Table of Contents

  1. ROLES AND RESPONSIBILITIES

    • 2.1 Summary

      Protecting the health and safety of the public in the District of Columbia (the District) requires action by all branches of government.  Many government agencies have specific responsibilities in relation to public health emergencies. It is important that these agencies coordinate their efforts when preparing for, responding to, and recovering from disasters and emergencies.

      2.2 The Mayor of the District of Columbia

      Under the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 803; D.C. Official Code § 1-201.01 et seq. (2012 Repl.)), the Mayor of the District of Columbia (the Mayor) has executive power over the District of Columbia (the District) and is the chief executive officer of the District government. The Mayor is responsible for the proper execution of all laws relating to the District. D.C. Official Code § 1-204.22.

      The Mayor has broad powers in public health emergencies, including the ability to detain individuals having or suspected of having a communicable disease, as well as the ability to declare public emergencies and public health emergencies. Many of these authorities have been delegated to the District of Columbia Department of Health (DC Health).

      Executive Office of the Mayor, http://mayor.dc.gov.

      2.3 Council of the District of Columbia

      The Council of the District of Columbia (D.C. Council) has legislative power in the District. Subject to certain limitations, the D.C. Council has authority to create, abolish, or organize any office, agency, department, or instrumentality of the District government and to define the powers, duties, and responsibilities of any such office, agency, department, or instrumentality. D.C. Official Code § 1-204.04. The D.C. Council’s central role as a legislative body is to make laws. However, its responsibilities also include oversight of multiple agencies, commissions, boards, and other instruments of District government. The D.C. Council is composed of 13 members and led by the D.C. Council Chairman.

      The D.C. Council has the power to extend Mayoral emergency declarations by adopting emergency acts.

      Council of the District of Columbia, http://dccouncil.us/pages/council-101.

      2.4 District of Columbia Department of Health

      DC Health promotes and protects the health, safety, and quality of life of residents, visitors, and those conducting business in the District.  In doing so, DC Health has numerous responsibilities related to public health emergencies, including:

      • Identifying health risks;

      • Preventing and controlling the spread of disease;

      • Preventing injuries and exposure to environmental hazards; and

      • Educating and communicating with the public.

      See Appendix 4.0 of the Manual for a DC Health organizational chart.

      The Director of DC Health (DC Health Director) has broad authority to detain individuals for the purposes of quarantine, isolation, treatment, and examination if they have, or are suspected of having, a communicable disease. In addition, the DC Health Director is the conduit for all reporting related to communicable disease and has power to inspect public or private property during communicable disease investigations.

      District of Columbia Department of Health, http://dchealth.dc.gov.

      2.4.1    Health Emergency Preparedness and Response Administration

      The Health Emergency Preparedness and Response Administration (HEPRA), part of DC Health, is responsible for ensuring the delivery of the highest quality emergency medical and trauma care services through the provision of regulatory oversight of all emergency medical services provided in the District. In addition, HEPRA is responsible for planning, implementing, and directing public health emergency preparedness and response for the District.

      HEPRA is the lead for Emergency Support Function #8 – Public Health and Medical Services (ESF #8) under the District Response Plan (DRP). Emergency Support Functions (ESFs) are mechanisms for grouping governmental and certain private sector capabilities into an organizational structure to coordinate federal support to states after an incident. There are 15 ESFs under the National Response FrameworkESF #8 provides the mechanism for coordinated Federal assistance to supplement State, Tribal, and local resources in response to the following:

      • Public health and medical care needs;

      • Veterinary and/or animal health issues in coordination with the United States Department of Agriculture (USDA);

      • Potential or actual incidents of national significance; and

      • A developing potential health and medical situation.

      HEPRA works to ensure that DC Health and its partners are prepared to respond in accordance with all functions under ESF #8, including:

      • Assessment of public health/medical needs;

      • Public health surveillance;

      • Medical care personnel;

      • Medical equipment and supplies;

      • Patient movement;

      • Hospital care;

      • Outpatient services;

      • Victim decontamination;

      • Safety and security of human drugs, biologics, medical devices, veterinary drugs, etc.;

      • Blood products and services;

      • Food safety and security;

      • Agriculture feed safety and security;

      • Worker health and safety;

      • All hazard consultation and technical assistance and support;

      • Mental health and substance abuse care;

      • Public health and medical information;

      • Vector control;

      • Potable water/wastewater and solid waste disposal, and other environmental health issues;

      • Victim identification/mortuary services; and

      • Veterinary services.

