The Model State Emergency Health Powers Act

 - as of October 23, 2001

Prepared by

The Center for Law and the Public's Health

at Georgetown and Johns Hopkins Universities

For the Centers for Disease Control and Prevention In Collaboration with the:

National Governors Association,

National Conference of State Legislatures,

Association of State and Territorial Health Officials, National Association of City and County Health

Officers, and National Association of Attorneys General

I have before me, as I write, a complete copy of the 38-page, 81/2 x 11 Model State Emergency Health Powers Act. It was sent to me by a friend. Due to its importance, I am typesetting some of the information con­tained Within it. But I also provide it in view of the fact that, according to Great Controversy, a final crisis over the Sabbath is looming, will begin in the United States, and could involve a health threat as one reason for the emergency powers to be granted at that time, to deal With insubordinate citizens.

What would be required for any State legislature to enact this Health Powers Act? Simply wave the set of papers before the eyes of frightened legislators and ask them to enact it, so it can be quickly sent to the governor's desk for signing into law. It may already have been quietly enacted in many states. Many of the provisions are understandable; others appear to vio­late personal property, movement, and health rights.

Preamble: "Emergency health threats, including those caused by bio-terrorism and epidemics, require the exercise of extraordinary government functions. Be­cause each state is responsible for safeguarding the health, security, and well-being of its people, State gov­ernments must be able to respond, rapidly and effectively, to potential or actual public health emergences. The Model State Emergency Health Powers Act (the 'Act') therefore grants specific emergency powers to State governors and public health authorities" (pg 6).

"The Act authorizes the collection of data and records, the control of property, the management of persons, and access to communications" (p. 6).

"Public health laws and our courts have tradition­ally balanced the common good with individual civil liberties. . The Act strikes such a balance. It provides State officials with the ability to prevent, detect, man­age, and contain emergency health threats without un­duly interfering with civil rights and liberties" (pp. 6­7).

"Section 103. Purposes. The purposes of this Act are- (a) To authorize the collection of data and records, the control of property, the management of persons, and access to communications. (b) To facilitate the early detection of a health emergency and allow for immedi­ate investigation of such an emergency by granting ac­cess to individuals' health information under specified circumstances. (c) To grant State officials the au­thority to use and appropriate property as necessary for the care, treatment and housing of patients, and for the destruction of contaminated materials. (d) To grant State officials the authority to provide care and treatment to persons who are ill or who have been ex­posed to infection" (p. 9).

"Section 201. Reporting illness or health condi­tion. A health care provider, coroner, or medical ex­aminer shall report all cases of persons who harbor any illness or health condition that may be caused by bio-terrorism, epidemic or pandemic disease, or novel and highly fatal infectious agents or biological toxins"(p. 12)­

"Pharmacists. A pharmacist shall report any un­usual or increased prescription rates, unusual types of prescriptions, or unusual trends in pharmacy vis­its" (p. 12).

"Manner of reporting. The report shall be made in writing within twenty-four hours to the public health authority" (p. 12).

"Section 303. Emergency powers. During a State of public health emergency, the governor may (1) Sus­pend the provisions of any regulatory statute prescrib­ing procedures for conducting State business or the orders, rules, and regulations of any State agency. . (2) Utilize all available resources of the State govern­ment and its political subdivisions, as reasonably nec­essary to respond to the public health emergency. . (4) Mobilize all or any part of the organized militia [police, national guard, etc.] into service of the State" (p. 17).

"Coordination. The public health authority shall coordinate all matters pertaining to the public health emergency response of the State. . [including] collabo­rating With relevant federal government authorities, elected officials of other states, private organizations-, or private sector companies" (p. 17).

"Access to and control of facilities and prop­erty-generally. The public health authority may ex­ercise, for such period as the state of public health emergency exists, the following powers concerning fa­cilities, materials, roads, or public areas­

"(a) Use of facilities. To procure, by condemna­tion or otherwise, construct, lease, transport, store, maintain, renovate, or distribute materials and facili­ties as may be reasonable and necessary for emergency response, with the right to take immediate possession thereof. Such materials and facilities include, but are not limited to, communication devices, carriers, real estate, fuels, food, clothing, and health care facilities.

"Section 402. Access to and control of facilities and property-generally. (b) Use of health care fa­cilities. To compel a health care facility to provide ser­vices or the use of its facility if such services or use are reasonable and necessary to emergency response. The use of the health care facility may include, transferring the management and supervision of the health care facility to the public health authority for a limited or unlimited period of time" (p. 20).

