Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties (2018)

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27 Table 1. Summary of Legally Significant Declarations and Determinations, cont’d. If there is a valid… Then… • Section 1135 of the Social Security Act: Authorizes the Secretary of HHS to waive or modify certain Authority to Waive Requirements During requirements of Medicare, Medicaid, and the State Children’s National Emergencies [42 U.S.C. § 1320b-5] Health Insurance Program during certain emergencies. Waivers Note: This waiver also requires a declaration may be requested by affected healthcare providers in the of national emergency or disaster by the emergency area during the emergency period. The Secretary President under the National Emergencies may make a waiver retroactive to the beginning of the emergency Act or the Stafford Act. period or any subsequent date thereafter. • Public Readiness and Emergency Preparedness Authorizes the Secretary of HHS to issue a declaration that provides (PREP) Act of 2005 [Pub. L. No. 109-148; immunity from tort liability for claims of loss (except willful 42 U.S.C. §§ 247d-6d, 247d-6e] misconduct) caused by, arising out of, relating to, or resulting from administration or use of countermeasures to diseases, threats, and conditions determined by the Secretary to constitute a present or credible risk of a future PHE. • Section 361 of the Public Health Service Act: This section of the Public Health Service Act authorizes the Regulations to Control Communicable Secretary of HHS to make and enforce regulations “to prevent the Diseases [42 U.S.C. § 264] introduction, transmission, or spread of communicable diseases” into the states and possessions of the United States from foreign countries or possessions or from one state into another. This section also authorizes the apprehension, detention, examination, and conditional release of individuals with certain communicable diseases that are specified in an executive order of the President. • Section 362 of the Public Health Service Act: This section of the Public Health Service Act authorizes the Suspension of Entries and Imports from Secretary of HHS, if he or she determines that a communicable Designated Places to Prevent Spread of disease exists in a foreign country and that introduction of persons Communicable Diseases [42 U.S.C. § 265] from this foreign country poses a serious danger of introducing the disease into the United States, to suspend in the interests of public health the “introduction of persons” from those foreign countries or places for the time necessary to avert the danger, in accordance with approved regulations. This provision may also be applied to the introduction of property. VI. POTENTIAL LIABILITY AND PROTECTIONS Although there are specific federal and state stat- utes and regulations that shield airport actors (employees, contracted or employed first respond- ers) from liability for actions taken in response to declarations of emergency or emergency situations, several specific liability risks and resulting legal considerations must be assessed in developing or revising a communicable disease preparedness plan, including liability protections during an emergency event. Because the immunity offered is not absolute, employees treating patients or handling PHI must protect themselves by refraining from engaging in reckless acts or willful misconduct. A. Public Readiness and Emergency Preparedness Act (and 42 U.S.C. § 247d-6e) As discussed in Section V, declarations issued under the PREP Act protect entities and individuals involved in the development, manufacture, testing, distribution, administration, and use of medical countermeasures.262 The HHS Secretary can make a declaration to provide a specific group of individuals immunity from liability for claims of loss resulting from countermeasures taken in response to a PHE or potential PHE, so long as there is a “credible risk” that in the future a certain disease, condition, or threat is going to become an emergency or is already in the process of becoming one.263 Immunity is not 262 42 U.S.C. § 247d-6d (2017). 263 Id.

28 granted for activities falling outside the scope of the applicable declaration or if the individual or entity engages in willful misconduct. For the declaration to be valid, the countermea- sure itself must fit within a certain description. For example, the countermeasure (1) must have been administered within the effective period of the dec- laration and for a certain type of disease or threat as specified in the declaration and (2) must have a specified population, time, and geographic area.264 If the declaration meets required conditions, then the Secretary can publish it in the Federal Register and specify the relevant countermeasures.265 A follow-up report must be submitted to Congress within 30 days of the declaration providing reasons why the Secretary decided to make the declaration.266 This kind of declaration is extremely useful because it can be employed in situations, specific to limits of time and place, that are serious but have not yet been declared PHEs. Observing the outbreak of a disease and assessing its possible public health risk, the Secretary can determine that the disease may become a PHE, necessitating a countermeasure to protect citizens from the disease in the future, and thus the individuals involved in creating and imple- menting such a countermeasure will need protection from liability arising from this process, so long as they act in good faith with good intention.267 A few of the most recent PREP Act declarations include coun- termeasures to address the Zika virus, Ebola virus, nerve agents and other insecticides, anthrax, pan- demic influenza, and acute radiation syndrome.268 B. Volunteer Protection Act The federal Volunteer Protection Act of 1997 (VPA) extends protections to volunteers for harm caused by their actions or omissions while working on behalf of a non-profit organization or governmen- tal entity. If the volunteer’s actions are covered by licensure laws, the volunteer must be properly licensed, certified, or authorized by the appropriate authority as required by the law in the state in which the harm occurred. Although the VPA does offer some liability protection for volunteers, it does not protect them from civil liability from willful miscon- duct, criminal conduct, gross negligence, reckless 264 Id. 265 Id. § 247d-6e. 266 Id. § 247d-6d. 267 Id. 268 U.S. Dep’t of Health and Human Services, Public Readiness and Emergency Preparedness Act, Phe.Gov, https:// www.phe.gov/Preparedness/legal/prepact/Pages/default. aspx (last visited Mar. 12, 2018). 