      District of Columbia Department of Health, Health Emergency Preparedness and Response Administration, DC Health.

      2.4.2    District of Columbia Emergency Support Function #8 Department of Health, Health and Medical Coalition

      The District of Columbia ESF #8 Department of Health, Health and Medical Coalition (DC Health-HMC) is the strategic planning committee and advisor to the DC Health Director. Its purpose is to:

      • Foster partnerships with government agencies, healthcare providers, and community partners working together to promote, consolidate, and coordinate a unified response to emergencies affecting the District and to promote the emergency preparedness and response capabilities of District health and medical entities by strengthening medical surge capacity and capabilities;
      • Build relationships and partnerships for community resiliency;
      • Facilitate communication, information, and resource sharing;
      • Maximize movement and utilization of limited existing resources; and
      • Coordinate training, drills, and exercises between local, state, and federal partners.

      2.5 District of Columbia Homeland Security and Emergency Management Agency

      The District of Columbia Homeland Security and Emergency Management Agency (HSEMA) is responsible for leading the planning and coordination of homeland security and emergency management efforts to ensure that the District is prepared to prevent, protect against, respond to, mitigate, and recover from all threats and hazards. HSEMA is responsible for coordinating the delivery of federal assistance to District agencies.

      District of Columbia Homeland Security and Emergency Management Agency, http://hsema.dc.gov.

      2.6 District of Columbia Office of the Attorney General

      The District of Columbia Office of the Attorney General (OAG) advises and provides legal representation to District agencies, officers, and employees. OAG attorneys are responsible for ensuring that government actions are legally permissible, and for bringing certain actions related to protection of the public health in the District of Columbia Superior Court (Superior Court) (e.g., detaining individuals). 

      District of Columbia Office of the Attorney General, https://oag.dc.gov/.

      2.7 District of Columbia Office of the Chief Medical Examiner

      The District of Columbia Office of the Chief Medical Examiner (OCME) is responsible for investigating all deaths in the District that occur as the result of violence or injury, as well as those that occur unexpectedly, without medical attention, in custody or pose a threat to public health.

      District of Columbia Office of the Chief Medical Examiner, https://ocme.dc.gov/page/about-ocme.

      2.8 District of Columbia Courts

      The District courts are comprised of the Superior Court and the District of Columbia Court of Appeals (Court of Appeals). The Superior Court has jurisdiction of any civil action or other matter (at law or in equity) brought in the District and of any criminal case under any law applicable exclusively to the District. Under District law, the Superior Court has jurisdiction over cases involving the detention of individuals and groups. See, e.g., D.C. Official Code § 7-134. The Court of Appeals has jurisdiction of appeals from the Superior Court and, to the extent provided by law, may review orders and decisions of the Mayor, the Council, or any agency of the District. D.C. Official Code § 1-204.31.  

      Counsel may be appointed by the court for individuals in all cases where an individual faces a loss of liberty and the United States Constitution or any other law requires such appointment of counsel. D.C. Official Code § 11-2602.

      District of Columbia Courts, http://www.dccourts.gov/internet/welcome.jsf

  2. JURISDICTION

    • 3.1 Summary

      The United States Congress may act only pursuant to those powers enumerated in the United States Constitution. There is no express constitutional authority for federal or state governments to engage in public health issues. Implicit authority for federal intervention is found under the Commerce Clause, General Welfare Clause, and Necessary and Proper Clause of the United States Constitution. The District of Columbia’s (the District) authority to protect public health comes from the doctrine of police power derived from the Tenth Amendment to the United States Constitution and, historically, under judicial interpretation of case law.  While the United States Constitution gives the United States Congress exclusive jurisdiction over the District, the District of Columbia Home Rule Act delegates certain authority to District government, including issues with public health significance.

      3.2 Source of Federal Public Health Authority

      3.2.1    Explicit Constitutional Authority

      There is nothing explicit in the United States Constitution that gives the federal government authority to intercede in public health matters.

