From:
Roy Hanson
Child and Family Protection Association, California
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We are very concerned about the Emergency Health
Powers Act (MEHPA).
The purpose of this document is to ensure that
as many people as possible have access to important background information
which is vital to understanding and explaining the magnitude of the problems
with not only the Model Emergency Health Powers Act, but also
with state legislation.
California's Act is based on the Model State Emergency Health Powers Act,
which was written by the Center for Law and the Public Health at Georgetown and
Johns Hopkins Universities for the Centers for Disease Control and Prevention
(CDC).
California's Emergency Health Powers Act, AB 1763, as introduced 1/8/02,
follows the national model (MEHPA) fairly closely. We have drafted
extensive specific amendments to address what appear to us to be the more
significant problems with AB 1763. Our proposed amendments include input
from some national health and legislative organizations who were already very
familiar with this proposed legislation. While these amendments are
specific to California's bill, they should be generally useful in most states.
We have placed our amendments as a separate document on this web site for your
review and use as you see fit. That document has a link to California's
bill, AB 1763 for your reference. Our proposed amendments are still in
draft form - they continue to be worked on. However, when you receive
them, you are free to use our draft amendments as you see fit.
__
We would strongly prefer that this legislation (state Emergency Health Powers
Acts) be defeated, especially in states like California, which already have
laws, programs, and experienced agencies in place to deal with emergencies that
could affect public health.
Some states, such as Texas, have prudently decided to review current law in
order to identify whether anything needs to be changed. In most cases,
passage of laws based on the MEHPA will be overreaching and intrusive, as well
as duplicative and contradictory of current law. However, outright defeat
could prove to be very difficult given some important factors such as:
* the number of very powerful groups which have already endorsed the
MEHPA
* the political makeup of various legislatures
* the complexities of the issues, which most legislators will not
understand, such as interaction with current laws
* the general popular concern about doing something regarding terrorism
* the millions of federal dollars being made available to the states on
condition of having specified programs in place at the state level
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For your information, the following documents are available as pdf files:
1. the Model State Emergency Health Powers Act - dated 10/23/01 (http://www.childandfamilyprotection.org/MEHPA/MSEHPA_102301.pdf)
2. the Model State Emergency Health Powers Act - dated 12/21/01 (http://www.childandfamilyprotection.org/MEHPA/MSEHPA_122101.pdf)
3. the American Legislative Exchange Council (ALEC) analysis of the
most recent (12/21/01) version of the Model Act (http://www.childandfamilyprotection.org/MEHPA/MEHPA_%232_ALEC_analysis.pdf)
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The articles and the documents listed below provide vital background
information concerning this legislation. We have included web links to
make it easier for you to retrieve these documents. In most cases these
links should take you directly to the specific document. We have included
at least a brief excerpt (identified by italics) from each document to give you
an idea what each document is about. This is not an exhaustive listing of
documents or information resources.
________________________________________
This Act grants unprecedented and unchecked powers to the Governors of
the 50 States.
The "new" Model State Emergency Health Powers Act (December 21
version) has apparently been modified to remove those provisions that attracted
the most dissension.... This appears to be a disingenuous effort to mute
criticism while making little substantial change in the proposal.
URL: http://www.aapsonline.org/testimony/emerpower.htm
See http://www.aapsonline.org/testimony/emerpind.htm
for additional information on the emergency powers legislation.
________________________________________
To State, Local, and
Specialty Medical Society Officers and Staff:
Under pressure from the U.S. Department of Health and Human Services, your
state legislature will probably be considering the Model Emergency Health
Powers Act (MEHPA), which would give the Governor unprecedented, dictatorial
powers in the event that he decided to declare a "public health
emergency."
URL: http://www.aapsonline.org/legis/medsocemer.htm
________________________________________
The suspension of traditional American civil liberties, no matter how
necessary or temporary, is a serious issue. So is the prospect, no matter how
unlikely, of thousands of Americans suffering from a deadly epidemic. The
reform of state public-health laws is under way. How well those reforms balance
these two issues may one day affect our lives, health and freedoms in a
profound way.
URL: http://www.sfgate.com/cgi-bin/article.cgi?file=/gate/archive/2002/01/14/healthwatch.DTL
________________________________________
The administration wants all 50 states to adopt a law allowing public
health authorities to take over hospitals, seize drug supplies, quarantine
people exposed to infectious pathogens, draft doctors to treat them, force
patients to be vaccinated, and order police to restrain residents from leaving
contaminated areas.
