When Public Health Goes to Court: The Court and Public Health Emergencies

Transcription

1 When Public Health Goes to Court: The Court and Public Health Emergencies April 2, 2015 Public Health Law Series Webinar:

2 How to Use Webex Audio: If you can hear us through your computer, you do not need to use your phone. Just adjust your computer speakers as needed. Support: If you need technical assistance, call Webex Technical Support at Submitting Questions: All participants are muted. Type a question into the Q & A panel for our panelists to answer. Submit your questions at any time during webinar. Recording: This webinar is being recorded. If you arrive late, miss details or would like to share it, we will send you a link to this recording after the session has ended. Taking Public When Public on Health Tobacco Health Law Regulation Series Goes to Webinar: Court

3 When Public Health Goes to Court: The Court and Public Health Emergencies April 2, 2015 Public Health Law Series Webinar:

4 Moderator Gregory Sunshine, Legal Analyst, Office for State, Tribal Local and Territorial Support, Centers for Disease Control and Prevention J.D., Certificate in Health Law, University of Maryland School of Law Research interests/areas of expertise: Disaster and Public Health Emergency Declaration Law Bioterrorism Preparedness Emergency Response Taking Public When Public on Health Tobacco Health Law Regulation Series Goes to Webinar: Court

5 Presenter Introduction Tina Batra Hershey, Assistant Professor, Department of Health Policy and Management, University of Pittsburgh Graduate School of Public Health J.D., The George Washington University Law School; M.P.H., The George Washington University School of Health and Health Services Research interests/areas of expertise: Legal, policy and ethical issues impacting public health preparedness and authority to close schools Public health science and law in the judiciary Legal preparedness for Tribal public health emergencies Public When Public Health Health Law Series Goes to Webinar: Court 5

6 Presenter Kim Weidenaar, Deputy Director, Network for Public Health Law Western Region J.D., Certificate of Health Law, Arizona Statue University Sandra Day O Connor College of Law Research interests/areas of expertise: Legal Research Emergency Legal Preparedness and Response Health Reform Taking Public When Public on Health Tobacco Health Law Regulation Series Goes to Webinar: Court

7 Presenter Karen Kampa Jaszewski, Attorney, State Court Administrator s Office, Legal Counsel Division J.D., William Mitchell College of Law Research interests/areas of expertise: Criminal Procedure Juvenile Delinquency Procedure Rules of Evidence Taking Public When Public on Health Tobacco Health Law Regulation Series Goes to Webinar: Court

8 The Importance of Judges in Public Health Emergencies Tina Batra Hershey, JD, MPH Assistant Professor University of Pittsburgh Graduate School of Public Health

9 Public Health and the US Constitution Under the US Constitution, the states have primary authority over public health matters through the 10 th Amendment All laws not specifically delegated to the Federal government nor expressly prohibited by it are reserved to the states POLICE POWERS

10 Examples of Police Power Image: Fox News Image: Image: Image:

11 WHY ARE JUDGES IMPORTANT? They are the ENFORCERS of public health policies Courts generally defer to the exercise of police powers by state and local governments

12 WHY ARE JUDGES IMPORTANT? Courts play a critical role as the INTERMEDIARY to balance Rights of Individuals Need to Protect Public Health

13 Jacobson v. Massachusetts 1902 smallpox outbreak in Cambridge, MA Statute compelled vaccination of residents not recently vaccinated Jacobson refused vaccination ordered by Cambridge Board of Health and was fined $5

14 Jacobson v. Massachusetts Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.

15 Jacobson Principles States may issue and enforce reasonable regulations to protect the community s health IF the community demonstrates a compelling reason Courts will defer to public health agencies as long as their decisions are backed by sound public health evidence SCIENCE Public health agencies may not exercise their authority in an arbitrary or capricious manner

16 Judiciary Not a Focus for Preparedness Efforts Despite this important role, most judges have never had any public health law training AND Judges typically do not have a science background

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18 Science Topics What causes disease? Bacteria, viruses How do infectious diseases spread? Airborne vs. contact Incubation period What can be done to control the spread of disease? Isolation, quarantine

19 Legal Topics Federal jurisdiction and crossborder issues Sources of public health law in the state Role, authority and relationship between state and local health departments Specific authority, process, and limitations to isolate, quarantine, close buildings, etc Due process and procedural issues

