LibertySteward
OUTBREAK LAW IN NEW MEXICO IN THE EVENT OF BIO-TERRORISM OR PLAGUE
posted: July 30, 2005
By: George-Luis Dewey
On Wed July 20th, I attended a seminar on Outbreak Law and the Legal frame work for Public Heath Emergency Preparedness presented by Cliff Rees JD. It outlined state and federal laws, regulations and actions that frame the response to public health emergencies and disasters in New Mexico. It covered the legal issues of mandated isolation, quarantine, vaccination and medical treatment, police powers, resource utilization and the general history of emergency response laws. It was co-sponsored by the UNM center for Disaster Medicine and the Southwest Center for Public Health.
The Overview began with the basics of Public Health Emergency Preparedness Law by examining legal issues arising in a Public Emergency from the context of State Law and Federal Law. Basics of Emergency Health Laws are laws that govern our conduct which come from the Constitution, Common Law, Statutes, and Regulations.
The States have powers under Health Law and the Constitution provides Police Powers by the 10th Amendment:… Powers not given to the Federal Government are reserved to the State’s Public health activities such as the licensure of Health and the establishment of immunization requirements.
Common Law provides the case of Jacobson Vs. Massachusetts:
“The Liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.” The Court Case further qualified Police power and its exercise by stating that police power must:
1) “be exercised based on the necessity of the case and not exercised in ‘an arbitrary and unreasonable manner’ or ‘go beyond what was reasonably required for the safety of the public.’”
2) “have a ‘real or substantial relation” to protecting public health and cannot be ‘a plain, palpable invasion of rights”.
And,
3) “be exercised in the proportion to the public health threat, and the public health measure itself should not pose a health risk to its subject.
Further, New Mexico Health Law is derived from New Mexico State Statutes and regulations:
NM Statute- Public Heath Act, Sections 24-1-1., et seq., NMSA 1978 (from Laws 1919, Chapter 85, Section 10)
24-1-3,C…to investigate, control and abate causes of disease, especially epidemics, sources of mortality and other conditions of public health.
24-1-3,D…to establish, maintain and enforce isolation and quarantine.
24-1-3,E…to close any public place and forbid gatherings of people when necessary for the protection of public health.
By NM Statute - Public Health Act, Sections 24-1-1., et Seq., NMSA 1978 Regulation-7.4.3 NMAC “ Control of Disease and Conditions of Public Heath’, 7.4.3.9.3 NMAC - Department of Health may establish or require isolation or quarantine of any animal, person, institution, community or region.”
NM Statute and Regulation 24-1-15 established a Reporting Requirement under Subsection A. Under regulation 7.4.3 NMAC Subsection B-L established Due Process procedures to detain a person infected with a threatening communicable disease.
The latest of these Health Law Powers was crafted into NM Statute as the Public Health Emergency Response Act or PHERA Sections 12-10A.1., et seq., NMSA 1978 Laws of 2003, Chapter 218. It can be found as House Bill 231 on the New Mexico Legislative Council Service website - www.legis.state.nm.us Bill Finder, 2003 Regular Session, Final Version.
Federal Emergency Health Powers rest with the Constitution, the Commerce Clause to regulate interstate travel and commerce. It is in Federal Statues USC governing Federal Facilities and Territories as well as International Borders. Federal Regulations (CFR) cover the right to establish a Quarantine Authority.
Now given these Laws, how then are the rights most people associate with our traditional understandings of the Constitution treated in such a public health scenario? Do any of them survive the filtering through all of these Federal and State Laws? Truth is, not many, and the ones that do are ringed with serpentina to “preserve” them.
Twelve Practical Questions for New Mexico’s Health were posed by the health community surrounding the understanding and enactment of these laws’
1) Is the situation a Public Health Emergency?
2) Can we declare a public health emergency?
3) Can we examine and test people?
4) Can we treat and vaccinate?
5) Can we share information?
6) Can we isolate and quarantine?
7) Can we force evacuation?
8) Can we obtain health facilities and health care supplies?
9) Can we use government personnel?
10) Are we liable?
11) Who pays for the expenses related to the emergency?
12) How is a public health emergency terminated?