URL: http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2001/11/25/MN232750.DTL
________________________________________
The voluntary consent of the human subject is absolutely
essential. This means that the person involved should have legal capacity
to give consent; should be so situated as to be able to exercise free power of
choice, without the intervention of any element of force, fraud, deceit,
duress, over-reaching, or other ulterior form of constraint or coercion; and
should have sufficient knowledge and comprehension of the elements of the
subject matter involved as to enable him to make an understanding and
enlightened decision.
URL: http://ohsr.od.nih.gov/nuremberg.php3
________________________________________
"BE IT THEREFORE
RESOLVED: That AAPS calls for a
moratorium on vaccine mandates and for physicians to insist upon truly informed
consent for the use of vaccines."
URL: http://www.aapsonline.org/testimony/vacresol.htm
________________________________________
SMALLPOX AND FORCED
VACCINATION:
WHAT EVERY AMERICAN NEEDS TO KNOW
In this time of great sadness, fear and confusion, Americans have a choice to
make: either we defend the individual freedoms our forefathers fought and died
to give us, or we sacrifice those freedoms and let the terrorists win.
What we choose to do will define who we are as a nation for many years to
come.
The terrorist attacks on New York City and Washington, D.C. on September 11,
2001 and the subsequent threats of biological warfare against US citizens have
prompted calls by public health officials to prepare for mass vaccination campaigns
for anthrax and smallpox. National vaccination programs targeting
civilians, including children, are being proposed in model state legislation
that would give public health officials the power to use the state militia to
enforce vaccination during state-declared health emergencies. While it is
critical for the US to have a sound, workable plan to respond to an act of
bioterrorism, as well as enough safe and effective vaccines stockpiled for
every American who wants to use them, there are legitimate concerns about a
plan which forces citizens to use vaccines without their voluntary, informed
consent.
Barbara Loe Fisher
URL: http://www.909shot.com/smallpoxspecialrpt.htm
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U.S. Department of Health and Human Services
January 25, 2002
Contact: HHS Press Office (202) 690-6343
On Jan. 10, President
Bush signed appropriations legislation providing $2.9 billion for HHS, a
ten-fold increase in the department's funding for bioterrorism preparedness. As
the lead federal agency in preparing for the bioterrorism threat, HHS will work
closely with states, local government and the private sector to build the
needed new public health infrastructure, and to accelerate research into likely
bioterror diseases.
HHS Secretary Tommy G. Thompson has committed to providing funds rapidly,
while ensuring full accountability for the new spending. He announced a first
installment of more than $200 million in funding for state and local resources,
to be made available by Jan. 31.
URL: http://www.hhs.gov/news/press/2002pres/20020125.html
________________________________________
U.S. Department of Health and Human Services
Friday, Jan. 25, 2002
Contact: HHS Press Office (202) 690-6343
HHS Secretary Tommy G.
Thompson announced today plans for the release of the first installment of more
than $200 million in funds from the more than $1 billion in bioterrorism money
designated for states to help prepare their public health infrastructures to
respond in the event of a bioterrorism attack.
URL: http://www.hhs.gov/news/press/2002pres/20020125a.html
________________________________________
U.S. Department of Health and
Human Services
Thursday, Jan. 31, 2002
Contact: HHS Press Office (202) 690-6343
HHS Secretary Tommy G.
Thompson today sent letters to governors detailing how much each state will
receive of the $1.1 billion to help them strengthen their capacity to respond
to bioterrorism and other public health emergencies resulting from terrorism.
The money will allow states to begin planning and building the public health
systems necessary to respond.
States will be permitted to begin immediately spending up to 20 percent of
their allotments, so as to avoid delay in starting preparedness measures.
The remaining 80 percent of the $1.1 billion in state funds will be
released once complete plans have been received and approved.
URL: http://www.hhs.gov/news/press/2002pres/20020131b.html
________________________________________
American Legislative Exchange Council (ALEC)
URL: http://www.alec.org/
[The status of the Emergency Health Powers Act in each State is also available
on this web site.]
ISSUE ALERT
To: ALEC Environmental Health Academy Attendees
From: Sandy Liddy Bourne, EENRA Task Force Director
Jennifer King, HHS Task Force Director
Date: November 8, 2001
Re: Model State Emergency Health Powers Act
In the aftermath of the tragic September 11 attacks on our nation, many
organizations and levels of government are developing plans to address future
threats, particularly biological and chemical attacks against our public
health.
