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Emergency Legal Preparedness: COVID-19

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Emergency Legal Preparedness: COVID-19 COVID-19 Emergency Legal Preparedness Primer As of July 29, 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 Sandra Day O’Connor College of Law [email protected] Contents ❑ COVID-19 Epi Snapshot ❑ Emergency Legal Preparedness/ Response/Recovery Federal | State | Tribal | Local ❑ Public Health Emergency Powers ❑ Constitutional & Other Challenges ❑ Additional Resources/Ask the Network 2 COVID-19 Epi Snapshot Transmission • Transmissible person-to-person with potential infectivity rate exceeding annual influenza. • Asymptomatic persons may clearly infect others. Symptoms • Respiratory symptoms, fever, cough, breathing difficulties, chills, muscle pains, headache, sore throat & loss of smell/taste • In severe cases infection can cause pneumonia, respiratory issues, kidney failure & death. Vaccines & Treatment • There are no effective treatments or vaccines although several 3 options are under close review or early assessments. U.S. COVID Morbidity Underlying health condition/Risk factor for severe outcomes from respiratory infection (% with condition) • One or more conditions (37.6%) • Diabetes (10.9%) • Chronic lung disease (9.2%) • Cardiovascular disease (9.2%) 8 out of 10 deaths reported in the U.S. have been in adults 65 years old and older 4 Source:4 https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html Emerging Epidemiology Trends Asymptomatic persons could account Antibodies may be insufficient to for 40-45% of infection spread ward off additional infections 5 potential vaccines are in Phase III Emerging cases surged over 50% 5 clinical trials for safety & efficacy related to re-opening activities Prolonged Effects of COVID-19 • CDC study released July 24, 2020 finds that “COVID-19 can result in prolonged illness even among persons with milder outpatient illness, including young adults.” • 35% of 292 symptomatic respondents reported not having returned to their usual state of health 16 days (median) from testing date: • 26% among those aged 18–34 years • 32% among those aged 35–49 years • 47% among those aged ≥50 years 6 COVID-19 Confirmed Cases & Deaths Global Cases 16.30 million | Deaths: 649,662 U.S. Cases 4.24 million | Deaths: 146,700 U.S. Stats 26% all cases | 23% all deaths 7 7 Source: https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html Unprecedented Emergency Declarations Public health authorities and 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 8 Emergency Federal Emergencies/Invocations HHS National PREP Stafford Defense HHS Public Emer- Act Act Production Health gencies Declar- Emergency Act Emergency Act ation Jan. Feb. Mar. Mar. Mar. 31 4 13 13 20 9 9 9 HHS Public Health Emergency Jan. 31: HHS Sec. Alex Azar 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 23: Sec. Alex Azar renews PHE declaration for 90 days effective July 25. 10 National Emergencies Mar. 13: President Trump declares dual emergencies via the National Emergencies Act and §501(b) of the Stafford Act authorizing: • Access to FEMA’s Disaster Relief Fund and 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 & 11 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 stimulus prevent evictions, checks, expanded foreclosures & unemployment unsafe housing benefits & conditions additional school resulting from funding. COVID-19. 6/24 6/22 5/15 Senate introduces a House introduces House passes bill to provide a bill to require funding to address HEROES Act COVID-19 drugs health workforce providing more developed with shortages & economic federal support to disparities stimulus & funds be affordable & highlighted by for contact tracing COVID-19. accessible. 12 Health, Economic Assistance, Liability Protection & Schools (HEALS) Act July 27: Senate proposes HEALS Act, a $1 trillion COVID-19 relief bill, including: • Another round of $1,200 direct payment stimulus checks for individuals; • Increased funding to the Paycheck Protection Program; • Reduced unemployment benefits previously expended by the CARES Act; • Liability protections for businesses so long as they make reasonable efforts to comply with CDC re-opening guidelines; and • $100+ billion in funding for schools and colleges reopening. 13 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 sick leave for disclosure with written report on testing, cases 14 certain employees patient consent & deaths Federal Agency Coordination Right click on each image to link to COVID-19 sites 15 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 16 settings during surge Joe Biden’s COVID Plan • RestoreFamilies trust First & credibility in public officials • Reinstate daily briefings, ensure decisions are made by public health officials and not politicians, restore the White House National Security Council for Global Health Security and 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 17 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 3/7 3/13 (PA) 3/9 3/13 Solano Co. 2/27 SD 3/13 WI 3/10 NY 3/10 3/12 3/10 Marin Co. 3/3 WY 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 18 Tribal requests for FEMA disaster relief VI - (Virgin Islands)Emergency 3/13 Initial Timing of State-based Emergency Declarations Number of States Issuing Initial Emergency Declarations 35 S… For more information 30 on the current status 29 of state/territorial 25 declarations, see the National Governors Association online 20 resource.
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