1) Is the situation a Public Health Emergency?
A Public Health Emergency is defined in the PHERA, section 12-10A-3.G NMSA 1978 as the “occurrence or imminent threat of exposure to an extremely dangerous condition or a highly infectious or toxic agent, including a threatening communicable disease, that poses an imminent threat of substantial harm to the population of the State of New Mexico or any portion thereof.”
The definition of a ‘threatening communicable disease” is “ disease that causes death great bodily harm and for which there is no means by which the public can reasonably avoid the risk of contracting the disease”. It does not include acquired immune deficiency syndrome or other infections caused by HIV (PHERA, Section 12-10A-3.L NMSA 1978)
It does not specify that the Governor or the Department or Health May elect to keep secret the nature of the threat. It does not specify that the source of the threat must be revealed.
2) Can we declare a public health emergency? YES
PHERA Section 12-10A-4.,NMSA 1978 states:
Prior to declaring a Public Health Emergency, the Governor, after consultation with the Secretary of Health, may issue an Enhanced Public Health Advisory, if the Governor has reasonable cause to believe that a public emergency may occur.
The Secretary of Health may use the powers and duties conferred under the Public Health Act to investigate the conditions leading to the issuance of the Enhanced Public Health Advisory..
A PHE or Public Health Emergency (PHERA, Section112-10A.5,NMSA 1978)
Is declared by the Governor By Executive Order after consultation with the Secretary of the Department of Health and is coordinated with the Secretary of Public Safety and the State Director of Homeland Security.
The content of the Executive Order will state the Nature of the PHE, the political subdivisions or geographical areas affected, conditions that cause the PHE, expected duration if less than 30 days, public health officials needed to assist and any other provisions necessary to implement order.
A public Health Emergency may be declared in Conjunction with a Civil Emergency.
This is covered under the Civil Emergency Preparedness Act, Sections 12-10-1., et seq. ,NMSA 1978 (Laws of 1969 Chapter 190).
The Governor Can declare an emergency under the Civil Emergency Preparedness Act. An emergency exists in the event of “any man made or natural disaster causing or threatening widespread physical or economic harm that is beyond local control and requiring the resources of the state”.
The Governor “shall exercise direction and control over any and all state forces and resources engaged in emergency operations.”
It does not state when this power of the Governor’s ends and Federal overreach can override his authority. It does not state that the Governor must reveal this to his people in the event it occurs before or after decisions are made that involve his citizens.
3) Can we examine and test people? It DEPENDS.
(PHERA Section 12-10A.-12 NMSA 1978).
Medical tests or examinations may be performed by a qualified person authorized by the Secretary of Health.
A person who refuses examination or testing may be isolated or quarantined if the person has been exposed or is infected with a communicable disease or otherwise reasonably poses a danger to public health.
It does not specify how long detention can last.
4) Can we treat and vaccinate people? It DEPENDS.
(PHERA Section 12-10A.-13 NMSA 1978)
Vaccinations may be performed by a qualified person authorized by the Secretary of Health to prevent infection by a threatening communicable disease and to protect against the spread of that disease.
FDA approved treatment may be administered by a public health official.
A person who is unable or unwilling, for reasons of health, religion or conscience to undergo treatment may be isolated or quarantined pursuant to the procedures in the PHERA.
Minors may be vaccinated unless a physician certifies the vaccination would seriously endanger the minors life or health.
Here it seems the rights of parent’s do not matter, unless they can get a doctor to say the right thing for them in the child’s interest.
This section of the law does not specify that the nature of the vaccine must be disclosed, that it be accepted practice to treat in this manner or that, and it does not guarantee citizen purview over the medication being given, it’s origin, nature of manufacture or contents.
And we may want to consider the following sources of information as well - they may be of interest:
List of Common Vaccines and Their Ingredients
Jon Rappoport interview of ex vaccine researcher
5) Can we share information? YES
Federal Law, as HIPAA - The Health Insurance Portability and Accountability Act of 1996 and its Privacy Rule, 46 CFR Part 164, permits, but does not require, Covered Entities to disclose Protected Health Information PHI without individual authorization for specific public responsibilities including:
45 CFR Part 164 510 (b)(4)- to public or private entities authorized by law or it’s charter to assist in disaster relief efforts, for the purpose of coordinating such entities.
