PRDA - M:Legal Coordination for Preparedness

The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities

CDC Collaborating Center Promoting Health through Law
Hampton House, Room 580
624 North Broadway
Baltimore, Maryland 21205-1996
(410) 955-7624; (410) 614-9055 fax
www.publichealthlaw.net

Public Health Emergency Legal Preparedness Checklist

Interjurisdictional Legal Coordination for
Public Health Emergency Preparedness
December 2004
A. Introduction. This is one of three checklists prepared by the Center for Law and the Public’s
Health at Georgetown and Johns Hopkins Universities (Center) for voluntary use by county, city,
state, and federal public health agencies in assessing their legal preparedness for public health
emergencies. In this context, public health emergencies include bioterrorist and other intentional
attacks, emerging infectious disease epidemics, natural disasters, and other events with potentially
catastrophic impacts on human health.
B. Background. State, county, and city public health departments are the front line of the Nation’s
defense against a wide spectrum of public health emergencies. Following the terrorist attacks of
September 11, 2001, and the immediately ensuing anthrax attacks, these agencies have acted
decisively to strengthen their public health emergency response capacity. In partnership with the
Centers for Disease Control and Prevention (CDC), other federal agencies, and national public
health organizations, they have bolstered their disease surveillance and investigation abilities,
built new telecommunications and laboratory testing capacity, trained staff in advanced
emergency response skills, developed joint operating protocols with emergency management
agencies, and taken action on additional, related fronts.
Legal preparedness is an integral part of comprehensive preparedness for public health
emergencies. To assess their existing legal preparedness, state health departments have made
extensive use of the draft Model State Emergency Health Powers Act, researched and published
in December 2001 by the Center at the request of CDC.
Ongoing contact with state and local public health agencies indicated they could find additional
tools helpful in assessing their public health emergency laws. Following consultation with the
Association of State and Territorial Health Officials (ASTHO) and the National Association of
County and City Health Officials (NACCHO) in 2003, CDC requested the Center to prepare
checklists that public health agencies could use, at their own initiative, to assess three especially
important components of their legal preparedness as follows:

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1.
2.
3.

Interjurisdictional legal coordination for public health emergency preparedness;
Local public health emergency legal preparedness and response; and
Civil legal liability related to public health emergencies.

All three checklists are accessible through the Center’s website at www.publichealthlaw.net/
Resources/BTlaw.htm. The checklists are in the public domain and may be duplicated and
disseminated freely.
C. Methods. Center faculty researched and developed the checklists through a deliberative process
that included legal research and analysis of agencies’ functional roles in public health
emergencies, review of public health emergency preparedness plans, and communication with
public health practitioners and legal counsel. The principal authors are Jason W. Sapsin, JD,
MPH, Center Scholar ([email protected]) (interjurisdictional checklist); James G. Hodge, Jr.,
JD, LLM, Center Executive Director ([email protected]) (local checklist); and Lance A. Gable,
JD, MPH, Center Senior Fellow ([email protected]) (liability checklist.)
The checklists are offered as tools to facilitate review of public health agencies’ practical public
health legal preparedness. While intended to cover many aspects of the three selected focal areas,
users may tailor the checklists to their own priorities and objectives.
D. Organization. The checklists present questions and comments that relate to specific legal
aspects of emergency preparedness and response operations. Each checklist document contains
two principal sections: (1) A “Quick Reference,” that lists the checklist’s questions; and (2) the
detailed checklist with an introduction to the issues it addresses and explanatory comments or
suggestions provided for each question.
These sections are organized according to the four phases of incident management found in the
National Response Plan: Prevention, Preparedness, Response, and Recovery. This common
framework has been widely adopted by the emergency response and public health communities.
Within each phase, questions are further organized into subcategories (e.g., Property, People,
Data Sharing, Responders, and Private-Sector Entities) that differ in each checklist according to
the subject matter. The local public health emergency preparedness checklist includes crossreferences to provisions of the draft Model State Emergency Health Powers Act. Each checklist
also includes endnotes with references to publications, laws, judicial rulings, and other sources.
E. Suggestions for Use. The checklists are designed for self-initiated use by public health officials,
their legal counsel, and their public- and private-sector partners. The Center suggests that users
view the checklists as guides to reviewing the key legal issues within each topical area. Review
is likely to lead to additional questions within specific agencies and jurisdictions. The value of
the checklists may be enhanced through a collaborative review process that involves a team or
committee whose members represent the multiple operational and legal perspectives critical to
effective emergency preparedness and response. This approach could have the additional benefit
of stimulating enduring partnerships and mutual understanding of the legal framework for
emergency response.
F. Disclaimer. The Center offers the checklists merely as aids to review and analysis of legal issues
related to public heath emergency preparedness and response. The checklists are not, and should
not be used as, legal advice. Public health agencies should consult their legal counsel for legal
advice. The CDC Public Health Law Program provided financial support for the Center’s
research and development of the checklists under CDC cooperative agreement U50/CCU323385.

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ASTHO and NACCHO staff reviewed and commented on drafts of the checklists. The
checklists, however, do not necessarily represent the official views of CDC, ASTHO, or
NACCHO or members of these entities.
G. For More Information. More information about the three checklists and other resources related
to public health’s legal preparedness for public health emergencies are available from the Center
(www.publichealthlaw.net), ASTHO (www.astho.org), NACCHO (www.naccho.org) and the
CDC Public Health Law Program (www.phppo.cdc.gov/od/phlp). All four organizations
welcome requests for information and feedback on the checklists and their application. For
additional information about the checklists, please contact the specific authors noted in C., above,
or James G. Hodge, Jr., J.D., LL.M., Executive Director, Center for Law and the Public’s Health
at [email protected]; or Anthony Moulton, Ph.D., Co-Director, CDC Public Health Law
Program at [email protected].

