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A Legal Analysis Matthew Birnbaum , Philip Westb

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A Legal Analysis Matthew Birnbaum , Philip Westb Running head: THREAT OF A PANDEMIC 1 P-20 Response to the Threat of a Pandemic: A Legal Analysis Matthew Birnbaum1, Philip Westbrook2, and Spencer C. Weiler3 1 Dr. Birnbaum is an associate professor of Higher Education and Student Affairs Leadership 2 Dr. Westbrook is an associate professor in the Department of Education Leadership, Policy, and Technology Studies at the University of Alabama. 3 Dr. Weiler is an associate professor in the Educational Leadership and Policy Studies program at the University of Northern Colorado. Dr. Weiler can be reached via email at [email protected]. THREAT OF A PANDEMIC 2 Abstract Pandemics have occurred throughout history and continue to be a potential threat for humanity. P-20 leaders play an important role in the prevention and response to pandemics. P-20 leaders need to be aware of their legal authority and responsibilities concerning the prevention of pandemics and in the event of an actual pandemic. State and federal laws dictate authority and decision-making concerning public health. P-20 administrators should make informed decisions concerning potential pandemic threats in consultation and cooperation with state and federal actors and be prepared to cede authority concerning school closures, mandatory vaccinations, and other actions to other governmental actors in the event of an actual pandemic. THREAT OF A PANDEMIC 3 P-20 Response to the Threat of a Pandemic: A Legal Analysis U.S. popular culture has become obsessed with pandemics and the stories of the survivors, usually strong characters who must make difficult decisions with incomplete information. For example, in the popular television series The Walking Dead, a small town sheriff must decide where to lead a band of survivors following an outbreak of a meningitis-like disease that turns most humans into brain craving zombies. In World War Z, a narrator recounts first hand experiences with the failures of governments to deal with another zombie apocalypse and the importance of survivalism. These fictional stories unfold in ways that require readers to quietly wonder, “what would I do in similar circumstances and what responsibilities would I have for others?” The power of these narratives can be disconcerting when, after binge watching 3-4 episodes of The Walking Dead, the next morning’s headlines reference a new strain of influenza, the discovery of SARS, an outbreak of Ebola, or a strange illness that has many individuals not feeling well. Pandemics resulting from these diseases will not result is a zombie apocalypse, but events potentially resulting in a 25-50% mortality rate do challenge us to consider the implications on the roles and authority educational leaders may have at their institutions when making decisions that will effect students, employees, and the community. While the chances of a pandemic are rare, the real possibility exists that a particular strain of an existing disease can mutate with devastating consequences. There have been numerous pandemics in the United States including smallpox, yellow fever, cholera, polio, influenza, whopping cough, and meningitis. The 1918 outbreak of the Spanish flu resulted in the deaths of 675,000 in the US and between 50-70 million people worldwide, mostly young healthy adults. The 1957 outbreak of the Asian flu killed THREAT OF A PANDEMIC 4 70,000, and the 2009 outbreak of H1N1, or the Swine flue, resulted in 60.8 million cases in the US, 274,000 hospitalizations, and over 12,400 deaths according to the latest estimates by the Center for Disease Control (citation). The advances in immunology and treatments may help stem the ravages of predictable or slow moving diseases, but health care experts caution that we must remain vigilant. For example, on April 29, 2009, just days after the public learned about a new swine flu virus, World Health Organization (WHO) Director-General Chan raised the pandemic level to Phase 5, suggesting a pandemic was almost certainly imminent. Dr. Chan acknowledged that it was impossible to determine the severity of the newly discovered flu strain but did use the following unfortunate phrase: all of humanity is under threat.”4 Although Dr. Chan actually stated, “it really is all of humanity that is under threat during a pandemic,” her unintentional truism created widespread panic that a large-scale crisis was already underway. President Obama proclaimed the “Declaration of a National Emergency” in October 2009 and by November 2009 the virus had infected nearly a half-million people in about 200 countries, and killed over 6,000 people.5 Similar fears resurfaced in 2014 when several individuals working closely with Ebola patients were themselves infected. The world becomes increasingly interconnected and, as a result of this interconnectedness, an outbreak in one corner of the world can morph within weeks into a worldwide pandemic. This interconnectedness led