      3.2.2    Implicit Constitutional Authority

      1. The Commerce Clause – The Commerce Clause gives the United States Congress the power to regulate commerce with foreign nations, between the states, and with Tribal nations. U.S. Const. art. I, § 8, cl. 3. As the United States Constitution does not define what is meant by “commerce,” the United States Supreme Court has considerable latitude to decide whether legislation falls within the federal government’s authority to regulate under this clause.

        The United State Congress has relied upon the Commerce Clause to enact a wide range of laws with public health implications, including food safety initiatives by the Food and Drug Administration (FDA), United States Department of Agriculture (USDA), and the Environmental Protection Agency (EPA), federal quarantine laws administered by the Centers for Disease Control and Prevention (CDC), as well as occupational safety provisions promulgated by the United States Department of Labor (DOL). 
         
      2. The General Welfare Clause – The General Welfare Clause allows the United States Congress to levy and collect taxes for the general welfare of the United States. U.S. Const. art. I, § 8, cl. 1. The United States Congress uses this power to tax behaviors that have potentially harmful effects, such as cigarette smoking, and rewards behaviors that it seeks to promote, like giving individuals tax credits for purchasing health insurance.
         
      3. The Necessary and Proper Clause – In general, the Necessary and Proper Clause enables the United States Congress to select means reasonably adapted to effectuate its powers. U.S. Const. art. I, § 8, cl. 18. In United States v. Comstock, 560 U.S. 126 (2010), the United States Supreme Court examined the interplay between the Commerce Clause, the Necessary and Proper Clause, and the ability of the federal government to isolate infectious individuals. In part, the issue before the court was whether the federal government could civilly commit certain sex offenders after they had completed their federal prison sentences. The court recognized that, if a federal prisoner is infected with a communicable disease that could be a threat to others, it may be “necessary and proper” for the federal government to take action even if there is not an interstate threat, such as an epidemic that would cross state borders. Comstock, 560 U.S. at 142 (dictum).

      3.3 Source of State Public Health Authority

      3.3.1    Explicit Constitutional Authority  

      There is nothing explicit in the United States Constitution that gives the District of Columbia or any state the authority to intercede in public health matters.

      3.3.2    Implicit Constitutional Authority  

      The Tenth Amendment to the United States Constitution reserves to the states those powers not specifically delegated to the federal government. U.S. Const. amend. X.

      3.3.3    The Doctrine of Police Power  

      The doctrine of “police power” emanates from English common law principles that allow state governments to limit certain individual and private rights when such limitation is necessary for the preservation of the common good. Case law has extended this principle to public health, and the United States Supreme Court has acknowledged that the government has authority to protect the public’s safety, health, and morals by restraining the use of liberty and property. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996).

      In Huffman v. D.C., the District of Columbia Court of Appeals (Court of Appeals) upheld, as a reasonable exercise of police power, a statute that authorized the District to issue regulations to prevent, investigate, control, and report communicable disease and permitted the detainment of infected individuals. Huffman v. D.C., 39 A.2d 558, 561 (D.C. 1944).

      The boundaries of police power are not limitless. When exercising its police powers, the state must be acting in the interest of all of its citizenry (as opposed to a particular class of people), the methods exercised must be reasonably designed to prevent or ameliorate a threat, the means used must be reasonably necessary to accomplish its goal, and the methods cannot be unduly oppressive. See Lawton v. Steele, 152 U.S. 133, 137 (1894); see also Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905).

      3.3.4    States Have Historically Assumed a Primary Role in Public Health Issues

      In Jacobson v. Massachusetts, the plaintiff objected to a smallpox vaccine that the Commonwealth of Massachusetts required for adults. The United States Supreme Court upheld the constitutionally of the mandatory vaccine, and emphasized that “[t]he safety and the health of the people . . . [are] for [the] Commonwealth to guard and protect. They are matters that do not ordinarily concern the National Government.” Jacobson, 197 U.S. at 38.

      3.4 The District of Columbia Home Rule

      The Constitution mandates that the United States Congress has exclusive jurisdiction over the District. U.S. Const. art. I, § 8, cl. 17. However, under the District of Columbia Home Rule Act (D.C. Official Code § 1-201.01 et seq.), the United States Congress has delegated some of its authority to the local government. Some of the areas in which the District has authority to intercede in matters with public health implications include the following:

      • Communicable disease reporting and investigation;
      • Quarantine of individuals or groups of individuals who may be affected with communicable disease;
      • Isolation of individuals or groups of individuals who are known to be affected with communicable disease;
      • Compulsory medical examination of individuals or groups of individuals;
      • Compulsory medical treatment of individuals or groups of individuals;
      • Declaring emergencies;
      • Inspecting, seizing, and destroying property; and
      • Domestic animals that cause disease. 