Quick Reference:
Interjurisdictional Legal Coordination For Public Health Emergency Preparedness
Subject Category
Checklist Question
I. Preparedness
A. Property
Federal 1. Do federal, state and local regulatory requirements differ with respect to property to be
exchanged during an emergency?
State
2. Has the state undertaken any obligation to share supplies with other jurisdictions in the
event of an emergency (e.g., EMAC)?
3. Has the state confirmed that material it may send or receive during an emergency is
acceptable for use in the jurisdiction under governing regulations?
4. Are hospitals and other health-care facilities required to maintain emergency plans under
licensing/credentialing/ reimbursement standards and, if so, do they have an interjurisdictional component?
Local
5. Are there licensing or regulatory regimes peculiar to the local jurisdiction?
B. People
Federal
6. Do federal employees face licensing or credentialing barriers to working in states?
7. Is federal contingency planning required to address and coordinate large migrations of
refugees and/or sick persons across state boundaries?
State
8. Are there licensing or regulatory regimes peculiar to the state jurisdiction?
9. Are state planners required to anticipate large migrations of refugees and/or sick persons
across state boundaries?
Local

10. Are there licensing or regulatory regimes peculiar to the local jurisdiction?

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√

C. Data sharing
Federal
11. What disease surveillance information sharing mechanisms are in place?
12. Are there requirements to share preparedness/ prevention/ readiness assessment results
with state and local partners?
State
13. What disease surveillance information sharing mechanisms are in place?
14. Are there requirements to share preparedness/ prevention/ readiness assessment results
with partners?
Local
15. What disease surveillance information sharing mechanisms are in place?
16. Are there requirements to share preparedness/ prevention/ readiness assessment results
with partners?
D. Administration
Federal
State
17. What mutual aid agreements exist with bordering states or other jurisdictions (e.g.,
EMAC)?
18. Do such agreements apply to pre-emergency preparations?
19. Has the legally designated state official formulated mutual aid plans and procedures
necessary to implement the state’s obligations under mutual aid agreements (e.g., EMAC), if
any?
20. Are EMACs standardized across states?
21. Has the state developed EMAC reimbursement and dispute resolution mechanisms?
Local
22. To what mutual assistance agreements is the local government a party and what
obligations do they impose?
23. Under what circumstances can a local government ask for or require assistance from its
state government or neighboring local or state governments?
II. Response
A. Property
Federal
24. Can the federal government re-allocate committed supplies between jurisdictions once
en-route during an emergency?
25. Can the federal government seize state, local or private facilities?
State
26. Once a state takes possession of federal emergency assistance materials, can it be
required to relinquish them to another state?
27. Can the state seize federal, county/municipal or private property during an emergency?
28. Does NIMS affect states’ authority to dispose of property during emergencies?
Local
29. Under what circumstances must local authorities relinquish control of materials or
resources to the state or its neighbors?
30. Does NIMS affect the designated local lead emergency management official’s ability to
commit local material resources?
31. Can local officials seize federal, state or private property during an emergency?
32. Can local officials close federal, state or private buildings during emergencies (e.g.,
courthouses, state universities, post offices)?

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B.

People
Federal
33. May federal personnel practice their licensed or regulated professions in responding to
an emergency in the host jurisdiction?
34. May federal personnel in licensed or regulated professions practice in related specialties
in responding to an emergency in the host jurisdiction?
35. Can the federal government use or authorize the use of unlicensed personnel to perform
professionally regulated functions in an emergency in the host jurisdiction?
36. May the federal government impose quarantine orders on residents inside a state’s
jurisdictional boundaries?
State
37. Who has authority over federal, neighboring state and local employees responding to
emergencies within the state?
38. Who has authority to impose personal control measures (e.g., quarantine and isolation)
during an emergency?
39. May out-of-state state personnel practice their licensed or regulated professions in
responding to an emergency in the host jurisdiction?
40. May state personnel practice their licensed or regulated professions in responding to an
emergency in a neighboring jurisdiction?
41. May the State use out-of-state unlicensed personnel?
42. May out-of-state members of licensed or regulated professions practice in related
specialties in responding to emergencies in the host jurisdiction?
Local
43. Who has authority over local government personnel if they participate in emergency
response in a neighboring jurisdiction?
44. Do local authorities have authority over the actions of non-local volunteers operating
within the locality?
45. When can volunteer emergency personnel be asked to perform duties outside the
locality?
46. How should the locality deal with using unlicensed volunteer personnel from outside the
jurisdiction?
47. Can personnel committed under emergency plans be sent out of the locality?

C. Administration
Federal
48. Can a state be compelled to accept federal emergency assistance?
49. Can state borders be closed by the federal government and under what authority?
State
50. What notification procedures exist when ID outbreaks or public health emergencies are
suspected or confirmed?
51. What kinds of health information can be shared with state and/or federal counterparts?
52. How does NIMS affect state officials’ authority to implement disease control measures?
53. Can a state close its borders to interstate traffic?
54. Can a state be compelled to accept federal emergency assistance?
55. Does NIMS affect state officials’ liability?
Local
56. Do local and state agencies share overlapping authorities?
57. Can local authorities close their jurisdictions to neighbors?