45 CFR Part 164.512 (b) - for public health activities for the purpose of preventing or controlling disease, injury or disability, including the reporting of disease, injury, vital events and the conduct of public health surveillance, public health investigation and public health interventions.
45 CFR Part 164-512 (e)-in response to a court or administrative order, or to a subpoena or discovery request.
45 CFR Part 164-512 (j) - to prevent or lessen a serious threat to the health or safety of a person or to the public and is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat or is necessary for law enforcement authorities to identify or apprehend an individual.
45 CFR Part 164-512 (k) (2) and (3) - to federal officials to assist with intelligence and other national security activities or to protect the President or foreign heads of state.
To the question - Can we share PHI across International Borders - the answer is YES.
The PHERA for purposes of New Mexico State Law (Section 12-10A,.NMSA 1978) states “A declaration of a PHE does not abrogate any disease reporting requirements in the Public Health Act.
The idea that your private information can be shared with other nationalities and their representatives is surely a clear violation of the rights to privacy. Your health history can precede you when you travel - the welcome may not be what you expected.
6) Can we isolate and quarantine people? YES
(PHERA Section 12-10A,-3. (F)., NMSA 1978)
NM State Law says that “isolation” means the physical separation for possible medical care of persons who are infected or who are reasonably believed to be infected with a threatening communicable disease or potential threatening communicable disease from non-isolated persons, to protect against the transmission of the threatening communicable disease to non-isolated persons.
(PHERA Section 12-10A,3,1., NMSA 1978)
“quarantine” means the precautionary physical separation of persons who may have or may have been exposed to a threatening communicable disease or a potentially threatening communicable disease or a potentially threatening communicable disease and who do not show signs or symptoms of a threatening communicable disease, from no-quarantined persons, to protect against the transmission of the disease to non-quarantined persons.
(PHERA Section 12-10A.-8.B NMSA 1978)
“isolation and quarantine shall be the least restrictive means necessary to protect against the spread of a threatening communicable disease or a potentially threatening communicable disease to others and may include confinement at a private home or other private or public premises.
(PHERA Section 12-10A -8.,NMSA1978)
The conditions of the isolation or quarantine shall be isolated persons will be confined separately for quarantines persons.
Health status will be monitored regularly.
24/7 access to health officials and emergency health services.
Must provide food, clothing, shelter, sanitation, medication, treatment, medical and mental health care.
Communication guaranteed with family, household members, legal advocates and the media.
Accommodation for religious worship or practice.
Updates on the status of the PHE.
Household or family member may enter an isolation or quarantine area but may then be subject to isolation or quarantine themselves.
No discrimination. Job protection for persons isolated or quarantined. (PHERA Section 12-10A-16.NMSA 1978)
Legal Process. (PHERA allows for Temporary Hold Section 12-10A-9., NMSA 1978) it also allows for Ex Parte Order (PHERA Section 12-10A -7,.NMSA 1978) and Due Process procedures (PHERA Section 12-10A-7.,NMSA 1978)
Federal Law falls under Health and Human Services Secretary’s Authority 42 U.S.C. &264,266
The Public Health Service is to cooperate with and aid State and local authorities in the enforcement of their quarantine and other health regulations. 42 U.S.C. &243
The director of the CDC may take “reasonably necessary measure” to prevent spread between the States if local efforts are “insufficient”. 42 C.F.R. & 70.2 (2002)
This author believes that many people may not feel reasonably assured by the assurances of a government that does not feel compelled to respect the convenes of the Geneva Conventions, because as Hollywood movies from the past have indicated to us this could include the vaporization of a given community overtaken by a super bug. Accountability is everything when someone is going to assert that they will do what is “reasonably necessary” and have no other defining or limiting parameters of performance standards and respect for criminal law limitations on human behavior. It would be advisable to ask the government to behave properly towards its inhabitants.
