6 PA RI 4/7 NE IA 4/27 NV OH 4/10 IL IN DE CA 4/2 UT CO 5/6 WV VA DC 6/5 KS 4/16 4/15 4/26 MO 3/18 4/2 2/28 4/20 KY 3/21 NC TN 6/10 AZ OK NM AR 4/1 4/7 SC MS AL GA 4/20 2/28 TX LA

FL 4/13 CSC plan

AK – Alaska *The date provided indicates when a state’s CSC HI - Hawaii PR - (Puerto Rico) 30 plan was published, not necessarily activated. VI - (Virgin Islands) CSC Legal Issues

Click on article image to access

• Allocation • Patient’s Rights • Reimbursement • Licensure • Scope of Practice • Civil Rights • Duty to Care • Uniformity • Liability 31 31 Emergency Liability Protections - Health Practitioners & Entities

Umbrella of Liability Coverage

Despite risks, many legal liability Good Samaritan Indemnification protections apply in Acts & Entity Liability State VPA routine events & Protection Mutual Aid State declared emergencies, EMAC Agreements EHPA

especially concerning Federal MOUs Joint PREP Act Commission health care volunteers, Standards/ Federal Policies & VPA workers & entities. Federal Practices CARES Act 32 Social Distancing Measures

Control modes of transport- ation Shelter-in- Increase distance place/ among Lockdown workers

Dismiss Curfew schools

Restrict Evacuation public gatherings Isolation & quarantine

33 Justifying Social Distancing

Assess Epi Assure Mobilization Acquire PPE

34 Find Treatments34 Develop Vaccines Save Lives Quarantine & Isolation Quarantine Isolation Separation from others of people Separation from others of people who exposed to a contagious condition are known to be infected, or capable of prior to knowing if they may be ill infecting others, with a contagious or contagious condition Best Practices

Safe, hygienic premises Monitoring & care Basic necessities

3514 Means of communication Least restrictive means Termination Closures & Cancellations

Schools & Places of Worship Employers Universities

36 Events36 Sports Festivals Curfews

Mar. 29: Curfew order extends existing Stay at Home Order for the entire Navajo Nation. All persons, subject to some exceptions, must stay home from 8:00 p.m. - 5:00 a.m., 7 days a week. May 5: Nearby Gallup, NM imposed strict confinement measures via use of “riot act” authorities allowed by NM Governor Michelle Lujan Grisham (ending on May 10). Aug. 19: Puerto Rico Governor Wanda Vazquez imposes “Sunday” lockdown (in addition to weekly 10 pm – 5 am 37 curfew across the territory). Assembly Limits

• On what authority? Government limits on • By who specifically? assembly & speech are constitutional provided • At what they are narrowly tailored governmental level? to a substantial • In what specific governmental interest & setting? allow alternative channels • For how long? for communication. Clark v. Community for Creative 38 38 Nonviolence, 468 U.S. 288 (1984) U.S. Foreign Travel Restrictions

Jan. 31: Trump Administration bans foreign national travel for those who have been in China w/in last 14 days & who pose a risk. Feb. 29: Administration bans foreign national travel for those who have been in Iran, as well as travel warnings re: Italy, Japan & South Korea. Mar. 11: President Trump institutes 30 day comprehensive travel ban for non-Americans arriving from EU, including U.K. & Ireland Mar. 19: U.S. closes border with Canada & Mexico (through 7/20) to persons travelling for non-essential purposes (e.g. tourism). Apr. 21: President Trump suspends limited immigration activities for 60 days initially & extended to Dec. 31. June 22: President Trump temporarily suspends foreign work visas through the end of 2020. 39 U.S. Domestic Travel Restrictions

Mar. 26: “Governors Tell Outsiders From ‘Hot Zone’ to Stay Away as Virus Divides States” ❑ Florida Governor Ron DeSantis orders 14 day quarantine against anyone arriving from NY in prior 3 weeks ❑ Hawaii Governor David Ige recommends travelers postpone trips for 30 days & imposes 14 day quarantine on arrivals ❑ Alaska Governor Mike Dunleavy orders residents & others arriving in state to self-quarantine for 14 days ❑ June 24: NY, NJ & CT Governors set 14 day quarantine requirement for persons returning or visiting from COVID “hotspot” states with > cases ❑ July 3: U.S. federal district judge rules that Hawaii’s quarantine is reasonable in a public health crisis, allowing the order to be 40 implemented. State Shelter-In-Place or Stay Home Orders Click on the date of each state to view the order WA 3/24VT NH 3/16 3/26 ME MT ND 3/31 3/26 OR ID MN 3/23 NY MA 3/23 3/25 SD 3/25 WI 3/22 WY 3/24 MI RI 3/28 3/28 3/23 CT 3/20 PA NE IA 4/1 NJ 3/21 NV OH DE 3/22 IL IN 3/31 UT 3/23 MD CA CO 3/21 3/23 WV VA 3/30 3/19 3/25 MO 3/24 DC 3/25 KS KY 3/23 3/30 3/28 4/3 3/25 NC TN3/30 3/27 AZ OK NM AR SC 3/30 3/24 4/6 3/23 GA MS AL 4/1 4/3 4/1 TX LA 3/22 Note: data are based in 3/31 substantial part on NYT FL (March 24, 2020) 4/1

AK – Alaska 4/1 Shelter-in-Place or Stay Home Orders – 43 states HI – Hawaii 3/23 PR - (Puerto Rico) Shelter-in-Place or Stay Home Orders – 3 partial states VI - (U.S. Virgin Islands) 41 Assessing the Consequences

Unemployment Business Failures Government Bailouts

42 Active42 Protests Mental Health Lost Lives Re-opening Phases

Phase 1 Phase 2 Phase 3

• Vulnerable • Resume • Vulnerable individuals shelter-in-place non- individuals • Practice social essential may resume distancing & public avoid socializing travel in groups >10 interactions, • Employers • Schools, with social should gyms & distancing encourage telework & most bars may • Large businesses re-open venues may remain closed reopen 43 Re-opening Efforts

Essential Business Light Retail Salons & Barbers

44 Bars44 Gyms Restaurants School Re-openings

Multiple legal issues extending from school re-opening include: lawful authority to open (or not), liability claims (related to potential outbreaks), liability protections, discrimination, demands for tuition refunds, rights to education & teacher union disputes. Aug. 13: In Florida, the state’s largest teachers’ union & others filed a lawsuit to block Gov. Ron DeSantis’ emergency order that requires most school districts to open schools 5 days a week by August’s end or face a reduction of state funding. Aug. 19: Iowa’s State Education Association & Iowa City Community School District sued Gov. Kim Reynolds & the state education department, arguing that state officials exceeded their authority by requiring in-person learning at least 50% of the time during any 2 week period. Aug. 20: In Oregon, a federal district judge denied an emergency order sought by 3 Christian schools to reopen despite Gov. ’s orders keeping K-12 schools closed. 45 University Re-openings

August 17: One week after re-opening, the University of North Carolina- Chapel Hill pivoted to online classes only following substantial COVID-19 outbreaks on campus. August 19: Six days after reopening in-person classes, the University of Alabama reported 566 positive COVID-19 cases among students & faculty. September 4: Florida State University reported that in a 7 day period ending Sept. 4, 21% of 3,429 COVID-19 tests administered came back positive. September 8: After the Labor day weekend’s spike in COVID-19 cases, Winona State University in Minnesota required the campus to quarantine for 2 weeks.

46 Thank You Contributors!

Emily Carey, ASU JD Candidate

Claudia Reeves, ASU JD Candidate

Erica White, 47 ASU JD Candidate For More Information

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