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III. Recovery
A. Property
Federal
58. What liability does the federal government bear for the malfunction or misuse of federal
materials sold or given to the host jurisdiction?
59. What liability does the federal government bear for damage to non-federally owned
materials transported by the federal government?
State
60. What liability does the state government bear for the malfunction or misuse of state
materials donated to the host jurisdiction?
61. What liability does the state bear for damage to non-state owned materials transported by
the state government at the request of another jurisdiction?
62. How does NIMS affect state officials’ liability?
Local
63. What liability does the local government bear for damage to non-locally owned materials
transported by the local government at the request of another jurisdiction?
64. What liability does the local government bear for the malfunction or misuse of locally
owned materials donated to the host jurisdiction?
B. People
Federal
65. Are federal employees liable to local governments, state governments, the federal
government and private parties for actions taken in response to an emergency?
66. Are federal volunteers working with local governments, state governments, the federal
government itself and private parties liable for actions taken in response to an emergency?
State
67. Under what circumstances are government employees liable to other state governments,
federal government and private parties for actions completed in-state in response to an instate or out-of-state emergency?
68. Are state volunteers liable to state government, federal government and private parties
for actions completed in-state in response to an in-state or out-of-state emergency?
69. Are providers liable to state government, federal government and private parties for
actions completed in-state in response to an in-state or out-of-state emergency?
70. What liability does state government bear to volunteers or out-of-state personnel for
losses sustained while assisting the state in responding to an emergency?
Local
71. Under what circumstances is a local government employee liable to local government,
state government, federal government and private parties for actions completed in-locality or
out-of-locality in response to an in-locality or out-of-locality emergency?
72. Under what circumstances is a local government volunteer liable to local government,
state government, federal government and private parties for actions completed in-locality or
out-of-locality in response to an in-locality or out-of-locality emergency?
73. Under what circumstances is a provider liable to local government, state government,
federal government and private parties for actions completed in-locality or out-of-locality in
response to an in-locality or out-of-locality emergency?
74. What liability does the local government bear with respect to volunteers, providers, state,
federal or out-of-locality personnel for losses sustained while assisting the locality in
responding to an emergency?
C. Administration
Federal

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75. Is the federal government liable to local governments, state governments and private
parties for federal action taken in response to an emergency?
State
76. Has the state resolved issues regarding the interplay of state workers compensation law
and federal law, if any, in reimbursing emergency responders?
77. Has the state addressed choice of law and venue/jurisdiction issues governing interstate
and inter-county disputes arising out of emergency response?
78. What provisions exist for the reimbursement of expenses related to evacuees entering or
leaving the state?
Local
79. In the event that resources (materials or personnel) are shared with jurisdictional
neighbors, have compensatory mechanisms been agreed in advance?

Checklist: Interjurisdictional Legal Coordination for Public Health
Emergency Preparedness
Overview: Effective interjurisdictional legal coordination is an important objective of CDC’s
public health emergency preparedness grant program, appearing in Focus Area A (preparedness,
planning, and readiness assessment) and Area B (surveillance and epidemiologic capacity) of the grant
guidance.i Interjurisdictional legal coordination also has been the focus of a workshop CDC and the
Center sponsored in December 2002 (see briefing memoranda posted at
www.publichealthlaw.net/Resources/BTlaw.htm). Interjurisdictional legal issues related to public health
emergency preparedness concern the coordination of activities and resources across local, state, and
federal boundaries.
Interjurisdictional issues arise in two principle contexts: “horizontal” relationships between
jurisdictions of similar legal standing (e.g., between adjacent counties) and “vertical” relationships
between jurisdictions of different legal standing (e.g., between local and state, local and federal, and state
and federal governments). Effective coordination is complicated by differences in the laws of U.S.
jurisdictions and by the failure of existing laws to anticipate challenges and problems posed by modern
public health emergency preparedness and response.
The Center developed the following checklist to give public health officials, their legal counsel,
and policy makers a practical tool they may use in assessing their interjurisdictional legal coordination
concerning public health emergencies. The checklist is a flexible tool users may modify and tailor to suit
the unique characteristics of their own jurisdictions and agencies. The principal criterion for including a
given issue or question in this checklist is whether it relates to a legal issue that is critical to effective
operational coordination across jurisdictional lines and is one that involves, or may involve, coordination
of the legal powers of multiple jurisdictions or possible conflict among such powers.

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Subject Matter
I.

Question

Commentary

1. Do federal, state and local
regulatory requirements
differ with respect to
property to be exchanged
during an emergency?

Federal law provides standards for many different kinds of property, especially
(through FDA) medical devices and pharmaceuticals. However jurisdictions
may differ in their unique requirements (e.g., safety equipment, etc.).
Jurisdictions’ use of pharmaceuticals from outside the U.S. should also be
considered.

2. Has the state undertaken
any obligation to share
supplies with other
jurisdictions in the event of
an emergency (e.g., EMAC)?
3. Has the state confirmed
that material it may send or
receive during an emergency
is acceptable for use in the
jurisdiction under governing
regulations?
4. Are hospitals and other
health-care facilities required
to maintain emergency plans
under licensing/credentialing/
reimbursement standards and,
if so, do they have an interjurisdictional component?

Under Emergency Management Assistance Compacts (“EMACs”) states
voluntarily accept mutual obligations to render emergency assistance,
including the lending of equipment/supplies.ii These obligations are typically
conditioned on the sending state’s ability to protect the health of its own
citizens.
State law provides standards for many different kinds of property and
jurisdictions may differ in their unique requirements (e.g., safety equipment,
etc.). Jurisdictions’ use of pharmaceuticals from outside the U.S. should also
be considered.