      See, e.g., D.C. Official Code §§ 7-131 to -144,  7-2301 to -2308.

      All legislation proposed by the District becomes law unless it is vetoed by the United States Congress. See D.C. Official Code § 1-206.02. Additionally, the United States Congress retains authority over the District’s Budget. D.C. Official Code § 1-206.03.

      Generally, disasters and emergencies with public health implications are first addressed by local health departments. Exceptions to this premise are made when disasters occur on federal property (such as the Alfred P. Murrah Federal Building during the Oklahoma City bombing or military bases), or when the emergency is precipitated by acts of war or terrorism. In those matters, the federal government has primary jurisdiction. In the event of a public health crisis like Hurricane Katrina or Superstorm Sandy, federal, state, and local agencies would likely be required to work collaboratively.

      3.5 Civil Rule 57

      Under the District of Columbia Superior Court’s (Superior Court) rules of civil procedure, a party may seek a declaratory judgment to determine present and/or future rights. Super. Ct. Civ. R. 57. Declaratory relief is appropriate if a party needs judicial guidance prior to taking future action rather than adjudicating a party’s past conduct. Granting declaratory relief is within the court’s discretion and is not mandatory. Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995).

      Any party may request a trial by jury on the motion for declaratory judgment. Super. Ct. Civ. R. 38, 39, 57. The party seeking the jury trial must serve the other parties with a written copy of the jury request. The jury request may be made any time after the commencement of the action but not later than 10 days after service of the last pleading. Super. Ct. Civ. R. 38(b). The court may also order a “speedy hearing” on a party’s motion for declaratory judgment. Super. Ct. Civ. R. 57.

      In the context of a public health emergency, it is foreseeable that a party could seek declaratory relief to determine whether certain information relating to the outbreak or emergency should be disclosed or to determine the appropriateness of a detention facility proposed by the Department of Health (DC Health) Director. Moreover, a party might seek a declaratory judgment to revoke a declaration of emergency or public health emergency issued by the Mayor or emergency regulations adopted by the Council of the District of Columbia (D.C. Council).

  3. DECLARATION OF EMERGENCIES

    • 4.1 Summary

      The Public Emergencies Act of 1980, D.C. Official Code §§ 7-2301 to -2308, establishes a program of public emergency preparedness and provides the authority for emergency response. In the District of Columbia (the District), the Mayor of the District of Columbia (the District) has many of the powers reserved for Governors of states. Thus, the Mayor is authorized to declare an emergency or a public health emergency in certain situations. Such declarations, upon publication, trigger powers that allow the District to address the emergency situation. They are also necessary prior to requesting federal aid.

      District law authorizes the Mayor to issue two types of emergency declarations: public emergency declarations and public health emergency declarations. A public emergency involves situations arising from disasters, catastrophes, or other emergency circumstances, including floods, earthquakes, fires, and serious civil disorders, that threaten the health, safety, or welfare of individuals in the District. A public health emergency is an emergency that involves a large number of deaths and/or serious human health disabilities in the District, widespread exposure to an infectious or toxic agent, use, dissemination, or detonation of a weapon of mass destruction, or another type of emergency event that requires the use of volunteer health practitioners.  A  public health emergency may not be declared unless a public emergency is also declared. In addition, the Mayor is authorized to declare a state of emergency for up to 30 days under the Natural Disaster Consumer Protection Act, D.C. Official Code § 28-4102(b)(1).

      Beyond emergency declarations, the Mayor has established an agency, the District of Columbia Homeland Security and Emergency Management Agency (HSEMA), to ensure that the District is prepared to protect against, plan for, respond to, and recover from, natural and man-made hazards. In addition, the Mayor’s Emergency Preparedness Council (EPC) and the National Capital Region Emergency Preparedness Council (NCREPC) provide assistance and policy recommendations regarding emergency preparedness issues.