269 Volunteer Protection Act of 1997, Pub. L. No. 105–19, § 2, 111 Stat. 218. 270 National Conference of Commissioners on Uniform State Laws, Uniform Emergency Volunteer Health Practitioners Act, available at http://www.uniformlaws. org/shared/docs/emergency%20volunteer%20health%20 practitioners/uevhpa_final_07.pdf (last visited Mar. 12, 2018). 271 Id. The states are: Arkansas, Colorado, District of Columbia, Georgia, Illinois, Indiana, Kentucky, Louisiana, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, Tennessee, Texas, and Utah. 272 Id. 273 Id. 274 National Conference of Commissioners on Uniform State Laws, Uniform Emergency Volunteer Health Practitioners Act, http://www.uniformlaws.org/shared/ docs/emergency%20volunteer%20health%20practitioners/ uevhpa_final_07.pdf (last visited Mar. 12, 2018). 275 Id. 276 Michelle Carpenter et al., Deploying and Using Volunteer Health Practitioners in Response to Emergencies: Proposed Uniform State Legislation Provides Liability Protections and Workers’ Compensation Coverage, 3 am. J. Disaster meD., 17 (2008). misconduct, or basically any harm that the volunteer intentionally causes to others while volunteering.269 C. Uniform Emergency Volunteer Health Practitioners Act In 2006, the Uniform Law Commission (ULC) drafted and approved the Uniform Emergency Volun- teer Health Practitioners Act (UEVHPA),270 which 14 states have since enacted.271 The UEVHPA provides a procedure for a state to bring in health providers, who are licensed health practitioners in their home states, to volunteer during emergency situations that require substantial healthcare assistance.272 The UEVHPA allows healthcare providers and other specially trained volunteers in any state in which it is enacted to opt into a nationwide registration system before or during a disaster.273 After opting into the volunteer registration system, a healthcare provider can volunteer at any organized disaster efforts in states where emergencies or PHEs are declared.274 This registration system allows for states to easily check whether out-of-state volunteers are validly licensed in their home state.275 Legal challenges related to healthcare workers coming in from other states for emergency purposes include (1) whether volunteer organizations and volunteers will face civil liability for their actions and (2) how to compensate volunteers injured or killed during response activities.276 In response, the ULC updated the UEVHPA in 2007 to provide volunteers and organizations mobilizing volunteers immunity from negligence claims and to extend workers’ com- pensation benefits when other sources are not avail- able to cover the cost of treatment of injuries arising from volunteer activities. The UEVHPA, however, has not been enacted in the majority of states and

29 does not protect volunteer or voluntary organizations from actions arising out of intentional torts, willful misconduct, breach of contract, or wanton, grossly negligent, reckless, or criminal conduct.277 D. Model State Emergency Health Powers Act MSEHPA authorizes state and local public health officials to use their public health powers to plan and implement response mechanisms to PHEs while also respecting individual rights.278 If adopted by a state, MSEHPA limits liability for the state and individuals operating under the Act but does not include immunity for specific acts of willful miscon- duct or gross negligence, which could subject the state and individuals to civil liability.279 E. Other State Volunteer Protections The Emergency Management Assistance Compact (EMAC), passed by all states and ratified by Congress, allows for a mutual agreement between states and territories to share resources during disasters.280 Like the UEVHPA, EMAC includes articles addressing civil liability but does not protect wanton, grossly neg- ligent, reckless, or criminal conduct.281 EMAC also allows for licensed, out-of-state healthcare providers to provide emergency aid without requiring in-state licensure during the emergency.282 For tort liability and immunity purposes, officers or employees of the state rendering aid under the compact are considered agents of the state requesting assistance.283 All states also feature Good Samaritan laws that can provide liability protection to volunteers sponta- neously aiding in emergencies. Covered actors are extended limited immunity from civil liability for ordi- nary negligence.284 However, who is a covered actor and the circumstances under which immunity arises vary from state to state. Typically, Good Samaritan laws cover spontaneous, uncompensated services or aid that is provided during exigent circumstances. No formal declaration or activation of the volunteer is required. These laws generally do not apply to those employees with a pre-existing responsibility to pro- vide care. Accordingly, first responders and other air- port employees who respond in an emergency would likely not be covered under Good Samaritan statutes even for reacting to an emergency before a formal response is operationalized. The Aviation Medical Assistance Act (AMAA) provides volunteer protection to crew members and passengers who assist passen- gers experiencing medical emergencies on commercial flights.285 The FAA mandates that all U.S. air carrier flights operated under 14 C.F.R. part 121 carry approved first-aid kits, and in