"(c) Control of materials. To control, restrict, and regulate by rationing and using quotas, prohibitions on shipments, price fixing, allocation or other means, the use, sale, dispensing, distribution, or transporta­tion of food, fuel, clothing and other commodities, al­coholic beverages, firearms, explosives, and combus­tibles, as may be reasonable and necessary for emer­gency response.

"(d) Control of roads and public areas. (1) To prescribe routes, modes of transportation, and desti­nations in connection with evacuation of persons or the provision of emergency services. (2) To control in­gress and egress (entrance and exit] to and from any stricken or threatened public area, the movement of persons within the area, and the occupancy of premises therein" (p. 21).

"Safe disposal of infectious waste. . (b) Control of facilities. To compel any business or facility autho­rized to collect. . infectious waste. . to accept infec­tious waste, or provide services. .

"(c) Use of facilities. To procure, by condemna­tion or otherwise, any business or facility authorized to collect. . infectious waste. . with the right to take immediate possession thereof" (pp. 21-22).

"Section 404. Safe disposal of corpses. . (b) Pos­session. To take possession or control of any corpse . .

(c) Control of facilities. To compel any business or facility authorized to embalm, bury, cremate. . to ac­cept any corpse or provide the use of its business or facility" (p. 22).

"Control of health care supplies. . (b) Rationing . . In making rationing or other supply and distribu­tion decisions, the public health authority may give preference to health care providers, disaster response per­sonnel, and mortuary staff" (p. 23).

"Section 406. Compensation. The State shall pay just compensation to the owner of any facilities or ma­terials that are lawfully taken or appropriated. . Com­pensation shall not be provided for facilities or mate­rials that are closed, evacuated, decontaminated, or destroyed when there is reasonable cause to believe that they may endanger the public health" (p. 24).

"Section 501. Control of individuals. During a state of public health emergency, the public health au­thority shall use every available means to prevent the transmission of infectious disease and to ensure that all cases of infectious disease are subject to proper control and treatment.

"In Section 501, the text immediately following the heading 'Control of individuals' was adapted from Cali­fornia Health & Safety Code § 120575 (West 1996).

"Section 502. Mandatory medical examinations.

The public health authority may exercise, for such pe­riod as the state of public health emergency exists, the following emergency powers over persons­

"(1) Individual examination or testing. To com­pel a person to submit to a physical examination and/or testing as necessary to diagnose or treat the person [underlining mine] . .

"(3) The medical examination and/or testing shall be performed immediately upon the order of the pub­lic health authority without resort to judicial or quasi-­judicial authority.

"(4) Any person refusing to submit to the medical examination and/or testing is liable for a misdemeanor . . The public health authority may subject the indi­vidual to isolation or quarantine as provided in this Article" (p. 26).

"Section 503. Isolation and quarantine. . (c) Due process. . (2) The public health authority may isolate or quarantine, a person without first obtaining a writ­ten ex parte order from the court if any delay in the isolation or quarantine of the person would pose an immediate threat to the public health" (p. 27).

'Section 504. Vaccination and treatment. The public health authority may exercise, for such period as the state of public health emergency exists, the fol­lowing emergency powers over persons­

"(1) In general. To compel a person to be vacci­nated and/or treated for an infectious disease [under­lining mine]" (p. 28).

"Section 702. Public Health Emergency Plan. (a) Content. The Commission shall, within six months of its appointment, deliver to the governor a plan for re­sponding to a public health emergency, that includes provisions for the following. . "(17) Other measures necessary to carry out the purposes of this Act" (p. 35). "Section 802.

Rules and regulations. The public health authority is authorized to promulgate and imple­ment such rules and regulations as are reasonable and necessary to implement and effectuate the provisions of this Act. The public health authority shall have the power to enforce the provisions of this Act through the imposition of fines and penalties, the issuance of or­ders, and such or remedies as are provided by law" (p. 36).

"Section 804. Liability. . Neither the State, its po­litical subdivisions, nor, except in cases of gross negli­gence or willful misconduct, the governor, the health authority, or any other State official referenced in this Act, is liable for the death of or any injury to persons, or damage to property, as the result of complying with or attempting to comply with this Act, or any rule or regulations promulgated pursuant to this Act. (b) Pri­vate liability. . [refers to protection from liability for any individual, firm, etc., who obeys State orders in such matters]" (pp. 37-38). 

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