It has come to ALECıs attention that The Centers for Disease Control and
Prevention (CDC), in conjunction with the CDC-funded Center for Law and the
Public Health, has drafted model legislation to provide a framework for
addressing future attacks. This model legislation, on which CDC collaborated
with the National Conference of State Legislatures (NCSL), the National
Governors Association (NGA), the National Association of Attorneys General
(NAAG), the Association of State and Territorial Health Officials, and the
National Association of City and County Health Offices, has a number of
provisions which raise some concern.
Below is a brief synopsis of the Model State Emergency Health Powers Act
(MEHPA)
Synopsis of the Model State Emergency Health Powers Act (MEHPA):
Grants governors broad authority to declare a state of emergency given an
occurrence or imminent threat of an illness or health condition caused by Bioterrorism,
epidemic, or biological toxins
Allows public health officials, among others, broad, unfettered access to
personal health information without patient consent
Requires pharmacists and physicians to report ³unusual² health patterns,
including personal information about persons exhibiting ³unusual² patterns
Grants public health officials broad quarantine powers and allows public health
officials to require medical examinations or vaccinations, under penalty of
committing a misdemeanor offense
Allows public health officials to seize and control personal property and
access to communications, and to engage in any necessary rationing,
quota-setting, or price-fixing
Grants governors exclusive power over the expenditure of funds appropriated for
emergencies
Requires the development of a comprehensive plan to coordinate attack response
ALEC Concerns about the MEHPA:
Strips individuals and families of their rights and liberties at the expense of
government
Represents unnecessary and duplicative legislation given existing state natural
disaster statutes
Provides a number of potential legal loopholes for trial lawyers to extort
Grants overly sweeping takings rights to the government
Fails to consider individual state needs
Consolidates broad power to Public Health Officials, most of whom are unelected
Erects barriers to statesı ability to respond, slowing down response times
Utilizes vague language to define key concepts, including when an emergency can
be declared
Grants additional, duplicative due process rights for quarantined persons
Allows public health authorities to ration drugs and other items, but does not
specify the manner in which these items would be rationed
Ignores potential costs, both dollar and human.
For additional information please contact:
Sandy Bourne at (202) 466-3800 ext. 245 or
Jennifer King at (202) 466-3800 ext. 229
________________________________________
Selected Laws currently in the California Emergency Services Act
Except as noted, all sections below are from the California
Government Code
California's laws (Codes and Regulations which implement the Codes) can be
accessed at the following web sites:
Codes: http://www.leginfo.ca.gov/calaw.html
Regulations: http://ccr.oal.ca.gov/
8566. The Governor is empowered to expend any appropriation for
support of the California Emergency Services Act to carry out the provisions of
this chapter.
8567. (a) The Governor may make, amend, and rescind orders and
regulations necessary to carry out the provisions of this chapter. The
orders and regulations shall have the force and effect of law. Due
consideration shall be given to the plans of the federal government in
preparing the orders and regulations. The Governor shall cause widespread
publicity and notice to be given to all such orders and regulations, or
amendments or rescissions thereof.
(b) Orders and regulations, or amendments or rescissions thereof, issued during
a state of war emergency or state of emergency shall be in writing and shall
take effect immediately upon their issuance. Whenever the state of war
emergency or state of emergency has been terminated, the orders and regulations
shall be of no further force or effect.
(c) All orders and regulations relating to the use of funds pursuant to Article
16 (commencing with Section 8645) shall be prepared in advance of any
commitment or expenditure of the funds.
Other orders and regulations needed to carry out the provisions of this chapter
shall, whenever practicable, be prepared in advance of a state of war emergency
or state of emergency.
(d) All orders and regulations made in advance of a state of war emergency or
state of emergency shall be in writing, shall be exempt from Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2, but shall
be subject to the approval of the Emergency Council. As soon thereafter
as possible they shall be filed in the office of the Secretary of State and
with the county clerk of each county.
GC 8571. During a state of war emergency or a state of emergency the Governor
may suspend any regulatory statute, or statute prescribing the procedure for
conduct of state business, or the orders, rules, or regulations of any state
agency, including subdivision (d) of Section 1253 of the Unemployment
Insurance Code, where the Governor determines and declares that strict
compliance with any statute, order, rule, or regulation would in any way
prevent, hinder, or delay the mitigation of the effects of the emergency.