Prevention

II. Preparedness
A. Property
Federal

State

Some states authorize the Secretary of Health to require health care facilities to
develop emergency plans.iii Especially in border communities these plans
could have important interjurisdictional components.

Local
5. Are there licensing or
regulatory regimes peculiar
to the local jurisdiction?

This should be considered unlikely, with the possible exception of large
metropolitan areas.

6. Do federal employees face
licensing or credentialing
barriers to working in states?

States generally enjoy exclusive authority to license professional services
within their boundaries. Emergency planning should eliminate or deal with
potential restrictions on the activities of federal professionals during
emergencies.
Conceivably, especially near state boundaries, healthy people, suspected cases,
and confirmed cases may need to be moved across state lines. States may
require assistance in managing these movements and resolving disputes.

B. People
Federal

7. Is federal contingency
planning required to address
and coordinate large
migrations of refugees and/or
sick persons across state
boundaries?
State
8. Are there licensing or
regulatory regimes peculiar
to the state jurisdiction?

States generally enjoy exclusive authority to license professional services
within their boundaries. Emergency planning should eliminate or deal with
any potential restrictions on the activities of out-of-state responders during
emergencies. States should refer to their EMACs, as applicable.iv

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9. Are state planners required
to anticipate large migrations
of refugees and/or sick
persons across state
boundaries?

Healthy people, suspected cases, and confirmed cases may need to be moved
across state lines. States, where applicable, should refer to their EMACs.v

10. Are there licensing or
regulatory regimes peculiar
to the local jurisdiction?

This is unlikely, with the possible exception of significant metropolitan areas.

11. What disease surveillance
information sharing
mechanisms are in place?

Timely reporting of information derived from disease surveillance plays an
important part in detecting incipient outbreaks. Disease reporting by states is
largely voluntary and often complicated by perceived health information
privacy concerns.vi
The federal government has engaged in extensive planning activities and
exercises since September 11, 2001. Legal direction to disseminate assessment
results to state and local partners could facilitate federal/state/local
communication in the face of security and other concerns.

Local

C. Data sharing
Federal

12. Are there requirements to
share preparedness/
prevention/ readiness
assessment results with state
and local partners?
State
13. What disease surveillance
information sharing
mechanisms are in place?

14. Are there requirements to
share preparedness/
prevention/ readiness
assessment results with
partners?

Timely reporting of information derived from disease surveillance plays an
important part in detecting incipient outbreaks. Disease reporting by states is
largely voluntary and often complicated by perceived health information
privacy concerns. Routine information sharing builds trust between equivalent
public health agencies across state boundaries. Specific state legislative or
regulatory direction to share identifiable information with partners can further
encourage information sharing, though such legal specification is not required
to permit data sharing under the HIPAA Privacy Rule.vii
Legal direction to disseminate assessment results to state and local partners
could facilitate federal/state/local communication in the face of security and
other concerns. Federal grant programs have required assessment against
preparedness benchmarks.viii Legal direction to disseminate assessment results
to state and local partners as well could facilitate communication among
security and other concerns.

Local
15. What disease surveillance
information sharing
mechanisms are in place?
16. Are there requirements to
share preparedness/
prevention/ readiness
assessment results with
partners?

Routine information sharing builds trust between equivalent public health
agencies across boundaries. Specific state legislative or regulatory direction to
share identifiable information with partners can further encourage information
sharing.
Legal direction to disseminate assessment results to state and local partners
could facilitate federal/state/local communication in the face of security and
other concerns.

D.
Administration
Federal
State

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17. What mutual aid
agreements exist with
bordering states or other
jurisdictions (e.g., EMAC)?

18. Do such agreements
apply to pre-emergency
preparations?

19. Has the legally
designated state official
formulated mutual aid plans
and procedures necessary to
implement the state’s
obligations under mutual aid
agreements (e.g., EMAC), if
any?
20. Are EMACs standardized
across states?

21. Has the state developed
EMAC reimbursement and
dispute resolution
mechanisms?

Under Emergency Management Assistance Compacts (“EMACs”) states
voluntarily accept mutual obligations to render emergency assistance,
including the lending of equipment/supplies. In addition, states may have
entered into other forms of cooperative agreements. One example is the
International Emergency Management Assistance Compact (“IEMAC”)
adopted by several northeastern states and Canadian jurisdictions.ix
States should determine the degree of pre-emergency cooperation or
collaboration required by mutual aid agreements to which they are parties.
Many states are currently engaged in regional planning/preparation activities.x

Under Emergency Management Assistance Compacts (“EMACs”) states
voluntarily accept mutual obligations to render emergency assistance,
including the lending of equipment/supplies. States should determine the
degree of pre-emergency cooperation or collaboration required by mutual aid
agreements to which they are parties.

Under Emergency Management Assistance Compacts (“EMACs”) states
voluntarily accept mutual obligations to render emergency assistance,
including the lending of equipment/supplies. States should determine the
degree of pre-emergency cooperation or collaboration required by mutual aid
agreements to which they are parties.
The EMAC does not contain explicit procedures for reimbursement and
dispute resolution but calls for their development by state parties.xi

Local
22. To what mutual
assistance agreements is the
local government a party and
what obligations do they
impose?
23. Under what
circumstances can a local
government ask for or require
assistance from its state
government or neighboring
local or state governments?

A variant of the EMAC for county/local jurisdictions is available but not yet
widely used.xii Local governments may have entered into a number of formal
and informal agreements. These should be catalogued and readily available to
planners. In some cases harmonization between sets of obligations may be
necessary.
Local governments may have entered into a number of formal and informal
agreements.