20 Seminars

21 Public Health Emergencies and the Role of the Judiciary: Examples, Successes, and Failures Kim Weidenaar, JD Deputy Director Network for Public Health Law - Western Region April 2, 2015

22 Road Map What is a Public Health Emergency (PHE)? Examples of declarations Emergency cases outside of declared PHEs Select cases during declared PHEs

23 What is a Public Health Emergency (PHE)? A PHE is an occurrence or imminent threat of an illness or health condition: caused by bioterrorism, epidemic or pandemic disease, or novel and highly fatal infectious agent or biological toxin, that poses a substantial risk of a significant number of human fatalities or incidents of permanent or long-term disability. Such illness or health condition includes, but is not limited to, an illness or health condition resulting from a natural disaster. Model State Emergency Health Powers Act Art. 1, 104 (l)

24 States that Define Public Health Emergency Total: 32 states

25 Examples of PHE Declarations 9/2/05 Louisiana Governor suspends medical professional licensure requirements during Hurricane Katrina 4/26/09 U.S. DHHS Secretary determination of H1N1 Flu Outbreak 8/9/12 Texas Judge declared PHE to control West Nile Virus Outbreak 3/27/14 Massachusetts Governor declared PHE to combat Opioid addition epidemic

26 Courts Commonly Grant Public Health Orders

27 Outside a PHE Declaration: Quarantine Mayhew v. Hickox, No (D. Me. Oct. 31, 2014). October 27, 2014 Hickox released from quarantine in NJ Maine officials requested voluntary compliance with inhome quarantine. Hickox indicated she would not comply with restrictions beyond direct active monitoring past October 30. October 30, 2014 DPH Petition for Public Health Order Request severely limits Hickox s movements Temporary Order Issued Given the gravity of the interests, the court issued a temporary order maintaining the restrictions until full review of the matter.

28 Outside a PHE Declaration: Quarantine Mayhew v. Hickox, No (D. Me. Oct. 31, 2014). October 31, 2014 Order Pending Hearing Court finds that based upon the evidence, an order requiring direct active monitoring is necessary to protect other individuals from the dangers of infection. However, the State did not meet its burden demonstrating that limiting Hickox s movement s to the level requested is necessary to protect others from infection. November 3, 2014 Final Order Issued Parties agree that the October 31 order will remain in effect until November 10, 2014.

29 2009 H1N1 Federal PHE August 13, 2009 NY Emergency Regulation required health care facilities to ensure all employees, who have patient contact, are vaccinated against seasonal and H1N1 influenza by November 30. Field v. Daines, No /2009 (N.Y. Sup. Ct. filed Apr. 14, 2010) October 5 Nurse challenged the requirement, requesting a temporary restraining order. October 14 Court denied the request for TRO, set hearing for October 22. October 22, 2009 the vaccine requirement was suspended due to limited supply of vaccine. Petitions in all cases dismissed as moot.

30 Massachusetts PHE for Opiate Overdose and Abuse March 27, 2014 Governor Patrick declared a PHE to combat Opiate use and overdose: Permitted the Department of Public Health to take several actions, including prohibiting the prescribing and dispensing of hydrocodone bitartrate in a hydrocodone-only extended release drug, until adequate safeguards measures implemented. Zogenix, Inc. v. Patrick, No RWZ (D. Mass Apr. 15, 2014). The manufacturer of Zohydro, banned by the emergency measure, argued that the ban was unconstitutional and requested a preliminary injunction April 15, 2014 Preliminary injunction enjoining enforcement of the emergency order granted, injunction stayed until April 22, Regulations preempted by the FDA s approval of Zohydro ER, unconstitutional

31 Massachusetts PHE for Opiate Overdose and Abuse July 8, 2014 Additional Regulations issued, Zogenix motion to enjoin the new regulations April 22, emergency regulation requires a letter of medical necessary (LMN) verifying other pain management treatments have failed before prescribing Zohydro ER. May 6, regulations restrict handling of Zohydro ER to pharmacists. Court: Grants preliminary injunction for the LMN regulation Denies request against pharmacist-only regulation August 28, 2014 Additional rules implemented, Defendants moved to lift preliminary injunction, granted New regulations required other pain management treatments to be inadequate, rather than fail.