[for reference: UIC §1253. An unemployed individual is eligible to
receive unemployment
compensation benefits with respect to any week only if the director finds that:
(d) He has been unemployed for a waiting period of one week as defined in
Section 1254, unless this waiting period has been waived pursuant to Section
8571 of the Government Code.]
GC 8572. In the exercise of the emergency powers hereby vested in
him during a state of war emergency or state of emergency, the Governor is
authorized to commandeer or utilize any private property or personnel
deemed by him necessary in carrying out the responsibilities hereby vested in
him as Chief Executive of the state and the state shall pay the reasonable
value thereof. Notwithstanding the provisions of this section, the
Governor is not authorized to commandeer any newspaper, newspaper wire service,
or radio or television station, but may, during a state of war emergency or
state of emergency, and if no other means of communication are available,
utilize any news wire services, and the state shall pay the reasonable value of
such use. In so utilizing any such facilities, the Governor shall
interfere as little as possible with their use for the transmission of news.
8586. The Governor shall assign all or part of his powers and
duties under this chapter to the Office of Emergency Services. The
Director of the Office of Emergency Services shall appoint pursuant to the
State Civil Service Act such employees as are needed.
8587. During a state of war emergency, a state of emergency, or a local
emergency, the director shall coordinate the emergency activities of all
state agencies in connection with such emergency, and every state agency
and officer shall cooperate with the director in rendering all possible
assistance in carrying out the provisions of this chapter.
In addition to the powers herein designated, the Governor may delegate any of
the powers vested in him under this chapter to the Director of the Office of
Emergency Services except the power to make, amend, and rescind orders and
regulations, and the power to proclaim a state of emergency.
Art. 13. State of Emergency
8625. The Governor is hereby empowered to proclaim a state of
emergency in an area affected or likely to be affected thereby when:
(a) He finds that circumstances described in subdivision (b) of Section 8558 [[see
below]] exist; and either
(b) He is requested to do so (1) in the case of a city by the mayor or chief executive,
(2) in the case of a county by the chairman of the board of supervisors or the
county administrative officer; or
(c) He finds that local authority is inadequate to cope with the emergency.
8626. Such proclamation shall be in writing and shall take effect
immediately upon its issuance. As soon thereafter as possible such
proclamation shall be filed in the office of the Secretary of State. The
Governor shall cause widespread publicity and notice to be given such
proclamation.
8627. During a state of emergency the Governor shall, to the
extent he deems necessary, have complete authority over all agencies of the
state government and the right to exercise within the area designated all
police power vested in the state by the Constitution and laws of the State of
California in order to effectuate the purposes of this chapter. In
exercise thereof, he shall promulgate, issue, and enforce such orders and
regulations as he deems necessary, in accordance with the provisions of Section
8567.
8627.5. (a) The Governor may make, amend, or rescind orders and
regulations during a state of emergency that temporarily suspend any state,
county, city, or special district statute, ordinance, regulation, or rule
imposing nonsafety related restrictions on the delivery of food products,
pharmaceuticals, and other emergency necessities distributed through retail or
institutional channels, including, but not limited to, hospitals, jails,
restaurants, and schools. The Governor shall cause widespread publicity
and notice to be given to all of these orders and regulations, or amendments
and rescissions thereof.
(b) The orders and regulations shall be in writing and take effect immediately
on issuance. The temporary suspension of any statute, ordinance,
regulation, or rule shall remain in effect until the order or regulation is
rescinded by the Governor, the Governor proclaims the termination of the state
of emergency, or for a period of 60 days, whichever occurs first.
8628. During a state of emergency the Governor may direct all agencies of
the state government to utilize and employ state personnel, equipment, and
facilities for the performance of any and all activities designed to prevent or
alleviate actual and threatened damage due to the emergency; and he may direct
such agencies to provide supplemental services and equipment to political
subdivisions to restore any services which must be restored in order to provide
for the health and safety of the citizens of the affected area. Any
agency so directed by the Governor may expend any of the moneys which have been
appropriated to it in performing such activities, irrespective of the
particular purpose for which the money was appropriated.
8629. The Governor shall proclaim the termination of a state of emergency
at the earliest possible date that conditions warrant. All of the powers
granted the Governor by this chapter with respect to a state of emergency shall
terminate when the state of emergency has been terminated by proclamation of
the Governor or by concurrent resolution of the Legislature declaring it at an
end.
