1. Emergency Response: Public Health Expectations, Private Provider fears Jeff Sconyers Children’s Hospital & Regional Medical Center, Seattle Jeff.sconyers@seattlechildrens.org

2. Goals of Presentation: Understand public health response to emergencies Identify legal risk issues for health care providers Encourage humility and cooperation Encourage preparation for an emergency

3. Public Health Emergencies Pandemic disease outbreak Mass casualty event Area-wide emergency

4. Public Health Interventions in an Emergency Syndrome surveillance, case contact investigation Treatment/prevention interventions Vaccination/immunization Treatment Travel/border controls Isolation and Quarantine Social Distancing Restructuring the Health Care System Cordon Sanitaire

5. Public Health Interventions: Competing Legal Principles - 1 Surveillance/case contact investigation Detection/deterrence of disease Discrimination, privacy concerns HIPAA permits sharing PHI Vaccination/treatment Controlling the spread of disease Major burden on American principle of autonomy The perils of Jacobson v. Massachusetts 295 JAMA 554 (2/1/2006)

6. Public Health Interventions: Competing Legal Principles – 2 Travel/border controls Highly effective High costs, liberty and discrimination concerns Social Distancing Effective in limiting the spread of disease High costs; assembly, association and petition concerns, possible effect on religion

7. Public Health Interventions: Competing Legal Principles – 3 Isolation and quarantine Effective in limiting spread of disease Social disruption, high costs, liberty concerns Health Affairs article: “Attitudes Toward the Use of Quarantine in a Public Health Emergency in Four Countries”, Blendon RJ et al., January 24, 2006

9. 1918 Pandemic Flu – Field Hospital

10. Tent settlement, influenza patients Pandemic Influenza Emergency Response – U.S. Military

11. Emergency hospital during influenza epidemic, Camp Funston, Kansas Pandemic Influenza

12. Requirements for Health Care Providers during Emergencies Cooperate with syndrome surveillance and case investigations Provide instruction to patients and staff Cooperate with isolation/quarantine orders Enforce employer-based restrictions Limits on hours, services, meetings, etc. Workplace quarantine requirements Restructure services as directed

13. Key Legal Questions for Providers - 1 Procedural/Constitutional: What additional procedural requirements may be necessary to comply with constitutional due process guaranties? What liabilities might health care providers face for implementing or acquiescing in I/Q orders?

14. Key Legal Questions for Providers – 2 Restructuring the Healthcare System If public health sets traige, admission, discharge and treatment standards, must hospitals follow them? Will providers have immunity for following public health directions? If decisions lead to injury or death (e.g., unhooking a ventilator), what should providers do? How can providers assure that public health decisions are valid and well-considered?

15. Key Legal Questions for Providers – 3 Human resource issues In the chaos and danger of an emergency, what reasonable expectations should providers have? How can employers help their employees prepare? Vaccinations, home readiness kits, messaging, etc. Can workers be reassigned to higher-level duties? What help can be given in an emergency? How can we keep employees at work? Day/elder care, housing, etc. In the recovery period, how can we avoid losing our workforce? Recovery assistance, pay continuation Are there applicable union contracts?

16. Key Legal Questions for Providers -4 Exposed health care workers: Who pays the lost wages of employees who are placed in I/Q? Should exposed workers be furloughed or reassigned? When can sick employees be allowed back to work? Is it possible to use workplace quarantine? How do employers maintain a safe workplace?

17. Key Legal Questions for Providers - 5 Operational Issues Who is responsible for enforcing isolation and quarantine orders? Is it malpractice not to enforce? What do Public Health and others expect of security personnel? And in what setting – ER, inpatient bed, outpatient clinic? If a patient must be detained in isolation due to an infectious condition, who will assure the patient stays? If a patient is admitted to a hospital, how will isolation and quarantine orders be delivered to the patient? For hospital patients in I/Q, how will a court hearing be conducted – from the patient’s room? What expectations of the hospital?

18. Key Legal Questions for Providers - 6 Financial : During an event, what compensation is available to facilities that are used for I/Q? What compensation is available post-event for continuing losses experienced by I/Q facilities? Who pays the lost wages of employees who are placed in I/Q as a result of an exposure? Who is responsible for health care services provided to persons subject to I/Q and detained in a facility? Will third-party payors pay for care provided to persons in I/Q? Who pays for patients treated as a result of the emergency? The importance of GOOD RECORDS

19. Ethical Considerations for Public Health Interventions Transparency Protection of Vulnerable Populations Fair Treatment Social Justice Least Restrictive Alternative Source: L.O. Gostin, “Pandemic Influenza: Public Health Preparedness for the Next Global Emergency”, Journal of Law, Medicine & Ethics (Winter 2004), 565-573.

20. Conclusions Public health interventions, including isolation and quarantine, are ancient, honorable and effective Such interventions can cause major disruption to individuals, groups and institutions Health care facilities would benefit from resolution of open legal issues and collaboration with public health officials to plan for the worst The time to answer these questions is before the emergency is upon us

21. Contact Information Jeff Sconyers Vice President and General Counsel Children’s Hospital & Regional Medical Center 4800 Sand Point Way NE, M/S T-0111 Seattle, WA 98105 (206) 987-2044 jeff.sconyers@seattlechildrens.org