24. Can the federal
government re-allocate
committed supplies between
jurisdictions once en-route
during an emergency?
25. Can the federal
government seize state, local
or private facilities?

This question raises two issues. First, in an environment of scarce resources,
are there criteria for continuously re-evaluating needs as emergencies unfold?
Second, is there a clearly understood dividing line between federal ownership,
control over and liability for federal property being sent to states and the
states’ assumption of ownership, control and liability (if any)?
Federal agencies can accept and utilize services or facilities of any
governmental entity with consent.xiii FEMA’s Director has power to condemn
or purchase privately owned materials or facilities.xiv

III. Response
A. Property
Federal

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State
26. Once a state takes
possession of federal
emergency assistance
materials, can it be required
to relinquish them to another
state?
27. Can the state seize
federal, county/municipal or
private property during an
emergency?
28. Does NIMS affect states’
authority to dispose of
property during emergencies?

This question raises two issues. First, in an environment of scarce resources,
are there criteria for continuously re-evaluating needs as emergencies unfold?
Second, is there a clearly understood dividing line between federal ownership,
control over and liability for federal property being sent to states and the
states’ assumption of ownership, control and liability?
States lack the capacity to seize federal government property.xv With respect
to county or municipal property within their own states, officials must consult
their state constitutions and legislation. States lack authority to seize property
held by other states.
The National Incident Management System (“NIMS”) “represents a core set of
doctrine, concepts, principles, terminology, and organizational processes to
enable effective, efficient, and collaborative incident management at all
levels.”xvi NIMS is a management system and is not designed to alter states’
fundamental legal rights and responsibilities.

Local
29. Under what
circumstances must local
authorities relinquish control
of materials or resources to
the state or its neighbors?
30. Does NIMS affect the
designated local lead
emergency management
official’s ability to commit
local material resources?
31. Can local officials seize
federal, state or private
property during an
emergency?

32. Can local officials close
federal, state or private
buildings during emergencies
(e.g., courthouses, state
universities, post offices)?
B.

In an environment of scarce resources, are there criteria for continuously reevaluating needs as emergencies unfold? In addition, localities may be bound
by state emergency plans or assistance agreements. Localities may also
control stockpiles in trust for the state.
NIMS is a management system and is not designed to alter fundamental legal
rights and responsibilities.

Eminent domain can be used to further the public purpose of promoting public
health, safety and morals.xvii Local officials, however, are unlikely to enjoy
authority to seize state property.xviii Localities should refer to state legislation
and local ordinances to determine the scope of their authority to seize private
property during emergencies. Some state statutes provide explicitly that
certain governmental entities do not enjoy eminent domain over property held
by other governmental entities.xix
Localities enjoy authority to enforce local building codes and safety
ordinances. Nevertheless, it has been held generally that localities can only
enforce local ordinances against state property in the absence of a contrary
intent by the state; and states cannot enforce codes and ordinances against the
federal government.xx States and localities have no legal authority to close or
condemn private buildings outside of their jurisdiction.

People
Federal
33. May federal personnel
practice their licensed or
regulated professions in
responding to an emergency
in the host jurisdiction?
34. May federal personnel in
licensed or regulated
professions practice in related
specialties in responding to
an emergency in the host
jurisdiction?

States generally enjoy exclusive authority to license professional services
within their boundaries. Emergency planning should eliminate or deal with
potential restrictions on the activities of federal professionals during
emergencies. This question should also be explored for non-federal employee
professionals volunteering their services to federal agencies.
States generally enjoy exclusive authority to license professional services
within their boundaries. Emergency planning should eliminate or deal with
potential restrictions on the activities of federal professionals during
emergencies. This question raises the broader issue of whether, in an
emergency, licensed federal employees working in a host jurisdiction can
practice specialties in which no jurisdiction has licensed them.

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35. Can the federal
government use or authorize
the use of unlicensed
personnel to perform
professionally regulated
functions in an emergency in
the host jurisdiction?

36. May the federal
government impose
quarantine orders on
residents inside a state’s
jurisdictional boundaries?

This question asks whether, in the context of an organized emergency response
(as opposed to the roadside “good Samaritan”), the federal government may
authorize unlicensed workers to perform duties traditionally performed only by
licensed professionals in the host jurisdiction. States generally enjoy exclusive
authority to license professional services within their boundaries. Emergency
planning should eliminate or deal with potential restrictions on the activities of
federal professionals during emergencies. This question should also be
explored for non-federal employee professionals volunteering their services to
federal agencies.
The federal government enjoys some authority to control the movement of
persons within states to the extent that they pose a threat to the health of the
armed forces.xxi Generally, however, federal government personnel (e.g.,
Public Health Service) are limited to cooperating with and aiding states and
local authorities in the enforcement of their quarantine and other health
regulations.xxii In extreme cases the director of CDC may take “reasonably
necessary measures” to prevent spread of disease between states if local efforts
are “insufficient”.xxiii

State
37. Who has authority over
federal, neighboring state and
local employees responding
to emergencies within the
state?

38. Who has authority to
impose personal control
measures (e.g., quarantine
and isolation) during an
emergency?
39. May out-of-state state
personnel practice their
licensed or regulated
professions in responding to
an emergency in the host
jurisdiction?
40. May state personnel
practice their licensed or
regulated professions in
responding to an emergency
in a neighboring jurisdiction?
41. May the State use out-ofstate unlicensed personnel?
42. May out-of-state
members of licensed or
regulated professions practice
in related specialties in
responding to emergencies in
the host jurisdiction?