The Secretary may require permits for interstate travel; individuals with specified diseases may be detained. 42 C.F.R. & 70.5,70.6 (2002)
7) Can we force an evacuation? YES
(New Mexico Law)
New Mexico’s Constitution Article V, Section 4- Grants Powers to the Governor to call out the militia (ie., NM National Guard), (although many dispute that the Guard is a true militia as defined by the Constitution because the common citizen is the militia and not an official force - (my comment on the opinion of others)). The Governor has these power to preserve the public peace, execute the laws, suppress insurrection and repel invasions. (State vs. Swope 38 NM 53 (1933)
Section 20-2-4 NMSA 1978 states that the Governor may declare martial law to preserve law and order (Laws of 1987, Chapter 318)
The New Mexico Riot Control Act (Sections 30-20-4 to 30-20-9., NMSA 1978 (Laws of 1969, Chapter281) - Section 30-20-6A., NMSA 1978 states that the Governor can place emergency restriction during a state of emergency , including “other activities the Governor reasonably believes should be prohibited to help maintain life, property or the public peace.”
It is the opinion of the author that all of these laws could enable a hidden vendetta if such a plan existed, such as the 1972 fascist purge in Chile proved could happen, because the language is so vague and open-ended and there is no civil rights test that can be applied to test the criteria of such an action initiated by public officials. I believe that is because we have drifted too far from Constitutional Intent and tried to reinvent the wheel. We have delegated omnipotence to federal agencies never intended to have that much power. Also, one merely has to look at the dates of these knee-jerk laws to see the zeal of public officials who so adeptly sense the poignancy of the time and quickly become the champions of reactive crime legislation such as get tough policies etc. - otherwise a knowledge of events at the time tell all - 1933 - collapse of the US Economy into bankruptcy, when the Gold Standard dried up and we became a debtor nation and 1969 which was the peak of the Vietnam War and scruffy and unruly protestors were everywhere, requiring ’tough’ legislation of course! That’s what politicians do, they play our insecurities like a violin! Or a lyre as the case may be…
8) Can we obtain facilities and supplies? YES
New Mexico Law
(PHERA, Section 12-10A-6a, (1), NMSA 1978)
The Secretary of Health may utilize, secure or evacuate health facility for public use.
(PHERA, Section12-10A-3.E.(3), NMSA 1978)
A health facility includes a federal facility when the appropriate federal entity provides its consent.
I believe this leaves the State basically toothless as it grants no autonomous power over federal facilities on STATE land.
(PHERA , Section12-10A-6A. (2), NMSA 1978) - (PHERA, Section 12-10A-6.B., NMSA 1978)
The Secretary of Health may inspect , regulate, or ration health care supplies and to alleviate statewide or regional shortages of health care supplies, may control, restrict and regulate the allocation, sale, dispensing or distribution of health care supplies.
Of course it is the opinion of the author that this may have some unexpected consequences when state officials who interpret this language may chose to take from the common citizen with medical problems his or her back-up supplies and medications for their own maintenance and care. The law does not specify that they cannot.
New Mexico State Law in the Emergency Procurement Section of the NM Procurement Code, Section 13-1-127., NMSA 1978 was amended in 2002 (Laws of 2002, Chapter 84) to allow emergency procurement for emergency conditions, including fires and acts of terrorism when “planning and preparing for an emergency response”.
Federal Law provides the Strategic National Stockpile (SNS) (42 USC Section 300hh-12)
This plan has stockpiles of 12 hour “push Packages” of drugs, vaccines and other supplies positioned around the country.
9) Can we use non government personnel? YES
(Emergency Management Assistance Compact (Sections 12-10-11 through 13, NMSA 1978)
Provides the condition of approval by Department of Health or the Department of Public Safety of out-of-state and in-state license holders during an emergency whether or not the state is a party to the Emergency Management Assistance Compact.
(Emergency Management assistance Compact Section 11-15-1., et seq., NMSA 1978: Laws of 1999, Chapter 89)
PHERA defines “public health official” as the Secretary of the Department of Health or designee, including qualified public or private individuals or groups. (Section 12-10A-3.H.., NMSA 1978)
The EMS Act (As amended by Laws of 2003, Chapter 243) provides that the Secretary of the Department of Health may waive EMT licensure requirements as needed during a declared emergency. (Section 24-10B-5A., NMSA 1978)
Federal Law created the Volunteer Protection Act of 1997, 42 USC Sections14501-14505 and it provides federal liability protection for all volunteers acting under the auspices of non-profit organizations or governmental entities.