those airplanes for which a flight attendant is required and with a maximum payload capacity of more than 7,500 pounds, an approved auto- mated external defibrillator (AED) is also required.286 The AMAA’s Good Samaritan provisions cover the use of such medical equipment, except in cases of gross negligence or willful misconduct.287 Although not legally required, airports such as Chicago’s O’Hare International Airport have an AED program,288 and Nevada requires AEDs in its larger airports.289 A state’s Good Samaritan laws would likely apply for emer- gency assistance with an AED rendered at an airport as it would for other public places. F. Equipment, Planning, and Training Post-incident evaluations and assessments can provide useful information on how to improve strat- egies and plans in place and inform legal authorities as to best practices for disaster preparedness. In case of potential civil liability litigation, evidence related to the incident needs to be preserved, as well as the contact information of the healthcare provid- ers who may have arrived from out-of-state to treat individuals affected by a disaster or PHE. Under OSHA, employers have a general duty to pro- vide a safe workplace to their employees, and employ- ers need to follow a standard of care to dispose of hazardous materials and potentially unsafe workplace practices or conditions to protect their employees.290 277 National Conference of Commissioners on Uniform State Laws, Uniform Emergency Volunteer Health Practitioners Act, http://www.uniformlaws.org/shared/ docs/emergency%20volunteer%20health%20practitioners/ uevhpa_final_07.pdf (last visited Mar. 12, 2018). 278 The Center for Law and the Public’s Health at Georgetown and Johns Hopkins Universities, Model State Emergency Health Powers Act § 804 (2001), https:// biotech.law.lsu.edu/blaw/bt/MSEHPA.pdf (last visited Mar. 12, 2018). 279 Id. 280 Federal Emergency Management Agency, Emergency Management Assistance Compact (EMAC), Fema.Gov, https : / /www.fema.gov/pdf /emergency/nrf /EMA CoverviewForNRF.pdf (last visited Mar. 12, 2018). 281 Id. 282 Id. 283 Id. 284 James G. Hodge, Jr., Lance A. Gable & Stephanie H. Cálves, Volunteer Health Professionals and Emergencies: Assessing and Transforming the Legal Environment, 3 bioseCurity anD bioterrorism 216, 216–23 (2005). 285 Aviation Medical Assistance Act of 1998, Pub. L. No. 105–170, 112 Stat. 47 (codified at 49 U.S.C. § 44701). 286 14 C.F.R. § 121.803(c) (2017). 287 Aviation Medical Assistance Act of 1998, Pub. L. No. 105–170, 112 Stat. 47 (codified at 49 U.S.C. § 44701). 288 Sherry L. Caffrey et al. Public Use of Automated External Defibrillators, 347 new enG. J. meD. 1242–47 (2002). 289 NRS 450B.600 (2017). 290 29 U.S.C. § 651 (2017).

30 (e.g., direct international flights or solely domestic flights), and whether the airport includes a CDC quarantine station. This digest compiles relevant statutes, regulations, and case law related to addressing a communicable disease event at a U.S. airport. While the possibility of transmission of a communicable disease via air travel is certain, thus far there exists very limited case law or tested legal scenarios leading a specific response to such an event. This digest was developed to ensure that cer- tain legal issues are considered when drafting and revising a communicable disease preparedness plan to address future communicable disease events in order to protect the public’s health. An overall conclusion of this digest is that a well- considered, comprehensive response to a communi- cable disease event will allow for all stakeholders involved to know their individual roles and respon- sibilities under the law, leading to a smoother and more effective response. Such a response will involve multi-layers of support, engagement, and practice from varying stakeholders. This digest includes two key documents to assist in the planning for an air- port communicable disease event: (1) a list of stake- holders who will need to be included in a communicable disease response (see Appendix A) and (2) a detailed checklist to highlight key legal considerations to be addressed in the development of a communicable disease preparedness plan (see Appendix C). The legal framework provided in this digest is intended to be used by airport leadership when developing or revising a communicable disease pre- paredness plan for the airport to aid in identifying key legal topical areas that must be addressed. As a part of the standard of care required of employ- ers, planning and training of employees to practice safety measures need to be implemented.291 Public and legal responses to failing to plan to minimize risk will be negative, since accidents, crises, sys- temic failure, and other incidents are foreseeable, and can be dealt with if a plan is in place that is regularly practiced and updated. Employees and volunteers perform crucial roles in responding to and managing communicable dis- ease threats. Under certain circumstances, as described previously, most employees are insulated from civil liability for negligent acts that cause injury, so long as these actions are committed within the scope of their work or volunteer responsibilities. Employees should be provided with training and materials to confirm that they understand the scope of their roles and responsibilities as well as the applicability of laws and regulations that offer cer- tain civil liability protections. CONCLUSION Numerous statutes and regulations are impli- cated for airport attorneys, managers, first respond- ers, and other stakeholders when addressing a potential communicable disease incident occurring at an airport. The legal responsibilities and responses concerning a potentially infectious pas- senger on an aircraft vary significantly, depending on a wide variety of factors including the ownership of the airport (e.g., whether owned and operated by a municipality, non-profit airport authority, or pri- vate entity), the types of direct flights to the airport 291 Id.