The National Incident Management System (NIMS) provides a structure for
integrating emergency response activities and does not change legal duties or
responsibilities. NIMS suggests, for example, that in multi-jurisdictional
incidents “resources [which includes personnel] are best managed under the
agencies that normally control them.”xxiv This question should also be
addressed with respect to volunteers. States should refer to their EMACs, if
applicablexxv, which generally provide that personnel’s regular commanders
retain authority.
States enjoy primary authority to protect the public’s health and welfare under
the “police powers” constitutionally reserved to the states by operation of the
10th Amendment to the United States Constitution. States may have both statelevel legislation and locality-driven ordinances providing overlapping
authority.
States should refer to their EMACs, as applicable.xxvi

States generally enjoy exclusive authority to license professional services
within their boundaries. States should refer to their EMACs, as applicable.

States generally enjoy exclusive authority to license professional services
within their boundaries.
This question relates to licensed professionals practicing particular specialties
in which they are not licensed.

12

Local
43. Who has authority over
local government personnel if
they participate in emergency
response in a neighboring
jurisdiction?
44. Do local authorities have
authority over the actions of
non-local volunteers
operating within the locality?
45. When can volunteer
emergency personnel be
asked to perform duties
outside the locality?
46. How should the locality
deal with using unlicensed
volunteer personnel from
outside the jurisdiction?
47. Can personnel committed
under emergency plans be
sent out of the locality?

Ordinarily employees are accountable only to their employers. NIMS and
local emergency assistance compacts describe incident management structures.

48. Can a state be compelled
to accept federal emergency
assistance?

States are typically anxious to request federal emergency assistance in order to
access federal personnel and material resources. Yet, federal and state
governments may differ in their desired approaches to a public health
emergency. As a legal matter, the federal government generally does not enjoy
authority to abrogate a state’s power to protect the public’s health and
welfarexxvii though it does have power to regulate interstate commerce. The
Stafford Act, for example, requires that a state request assistance.xxviii The
federal government enjoys broad authority with respect to interstate commerce.
It could be hypothesized that, in an extreme case, the federal government
might assume control if a state was unable to fulfill its constitutional role of
protecting the public’s health despite significant federalism concerns.
The federal government enjoys some authority to control the movement of
persons within states to the extent that they pose a threat to the health of the
armed forces.xxix Generally, however, federal government personnel (e.g.,
Public Health Service) are limited to cooperating with and aiding states and
local authorities in the enforcement of their quarantine and other health
regulations.xxx In extreme cases the Director of CDC may take “reasonably
necessary measures” to prevent spread of disease between states if local efforts
are “insufficient”.xxxi As a legal matter, the federal government generally does
not enjoy authority to abrogate a state’s power to protect the public’s health
and welfarexxxii though it does have power to regulate interstate commerce. The
Stafford Act, for example, requires that a state request assistance.xxxiii It could
be hypothesized that, in an extreme case, the federal government might assume
control if a state was unable to fulfill its constitutional role of protecting the
public’s health despite significant federalism concerns.

This question should be addressed by NIMS and state and county emergency
plans.

Many localities rely on volunteer agencies (fire departments, EMS, etc.).
Local jurisdictions should determine whether these personnel may be asked to
fulfill a county’s mutual assistance obligations outside their jurisdictions.
States generally enjoy exclusive authority to license professional services
within their boundaries.

This question raises the operational issue of how mutual assistance activities
relate to local regulations regarding duty hours, locations, etc.

C.
Administration
Federal

49. Can state borders be
closed by the federal
government and under what
authority?

State

13

50. What notification
procedures exist when ID
outbreaks or public health
emergencies are suspected or
confirmed?

Timely reporting of information derived from disease surveillance plays an
important part in detecting incipient outbreaks. Disease reporting by states is
largely voluntary and often complicated by perceived health information
privacy concerns. Routine information sharing builds trust between equivalent
public health agencies across state boundaries. Specific state legislative or
regulatory direction to share identifiable information with partners can further
encourage information sharing, though such legal specification is not required
to permit data sharing under the HIPAA Privacy Rule.xxxiv

51. What kinds of health
information can be shared
with state and/or federal
counterparts?

Timely reporting of information derived from disease surveillance plays an
important part in detecting incipient outbreaks. Disease reporting by states is
largely voluntary and often complicated by perceived health information
privacy concerns. Routine information sharing builds trust between equivalent
public health agencies across state boundaries. Specific state legislative or
regulatory direction to share identifiable information with partners can further
encourage information sharing, though such legal specification is not required
to permit data sharing under the HIPAA Privacy Rule.xxxv
The National Incident Management System (“NIMS”) “represents a core set of
doctrine, concepts, principles, terminology, and organizational processes to
enable effective, efficient, and collaborative incident management at all
levels.”xxxvi NIMS is a management system and is not designed to alter states’
fundamental legal rights and responsibilities.

52. How does NIMS affect
state officials’ authority to
implement disease control
measures?

53. Can a state close its
borders to interstate traffic?
54. Can a state be compelled
to accept federal emergency
assistance?

55. Does NIMS affect state
officials’ liability?

See, e.g., questions #45, #47, and #65. States almost certainly lack authority to
close their borders to interstate traffic in the absence of federal cooperation or
assent.
States are typically anxious to request federal emergency assistance in order to
access federal personnel and material resources. Yet, federal and state
governments may differ in their desired approaches to a public health
emergency. As a legal matter, the federal government generally does not enjoy
authority to abrogate a state’s power to protect the public’s health and
welfarexxxvii though it does have power to regulate interstate commerce. The
Stafford Act, for example, requires that a state request assistance.xxxviii
NIMS does not directly affect questions of liability, which must be resolved
under applicable (usually state) law.