then –TITLE Mike Leavett to 4 Citation for the quote needed 5 Need a citation here THREAT OF A PANDEMIC 5 declare, “We are overdue and underprepared for a pandemic.”6 The focus of this legal analysis is on the actions P-20 educational leaders can take to mitigate the spread of an infectious disease and the legal implications of these efforts. What actions should leaders take and what legal liability do they incur as a result their efforts to protect those within their charge? I. Federal Statutes’ Role During a Time of Crisis Unknown to many educators is the fact that a series of federal statutes serve to, collectively, provide the federal government the requisite authority to manage the nation during a unique crisis, such as a pandemic. This collection of federal statutes is a patchwork of laws aimed at helping contain or mitigated the effects of an infectious disease outbreak.7 These laws could also be considered a series of domino tiles lined up next to one another. As one falls a chain reaction is initiated that could, ultimately, provide the President of the United States, the Secretary of the Department of Health and Human Services, and the Director of the Center for Disease Control and Prevention (CDC) with the necessary authority to manage the nation during a pandemic. As a result, these federal statutes are reviewed below. Public Health Service Act The first domino that would need to fall in order to ensure that the federal government had sufficient authority to manage the nation during a pandemic is the Public Health Services (PHS) Act.8 The PHS Act allows the Secretary of the Department of 6 Citation for this quote 7 Kathleen S. Swendimann and Nancy Lee Jones, “The 2009 Influenza Pandemic: Selected Legal Issues,” Congressional Research Service (October 2009): 1. 8 42 U.S.C. § 247d(a). THREAT OF A PANDEMIC 6 Health and Human Services (HHS) to take specific steps to address a public health emergency. Specifically, PHS provides the Secretary of HHS to “take such action as may be appropriate to respond to the public health emergency, including making grants, providing awards fro expenses, and entering into contracts and conducting and supporting investigations into the cause, treatment, or prevention of a disease.”9 In addition, the Secretary of HHS can order the Director of the CDC to provide technical and financial aid to states to investigate and control an outbreak of a disease. National Emergencies Act Declaration The National Emergencies Act (NEA) provides the President of the United States the authority to declare a national emergency.10 Once a national emergency is declared then the President of the United States and other executive branch leaders have the authority to activate different provisions incorporated in other statutes to utilize special power to better manage the emergency. Ironically, the NEA declaration of a national emergency does not, by itself, provide the President with additional authority, but such a declaration initiates emergency authority written into other federal statutes. The emergency authority vested in different federal statutes will remain dormant until the President declares a national emergency. Stafford Act Declaration Under the Stafford Act, the President of the United States may issue one of two types of declarations: emergency and major disaster.11 It is unclear if a pandemic would constitute an emergency or major disaster according to the Stafford Act, so many of the 9 Id. 10 42 U.S.C. § 1601. 11 42 U.S.C. § 5193(b). THREAT OF A PANDEMIC 7 powers listed in this section may not apply to a pandemic crisis. However, it seems logical that if the nation were severely crippled by an infectious pandemic that an emergency declaration under the Stafford Act would be deemed constitutional. The President of the United States would issue the Stafford Act declaration and once such a declaration is issued federal agencies can be directed to support state and local emergency efforts. In addition, a Stafford Act declaration authorizes the President to coordinate disaster relief, provide emergency assistance, provide assistance to victims of the disaster, and aid in the distribution of survival supplies. Social Security Act On the surface, it seems odd that the Social Security Act12 would have anything to do with the federal government’s response to a pandemic. However, included in the Social Security Act is § 1135, which authorizes the Secretary of HHS to suspend regulatory requirements related to health care services. Specifically, the requirements that are suspended are designed to ensure health care services are extended to all in need, regardless of insurance coverage. The ultimate aim is to assist patients that require relocation and ensure benefits to those that may have lost their insurance paperwork due to the disaster. Federal Food, Drug, and Cosmetic Act The Federal Food, Drug, and Cosmetic Act13 includes Section 564 and this section provides the Commissioner of the Food and Drug Administration (FDA) with pivotal authority during a pandemic.
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