      The District Response Plan (DRP), created under the Mayor’s authority to establish a public emergency preparedness program, unifies and coordinates the efforts of District departments and agencies, as well as non-governmental and voluntary organizations and regional and federal partners, when responding to all hazards. The District of Columbia’s Emergency Operations Center (EOC) is the central location where coordination efforts occur to ensure an effective response. 

      The Mayor is also authorized to enter into mutual aid agreements in response to emergencies and disasters. The District is a member of the Emergency Management Assistance Compact (EMAC), which provides for mutual assistance between states in certain situations and when certain requirements have been met.

      4.2 Mayoral Authority to Declare Emergencies

      The Mayor of the District of Columbia (the Mayor) has the authority to declare a public emergency under D.C. Official Code § 7-2304 and a public health emergency under D.C. Official Code § 7-2304.01. The Mayor is also authorized to declare a state of emergency in order to protect consumers from price gouging after natural disasters under D.C. Official Code § 28-4102(b). See section 4.3 of the Manual.

      4.2.1    Public Emergency

      1. Emergency Executive Order Declaring a Public Emergency – In certain situations, the Mayor may issue an emergency executive order declaring the existence of a public emergency. D.C. Official Code § 7-2304(a).

      See Appendix 2.0 for an example of a Mayor’s Declaration of a Public Emergency.

      1. Public Emergency Defined – Public emergency means any disaster, catastrophe, or emergency situation where the health, safety, or welfare of persons in the District is threatened due to actual or imminent consequences within the District of:
        • Enemy attack, sabotage, or other hostile action;
        • Severe and unanticipated resource shortage;
        • Fire;
        • Flood, earthquake, or other serious act of nature;
        • Serious civil disorder;
        • Any serious industrial, nuclear, or transportation accident;
        • Explosion, conflagration, or power failure;
        • Injurious environmental contamination that threatens or causes damage to life, health, or property; or
        • Outbreak of a communicable disease that threatens or causes damage to life, health or property.

      D.C. Official Code § 7-2301(3).

      1. Standard – The Mayor may declare a public emergency if the Mayor has the reasonable apprehension of the existence of a public emergency and determines that the issuance of an order is necessary for the immediate preservation of the public peace, health, safety, or welfare. D.C. Official Code § 7-2304(a).
         
      2. Content of Order – The order must state:
        • The existence, nature, extent, and severity of the public emergency;
        • The measures necessary to relieve the public emergency;
        • The specific requirements of the order and the persons upon whom the order is binding; and
        • The duration of the order.

      D.C. Official Code § 7-2304(a).

      1. Powers – The emergency executive order declaring a public emergency allows the Mayor to do the following:
        • Expend funds to carry out public emergency service missions and responsibilities;
        • Implement response plans without regard to normal operating procedures relating to the performance of public works, entering into contracts, incurring obligations, employment of temporary workers, rental of equipment, purchase of supplies and materials, and expenditure of public funds;
        • Evacuate people to emergency shelters designated by the Mayor;
        • Disconnect public utilities such as gas and electric;
        • Destroy or remove property that is contaminated by any matter or substance that makes it deleterious to life or health, and, as such, an immediate or imminent danger to persons or property, and prohibit persons from contacting or approaching such property;
        • Issue orders or regulations to control, restrict, allocate, or regulate the use, sale, production, and distribution of food, fuel, clothing, and other commodities, materials, goods, services, and resources as required by the District Response Plan (DRP) or by any federal emergency plan;
        • Direct persons to reduce or alter business hours;
        • Institute a curfew to keep people off public streets;
        • Establish public emergency services units as the Mayor deems appropriate;
        • Expand existing departmental and agency units within District government concerned with public emergency services;
        • Exercise operational direction over all District government departments and agencies for the duration of the emergency executive order;
        • Procure supplies and equipment, institute training programs and public information programs, and take all other preparatory steps, including the partial or full mobilization of public emergency services units in advance of actual disaster, to ensure adequately trained and equipped personnel are available during a public emergency;
        • Take steps to request federal disaster assistance, including requesting pre-disaster assistance and certifying the need for federal disaster assistance;
        • Commit District funds to alleviate damage, loss, hardship, and suffering as a result of the disaster;
        • Prevent or reduce harmful consequences of disaster; and
        • Detain persons who are determined, with probable cause, to be affected with a communicable disease likely to cause death or seriously impair the health of others.

      D.C. Official Code § 7-2304(b).