Local
56. Do local and state
agencies share overlapping
authorities?
57. Can local authorities
close their jurisdictions to
neighbors?

Relationships between state and local authorities vary greatly across the United
States. In some jurisdictions, a particular city health department may operate
legally independently from the state health department.xxxix In others, local
health departments may be considered quasi-state agencies.
Local officials should review their charters, state legislation and state
constitutions. They should also be aware of their role in accepting refugees or
patients in the event of a public health emergency under state and county
emergency response plans.

IV. Recovery
A. Property
Federal
58. What liability does the
federal government bear for
the malfunction or misuse of
federal materials sold or
given to the host jurisdiction?

Independent of products liability, under some circumstances an entity
providing material for the use of another can be held liable for damages
resulting from its use. Limitations on this kind of liability should be clearly
understood by federal, state and local officials.

14

59. What liability does the
federal government bear for
damage to non-federally
owned materials transported
by the federal government?

An entity receiving and transporting the goods of another should address
clearly the scope of its liability.

60. What liability does the
state government bear for the
malfunction or misuse of
state materials donated to the
host jurisdiction?
61. What liability does the
state bear for damage to nonstate owned materials
transported by the state
government at the request of
another jurisdiction?
62. How does NIMS affect
state officials’ liability?

Independent of products liability, under some circumstances an entity
providing material for the use of another can be held liable for damages
resulting from its use. Limitations on this kind of liability should be clearly
understood by federal, state and local officials.

63. What liability does the
local government bear for
damage to non-locally owned
materials transported by the
local government at the
request of another
jurisdiction?
64. What liability does the
local government bear for the
malfunction or misuse of
locally owned materials
donated to the host
jurisdiction?

An entity receiving and transporting the goods of another should address
clearly the scope of its liability.

65. Are federal employees
liable to local governments,
state governments, the
federal government and
private parties for actions
taken in response to an
emergency?
66. Are federal volunteers
working with local
governments, state
governments, the federal
government itself and private
parties liable for actions
taken in response to an
emergency?

See liability checklist, question #27. Traditionally individuals are not liable to
the United States for costs incurred due to their actions or omissions in
responding to major disasters or emergencies.xl

State

An entity receiving and transporting the goods of another should address
clearly the scope of its liability.

NIMS does not directly affect questions of liability, which must be resolved
under applicable (usually state) law.

Local

Independent of products liability, under some circumstances an entity
providing material for the use of another can be held liable for damages
resulting from its use. Limitations on this kind of liability should be clearly
understood by federal, state and local officials.

B. People
Federal

See liability checklist, questions #9 and #27. This question is distinct from the
issue of unlicensed practice.

15

State
67. Under what
circumstances are
government employees liable
to other state governments,
federal government and
private parties for actions
completed in-state in
response to an in-state or outof-state emergency?
68. Are state volunteers liable
to state government, federal
government and private
parties for actions completed
in-state in response to an instate or out-of-state
emergency?
69. Are providers liable to
state government, federal
government and private
parties for actions completed
in-state in response to an instate or out-of-state
emergency?
70. What liability does state
government bear to
volunteers or out-of-state
personnel for losses sustained
while assisting the state in
responding to an emergency?

See liability checklist, questions #9, #25, and #27. Most, if not all, states have
tort claims acts in addition to specific emergency legislation which may bear
on this question. Also, states may employ specific statutory provisions
immunizing state employees for the performance of discretionary acts and/or
providing indemnification.xli States may also have entered into interjurisdictional agreements (e.g., EMACs) which limit state employees’ liability
to other state governments.xlii This question should also be considered with
respect to activities outside the state.

71. Under what
circumstances is a local
government employee liable
to local government, state
government, federal
government and private
parties for actions completed
in-locality or out-of-locality
in response to an in-locality
or out-of-locality emergency?
72. Under what
circumstances is a local
government volunteer liable
to local government, state
government, federal
government and private
parties for actions completed
in-locality or out-of-locality
in response to an in-locality
or out-of-locality emergency?

See liability checklist, questions #20, #25, #36, and #30,42; question #67.

See liability checklist, questions #9, #25, and #27. In addition to Good
Samaritan statutes, some states have enacted specific emergency response
legislation.xliii Further, actions taken in-state may have out-of-state effects. This
question should also be considered concerning activities outside the state.

See, e.g., questions #67 and #68. A potentially important issue is whether
providers, acting under direction of public health authorities or in connection
with emergency response plans, should be characterized as agents of the
state.xliv This question should also be considered with respect to activities
outside the state.

This question goes both to indemnification of and compensation to nongovernmental personnel acting at the request of the state. Potentially it
encompasses issues ranging from legal defense costs to workers
compensation/disability/life insurance. States should refer to their EMACs, as
applicable.xlv

Local

See liability checklist, questions #20 and #31; question #68 and #69.

16

73. Under what
circumstances is a provider
liable to local government,
state government, federal
government and private
parties for actions completed
in-locality or out-of-locality
in response to an in-locality
or out-of-locality emergency?
74. What liability does the
local government bear with
respect to volunteers,
providers, state, federal or
out-of-locality personnel for
losses sustained while
assisting the locality in
responding to an emergency?

See liability checklist, questions #21 and #29,43; questions #68 and #69.

75. Is the federal government
liable to local governments,
state governments and private
parties for federal action
taken in response to an
emergency?