10) Are we liable? LIMITED
(PHERA, Section12-10A-14., NMSA1978)
To the extent permitted by the New Mexico Tort Claims Act - Including: the State and its political Sub-divisions, Public officials, Approved volunteers.
11) Who pays for expenses related to the emergency?
New Mexico State Law - (PHERA, Section12-10A-15.,NMSA 1978)
The State shall pay just compensation to the owner of health care supplies, a health care facility or any other property that is lawfully taken or appropriated for temporary or permanent use during a public health emergency.
Compensation shall include lost revenues and expenses due to the taking of property, including a health facility.
The State Attorney General shall make a preliminary determination whether compensation is due.
It provides the Right to Appeal to State District Court.
Federal Law states that PHEs are not specifically covered by the Stafford Disaster Assistance and Emergency Relief Act of 1988 “man-made events” excluded except for fires, floods and explosions), but federal assistance may be available on a case-by-case basis after a Presidential Declaration at the request of the Governor. (42 USC Section 5121, et seq.
An example used was the Cerro Grande Fire, 2000 Mental Health Services only).
Smallpox Emergency Personnel Protection Act of 2003.
12) How is a PHE terminated?
New Mexico State Law (PHERA, Section12-10A-5. D and E., NMSA 1978)
The Governor after consultation with the Secretary of the Department of Health:
-
•May determine within 30 days of issuing the Executive Order to end it or not or it automatically is terminated after 30 days.
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•Unless renewed by the Governor in Consultation with the Secretary of the Department of Health, (who shall consult with the Secretary of the Department of Public Safety and the Director for Homeland Security) to ensure public safety during termination procedures.
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•The Conclusions of the Seminar are that the Law allows public health workers to respond in many ways to a PHE while protecting individual civil liberties.
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•The Governor can declare a PHE under the NM Public Health Emergency Response Act enacted by the legislature and signed by the Governor effective April 6, 2003.
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•The Federal Government can and will become involved under specific circumstances.
It is the opinion of this author that the assurances from State and Federal officials that guarantees that civil rights have been respected in the drafting of this legislation are actually thinly guised encroachments into civil rights protections before the Law."
While I understand the basic motivations of the legislators I am dismayed that they chose to create a multi-headed hydra monster of perceived control more characteristic of a gulag than a community governed under a civic conscience and a guaranteed constitution of protected rights. This Agency driven response is too rooted in a hunger for total control and that depends on an inner insecurity and culture of helplessness exhibited by a consumer that calls for help as he does for help with the garbage - he expects someone else to come and take care of it. That is a weak culture of dependant helplessness that will eventually be engrained in our people. I do not believe that ultimately the gulag will be safer, because it can never be safe from itself. I trust the Constitution and the integrity of my neighborhood and its sense of community and sustainability. Gulags are not sustainable. The more open a society is the more transparent it becomes. If we all went around naked I guarantee we would hide a lot less from each other! I think, and it is my considered opinion, that we all lose in the deepest sense of the word when this much erosion takes place in the heart of our freedoms. I further believe that the Governor would be well served if he had a sense for the People’s reasonable need for assurances where the preservation of their civil rights are concerned. I would recommend a non-lawyer group of citizen volunteer ombudsmen delegated to protect the Governors interest in civil rights protection out of concern for his people.
Websites mentioned at the seminar:
New Mexico Legislative Council Service
Centers for Disease Control And Prevention
Public Health and Preparedness Response
Public Health Practice Program Office
The Center for Law and the Public’s Health
Health Insurance Portability And Accountability Act of 1996 HIPAA
UNM Center For Disaster Medicine: 505-272-6279
I wish to thank Clifford M. Rees for the material he provided to help with the publishing of this article. I have tried to be as journalistically clear that my comments are my own and his material has been correctly quoted with extensive references I trust have been correctly noted. If any corrections need to be made I will attend to those ASAP. I would like comments from the readers on civil rights issues you may see emerging from this material.