Circumstances describing an emergency referenced in GC 8625
8558. Three conditions or degrees of emergency are established by this
chapter:
(a) "State of war emergency" means the condition which exists
immediately, with or without a proclamation thereof by the Governor, whenever
this state or nation is attacked by an enemy of the United States, or upon
receipt by the state of a warning from the federal government indicating that
such an enemy attack is probable or imminent.
(b) "State of emergency" means the duly proclaimed existence
of conditions of disaster or of extreme peril to the safety of persons and
property within the state caused by such conditions as air
pollution, fire, flood, storm, epidemic, riot, drought, sudden and severe
energy shortage, plant or animal infestation or disease, the Governor's warning
of an earthquake or volcanic prediction, or an earthquake, complications
resulting from the Year 2000 Problem, or other conditions, other than
conditions resulting from a labor controversy or conditions causing a
"state of war emergency," which, by reason of their magnitude, are or
are likely to be beyond the control of the services, personnel, equipment, and
facilities of any single county, city and county, or city and require the
combined forces of a mutual aid region or regions to combat, or with respect to
regulated energy utilities, a sudden and severe energy shortage requires
extraordinary measures beyond the authority vested in the California Public
Utilities Commission.
(c) "Local emergency" means the duly proclaimed existence of
conditions of disaster or of extreme peril to the safety of persons and
property within the territorial limits of a county, city and county, or city,
caused by such conditions as air pollution, fire, flood, storm, epidemic, riot,
drought, sudden and severe energy shortage, plant or animal infestation or
disease, the Governor's warning of an earthquake or volcanic prediction, or an
earthquake, complications resulting from the Year 2000 Problem, or other
conditions, other than conditions resulting from a labor controversy,
which are or are likely to be beyond the control of the services, personnel,
equipment, and facilities of that political subdivision and require the
combined forces of other political subdivisions to combat, or with respect to
regulated energy utilities, a sudden and severe energy shortage requires
extraordinary measures beyond the authority vested in the California Public
Utilities Commission.
Art. 17. Privileges and Immunities
8655. The state or its political subdivisions shall not be liable
for any claim based upon the exercise or performance, or the failure to
exercise or perform, a discretionary function or duty on the part of a state or
local agency or any employee of the state or its political subdivisions in
carrying out the provisions of this chapter.
8659. Any physician or surgeon (whether licensed in this state or any
other state), hospital, pharmacist, nurse, or dentist who renders services
during any state of war emergency, a state of emergency, or a local emergency
at the express or implied request of any responsible state or local official or
agency shall have no liability for any injury sustained by any person by reason
of such services, regardless of how or under what circumstances or by what
cause such injuries are sustained; provided, however, that the immunity herein
granted shall not apply in the event of a willful act or omission.
8660. No other state or its officers or employees rendering aid in
this state pursuant to any interstate arrangement, agreement, or compact shall
be liable on account of any act or omission in good faith on the part of
such state or its officers or employees while so engaged, or on account of the maintenance
or use of any equipment or supplies in connection with an emergency.
________________________________________
Excerpts from the California Health and Safety Code
The following references in the California Health and Safety Code are
indicative of the fact that California laws currently deal with most of the
same issues as the proposed new Emergency Health Powers Act, such as:
* contagious, infectious, and communicable diseases
* acquisition and disposition of contaminated property
* isolation and quarantine of individuals and groups of individuals
* identification reporting of contagious, infectious, and communicable
diseases
Section 120130 requires the establishment of a listing of reportable diseases,
requires prompt reporting and allows isolation or quarantine for any case of
contagious, infectious, or communicable disease.
Section 120135 allows the Department of Health Services to establish and
maintain places of quarantine or isolation.
Section 120145 allows the Department of Health Services to quarantine, isolate,
inspect, and disinfect persons, animals, houses, rooms, other
property, etc.
Section 120150 allows the Department of Health Services to destroy such
household goods, furnishings, materials, clothing, or animals.
Section 120190 requires each health officer to immediately report every
case of a disease designated for immediate reporting by the department.
Section 120250 requires all physicians, nurses, clergymen, attendants, owners,
proprietors, managers, employees, and persons living with, or visiting any sick
person who is ill of any infectious, contagious, or communicable disease, to promptly
report that fact.