See liability checklist, questions #13 and #14. Answers to this question should
consider the Federal Tort Claims Act. Generally, the federal government is not
liable for claims based on discretionary functions or duties of agencies or
employees.xlvi The federal government also refuses liability for claims based on
damages caused by the imposition or establishment of a quarantine by the
United States, though presumably this does not include alleged violations of
due process.xlvii

76. Has the state resolved
issues regarding the interplay
of state workers
compensation law and federal
law, if any, in reimbursing
emergency responders?
77. Has the state addressed
choice of law and
venue/jurisdiction issues
governing interstate and
inter-county disputes arising
out of emergency response?
78. What provisions exist for
the reimbursement of
expenses related to evacuees
entering or leaving the state?

States should refer to their EMACs, as applicable.xlviii This question focuses
specifically on workers compensation. A good example of potential
complications in the interplay of federal public health emergency planning
regulations and state workers compensation systems arose during the smallpox
vaccination initiative of 2003.

79. In the event that
resources (materials or
personnel) are shared with
jurisdictional neighbors, have
compensatory mechanisms
been agreed in advance?

The EMAC does not contain explicit procedures for reimbursement and
dispute resolution but calls for their development by state parties.l

See question #70.

C.
Administration
Federal

State

The EMAC does not contain explicit procedures for reimbursement and
dispute resolution but calls for their development by state parties.xlix

This issue is considered in the state’s EMACs.

Local

17

References:
i
ii

Available at http://www.bt.cdc.gov/planning/continuationguidance/index.asp.
“Emergency Management Assistance Compact” (EMAC), http://www.emacweb.org.

iii

E.g., Md. Code Ann., Health–General §18-903 (2004).

iv

EMAC Art.V.
v
EMAC Art. X.
vi
See, e.g., Jason W. Sapsin et al., SARS and International Legal Preparedness, Temple L. Rev. (forthcoming
2004).
vii
E.g., James G. Hodge, Jr. et al., The HIPAA Privacy Rule and Bioterrorism Planning, Prevention, and Response,
2 Biosecurity and Bioterrorism 73-80 (2004).
viii
See CDC, Continuation Guidance for Cooperative Agreement on Public Health Preparedness and Response for
Bioterrorism – Budget Year Five, Attachment A, Focus Area A: Preparedness Planning and Readiness Assessment
(2004).
ix
E.g., Me. Rev. Stat. Ann. tit. 37-B, §935 et seq. (West 2003).
x
E.g., a group of states composed of Nebraska, Iowa, Kansas, Missouri, North Dakota, South Dakota, Wyoming,
Colorado, Utah and Montana.
xi
EMAC Art. III (B).
xii
“Model Intrastate Mutual Aid Legislation”, the National Emergency Management Association (2004).
xiii
42 U.S.C.A. §5149(a) (West 2004).
xiv
42 U.S.C.A. §5196(i) (West 2004).
xv
E.g., Ft. Leavenworth R. Co. v. Lowe, 114 U.S. 525, 29 L Ed. 264, 5 S Ct 995 (overruled on other grounds)
(involving federal real property).
xvi
U.S. Dep’t of Homeland Security, National Incident Management System (March 1, 2004) at ix.
xvii
26 Am. Jur. 2d Eminent Domain §70.
xviii
E.g., 26 Am. Jur. 2d Eminent Domain §188.
xix
26 Am. Jur. 2d Eminent Domain §192.
xx
See 13 Am. Jur. 2d Buildings §6.
xxi
42 U.S.C.A. §§ 264, 266 (West 2004).
xxii
42 U.S.C.A. §243 (West 2004).
xxiii
42 C.F.R. §70.2 (2002)
xxiv
The National Incident Management System, App.A, page 71 (2004).
xxv
EMAC Art. IV.
xxvi
EMAC Art. V.
xxvii
U.S. Const. 10th Amend.
xxviii
42 U.S.C.A. 5121 et seq. (West 2002)
xxix
42 U.S.C.A. §§ 264, 266 (West 2004).
xxx
42 U.S.C.A. §243 (West 2004).
xxxi
42 C.F.R. §70.2 (2002)
xxxii
U.S. Const. 10th Amend.
xxxiii
42 U.S.C.A. 5121 et seq. (West 2002)
xxxiv
E.g., James G. Hodge, Jr. et al., The HIPAA Privacy Rule and Bioterrorism Planning, Prevention, and
Response, 2 Biosecurity and Bioterrorism 73-80 (2004).
xxxv
E.g., James G. Hodge, Jr. et al., The HIPAA Privacy Rule and Bioterrorism Planning, Prevention, and Response,
2 Biosecurity and Bioterrorism 73-80 (2004).
xxxvi
U.S. Dep’t of Homeland Security, National Incident Management System (March 1, 2004) at ix.
xxxvii
U.S. Const. 10th Amend.
xxxviii
42 U.S.C.A. 5121 et seq. (West 2002)
xxxix
E.g., Baltimore City in the State of Maryland.
xl
42 U.S.C.A. §5160(b) (West 2004).
xli

Mo. Rev. Stat. §105.711 (2000).

xlii

EMAC Art. VI.

18

xliii

E.g., Md. Code Ann., Public Safety §14-3A-02 et seq. (2004).

xliv

E.g., Md. Code Ann., Health - General §18-907(c) (2004)
xlv
EMAC Art. VIII.
xlvi
42 U.S.C.A. §5148 (West 2002).
xlvii
28 U.S.C. §2680(f) (West 2002).
xlviii
EMAC Art. VIII.
xlix
EMAC Art. III (B).
l
EMAC Art. III (B).

19