32 Conclusions PHEs are declared for a wide number of circumstances Courts play a critical role in both declared and non declared PHEs Courts readily grant public health orders requested by health officials Courts balance the equities and strongly consider any irreparable harm that would occur absent preliminary injunctive relief Courts monitor situations and circumstances as they change and make decisions accordingly Courts play a critical role in allowing public health officials to protect the public s health, while ensuring individual rights are also respected.

33 The Court and Public Health Emergencies Minnesota s Approach to Isolation/Quarantine Preparedness Karen Kampa Jaszewski Legal Counsel Division MN State Court Administrator s Office April 2015

34 Objectives 34 Identify Minnesota s statutory provisions relating to Isolation and Quarantine Describe the Minnesota Supreme Court s response to the legislative mandates Review Minnesota s published court rules, Isolation and Quarantine Benchbook, and other published resources

35 Statutory Authority Governing Isolation and Quarantine 35 3 Acts provide legal authority for the Minnesota Commissioner of Health and the court to take action in public health matters: Health Threat Procedures, Minn. Stat Isolation and Quarantine, Minn. Stat Tuberculosis Health Threat Act, Minn. Stat

36 Minn. Stat Due Process for I/Q Cases 36 Commissioner can take action or can seek a court order first. If commissioner acts, court action must be initiated immediately. Action may be filed in Ramsey County, in the county where the individual(s) is located, or the adjacent county. Police may apprehend, hold, transport, isolate or quarantine under the court s order or commissioner s directive.

37 Court s Efforts re: Isolation and Quarantine 37 Under a 2005 amendment to Minn. Stat : The court shall appoint counsel when so requested and may have one counsel represent a group of persons similarly situated..... Appointments shall be made and counsel compensated according to procedures developed by the Supreme Court.

38 Publication of I/Q Benchbook Drafted by a consultant 38 Edited and published by the Minnesota State Court Administrator s Office Printed in a hardcover and made available online on the court s public website:

39 Establishment of Defense Attorney Panel Attorneys with interest in the subject matter were recruited 39 Attorneys were trained at an in-person seminar at the Minnesota Judicial Center in fall 2008 Trained attorneys were appointed in 2009 by the Supreme Court and their names and contact information were published on the court s I/Q website

40 Court Rules of Procedure Minn. Stat requires the Supreme Court to develop procedures; procedural rules were promulgated in September 2009: 40 Special Rules for Appointment and Compensation of Counsel in Isolation and Quarantine Cases

41 Isolation and Quarantine Rules Special Rules: 41 Appointment of counsel upon request at district court level. Appointment of counsel for purposes of appeal only if respondent qualifies for IFP. The court may appoint one attorney to represent a group of similarly situated respondents. Court shall attempt to appoint an attorney from the Isolation Quarantine Defense Panel; if none available, then an otherwise qualified attorney. Counsel submits invoices to court administration; payment is at rate established by Supreme Court. MDH pays.

42 Summary of Available Resources 42 The Rules and all other resources, including the Benchbook with court order templates, are available on the Minnesota Judicial Branch Website under Programs and Services, Isolation and Quarantine.

43 Practical Issues for Courts in Isolation/Quarantine Cases Balancing the right to a court hearing vs. need to keep judge, court staff, attorneys, deputies safe 43 Conduct of Hearings, location of participants Use of ITV, telephone Exclusion of Public, including media? Right to Counsel, right to consult privately Reasonable restrictions to ensure safety of counsel, sheriff s deputies, court personnel, etc. Due Process

44 Any questions, comments? 44

45 Presenter Contact Information 45 Karen Kampa Jaszewski Legal Counsel Division MN State Court Administrator s Office karen.jaszewski@courts.state.mn.us

46 Q&A Please type your questions in the Q&A panel. Public Health Law Series Webinar: When Public Health Goes to Court

47 Thank you for attending Please join the Network and Public Health Law Research for this upcoming webinar: Local Immigration Laws and their Impact on Hispanic/Latino Health Thursday, April 16 1 p.m. (ET) More information: networkforphl.org/webinars Public Health Law Series Webinar: When Public Health Goes to Court