      1. Duration – An emergency executive order declaring a public emergency issued by the Mayor under D.C. Official Code § 7-2304(a) is effective for no more than 15 calendar days from the day it is signed. However, if the Mayor determines that the public emergency no longer exists, the Mayor may rescind the order in whole or in part at an earlier date. D.C. Official Code § 7-2306(a).

      See Appendix 2.0 for an example of a Public Emergency Declaration Rescission. 
       

      1. Extension – An emergency executive order declaring a public emergency may be extended for an additional 15-day period if the Mayor submits proposed emergency legislation to the Council of the District of Columbia (D.C. Council) and the D.C. Council enacts such legislation. Should extenuating circumstances, such as death, destruction, or other perilous conditions prohibit the convening of at least two-thirds of the members of the D.C. Council for consideration of emergency legislation, the Mayor may decide to extend the emergency executive order by up to 15 days, but only after making a reasonable attempt to consult with the remaining members of the D.C. Council. D.C. Official Code § 7-2306(b)-(c).
         
      2. Publication of Order – The emergency executive order declaring a public emergency must be published in the District of Columbia Register and in two daily local newspapers, as well as posted in public places in the District as determined by the Mayor by regulation, as soon as practicable given the condition of the emergency. D.C. Official Code § 7-2306(d).
         
      3. Violation of Emergency Order – An emergency executive order issued by the Mayor may provide for a fine of not more than $1,000 for each violation. D.C. Official Code § 7-2307.

      See Appendix 3.0 for a declaration of Public emergency flowchart. 

      4.2.2    Public Health Emergency

      1. Emergency Executive Order Declaring a Public Health Emergency – When the Mayor issues an emergency executive order declaring a public emergency, the Mayor may also issue an additional emergency executive order declaring a public health emergency. D.C. Official Code § 7-2304.01(a).

        See Appendix 2.0 for an example of a Mayor’s Declaration of a Public Health Emergency.

      1. Standard – The Mayor may declare a public health emergency if the Mayor has reasonable cause to believe there is an imminent hazard or actual occurrence of any of the following:
        • A large number of deaths in the District;
        • A large number of serious or long-term human health disabilities in the District;
        • Widespread exposure to an infectious or toxic agent that poses a significant risk of substantial future harm to a large number of people in the District;
        • Use, dissemination, or detonation of a weapon of mass destruction, as defined by D.C. Official Code § 22-3152(12); or
        • Other emergency events that create an acute and immediate need for volunteer health practitioners.

      D.C. Official Code § 7-2304.01(a).

      1. Content of Order – The order must specify:
        • The existence, nature, extent, and severity of the public health emergency;
        • The geographic areas subject to the declaration;
        • The conditions that have brought about the public health emergency, if known;
        • The measures necessary to relieve the public health emergency;
        • The specific requirements of the order and the persons upon whom the order is binding; and
        • The duration of the order.

      D.C. Official Code § 7-2304.01(c).

      1. Powers – The emergency executive order declaring a public health emergency may include the following terms:
        • Require that health care providers licensed in the District reasonably assist and not unreasonably detract from the ability of the District government to successfully respond to and control the public health emergency in accordance with the provisions of the DRP and D.C. Official Code §§ 7-131 to -144;
        • Appoint licensed health care providers, either from the District or from other jurisdictions, as temporary agents of the District; provided, that such appointments are in effect solely for the duration of the public health emergency, without compensation and for the purpose of assisting the District in implementing the provisions of the District response plan and D.C. Official Code §§ 7-131 to -144;
        • Exempt licensed health care providers, either from the District or other jurisdictions, from civil liability for damages for any actions taken within the scope of the provider’s employment or voluntary service to implement the provisions of the DRP and D.C. Official Code 7-131 to -144, except in instances of gross negligence, solely for the duration of the public health emergency; and
        • Waive any licensing requirements, permits, or fees otherwise required by District law to allow health care providers from other jurisdictions to be appointed as temporary agents to respond to the public health emergency so long as the appointed temporary agents are licensed in their home jurisdictions in their fields of expertise.

      D.C. Official Code § 7-2304.01(d).

      1. Duration – An emergency executive order declaring a public health emergency issued by the Mayor D.C. Official Code § 7-2304.01(a) is effective for no more than 15 calendar days from the day it is signed. However, if the Mayor determines that the public emergency no longer exists, the Mayor may rescind the order in whole or in part at an earlier date. D.C. Official Code § 7-2306(a).

      See Appendix 2.0 for an example of a Public Health Emergency Declaration Rescission. 

      1. Extension – An emergency executive order declaring a public health emergency may be extended for an additional 15-day period if the Mayor submits proposed emergency legislation to the D.C. Council and the D.C. Council adopts such legislation. Should extenuating circumstances, such as death, destruction, or other perilous conditions prohibit the convening of at least two-thirds of the members of the D.C. Council for consideration of emergency legislation, the Mayor may decide to extend the emergency executive order by up to 15 days, but only after making a reasonable attempt to consult with the remaining members of the D.C. Council. D.C. Official Code § 7-2306(b)-(c)
         
      2. Publication of Order – The emergency executive order declaring a public health emergency must be published in the District of Columbia Register and in two daily local newspapers, as well as posted in public places in the District as determined by the Mayor by regulation, as soon as practicable given the condition of the emergency. D.C. Official Code § 7-2306(d).

      See Appendix 3.0 for a declaration of public health emergency flowchart.

      4.3 Natural Disaster Consumer Protection Act

      4.3.1 State of Emergency

      The Natural Disaster Consumer Protection Act provides additional emergency declaration authority to the Mayor in order to protect consumers from price gouging after natural disasters. Within 48 hours of a natural disaster, the Mayor may declare a state of emergency for not more than 30 days. This declaration must be published in the District of Columbia Register and in two daily newspapers of general circulation as soon as practicable after the declaration. D.C. Official Code § 28-4102(b).

      D.C. Official Code §§ 7-2304 and 7-2304.01 supersede D.C. Official Code § 28-4102(b) in the event there are any inconsistencies between the laws.

      4.3.2 Natural Disaster Defined

      Natural disaster means the actual or imminent consequence of any disaster, catastrophe, or emergency, including fire (but not fire caused by human error or arson), flood, earthquake, storm, or other serious act of nature, that threatens the health, safety, and welfare of persons or causes damage to property in the District. D.C. Official Code § 28-4101(1).

      4.3.3 Anti-Price Gouging

      During a declared emergency, it is unlawful for any person to charge more than the normal average retail price for any merchandise or services sold during the declared emergency. D.C. Official Code § 28-4102(a).

      4.3.4 Penalties

      Violators of the Natural Disaster Consumer Protection Act may be fined up to $1,000 and may have their license, permit, or certificate of occupancy revoked, suspended, or limited. D.C. Official Code § 28-4103.

      4.4 Volunteers

      4.4.1 Medical Reserve Corps

      The Medical Reserve Corps (MRC) is a national network of volunteers, organized locally to improve the health and safety of the community. MRC units engage volunteers to strengthen public health, improve emergency response capabilities, and build community resiliency.

      The District of Columbia Department of Health (DC Health) has established the District of Columbia Medical Reserve Corps (D.C. MRC), a cadre of trained and qualified volunteers to supplement public health and medical resources during emergencies and other times of community need, and to enhance the District’s capability. D.C. MRC volunteers include medical and public health professionals such as physicians, nurses, pharmacists, dentists, veterinarians, and epidemiologists.  Non-medical volunteers include interpreters, chaplains, office workers, legal advisors, and others to fill key support positions.

      The D.C. MRC is primarily designed to assist and supplement the existing emergency medical response and public health systems in emergencies and does not replace existing emergency medical response systems or their resources.  Volunteers may be requested to support large-scale, complex emergencies involving multiple jurisdictions and interagency operations, or smaller incidents involving a single jurisdiction or agency.  D.C. MRC volunteers are required to register in DC Health database, http://www.dcresponds.org

      The Emergency Law Inventory (ELI), a tool developed by the University of Pittsburgh Graduate School of Public Health and practice partners, provides summaries of laws impacting volunteers who participate in preparing for and responding to disasters. https://www.legalinventory.pitt.edu/about.  

      4.5 Emergency Management

      4.5.1 District of Columbia Homeland Security and Emergency Management Agency

      The Mayor has established the District of Columbia Homeland Security and Emergency Management Agency (HSEMA) to support and coordinate homeland security and emergency management efforts, ensuring that the District's all-hazards emergency operations are prepared to protect against, plan for, respond to, and recover from natural and man-made hazards. D.C. Official Code §7-2202(a).

      A Special Event is a significant domestic or internal event, occurrence, contest, activity, or meeting that, by virtue of its profile and/or status, represents an attractive target for a terrorist attack. See 32 C.F.R. § 183.3.  A national security special event (NSSE) is an event of national significance that, by virtue of its political, economic, social, or religious significance, may be the target of terrorism or other criminal activity. See Id. Examples of Special Events and NSSEs include presidential inaugurations, major international summits held in the United States (typically in Washington, D.C.), major sporting events, and presidential nominating conventions. More information about Special Events and NSSEs in the District can be found at: https://hsema.dc.gov/service/special-events.

      4.5.2 Mayor’s Emergency Preparedness Council

      The Mayor is authorized to establish the Mayor’s Emergency Preparedness Council (EPC) to continually re-examine the overall state of emergency and disaster readiness of the District, to provide a consistent network of District agency expertise to make the District a national leader in comprehensive emergency management and homeland security, and to make recommendations on improving District planning for, response to, and recovery from emergency and disaster events as well as emerging threats. Mayor’s Order 2012-82 (June 15, 2012).

      Mayor’s Emergency Preparedness Council, https://hsema.dc.gov/page/district-columbia-emergency-preparedness-council.

      4.5.3 National Capital Region Emergency Preparedness Council

      The National Capital Region Emergency Preparedness Council (NCREPC) is an advisory body which reports to the Metropolitan Washington Council of Governments (MWCOG) Board of Directors. The MWCOG is an independent, nonprofit association that brings area leaders together to address major regional issues in the District, suburban Maryland and Northern Virginia. MWCOG’s membership is comprised of 300 elected officials from 22 local governments, the Maryland and Virginia state legislatures, and the United States Congress. NCREPC derives its authority from a Charter adopted by the MWCOG Board on November 13, 2002.

      The NCREPC makes policy recommendations to the MWCOG Board through the Public Safety Policy Committee and makes procedural or other recommendations to the MWCOG Board or, through the MWCOG Board, to various regional agencies with emergency preparedness responsibilities or operational response authority. The NCREPC oversees and implements the Regional Emergency Coordination Plan (RECP); coordinates activities of the various Regional Emergency Support Function (RESF) Working Groups as they develop specific procedures and relationships; oversees the development of plan annexes and establishes such additional plan annexes as may be desirable; and develops training or tests of various components of regional emergency preparedness in conjunction with MWCOG's Chief Administrative Officers Committee (CAO).

      National Capital Region Emergency Preparedness Council, https://www.mwcog.org/committees/ncr-emergency-preparedness-council/.

      4.5.4 District of Columbia Emergency Support Function #8 Department of Health, Health and Medical Coalition

      The District of Columbia Department of Health, Health and Medical Coalition (DC Health-HMC) serves as a strategic planning committee and advisor to the Director of DC Health (DC Health Director).  As such, it fosters partnerships among government agencies, health care providers, and community partners to strengthen the District’s response to emergencies. DC Health-HMC facilitates information, communication and resource sharing and works to maximize the utilization of limited existing resources.  It also coordinates trainings, drills, and exercises between state, local, and federal partners.

      4.6 Emergency Planning

      4.6.1 District Response Plan

      The Mayor has authority to establish a public emergency preparedness program that utilizes the services of all appropriate District agencies. D.C. Official Code § 7-2302(a). The DRP was created pursuant to this authority, for the purposes of preparing against and responding to all emergencies and disasters. The DRP unifies and coordinates the efforts of District departments and agencies, non-governmental and voluntary organizations, and regional and federal partners that may be involved in emergency management and homeland security with the goal of protecting life and property and ensuring public safety.

      4.6.2 Emergency Support Function #8 – Health and Medical Services

      Emergency Support Function (ESF) 8 – Health and Medical Services provides coordinated District medical assistance and resources to respond to public health and medical care needs following a public emergency. Assistance provided under ESF #8 is directed by the HEPRA and is supported by several District agencies and private health service providers.

      See sections 2.4.1 and 2.4.2 of the Manual for additional information regarding ESF #8.

      4.6.3 Emergency Support Function #13 – Law Enforcement

      ESF #13 – Law Enforcement provides for the safety of citizens and security of property during public emergencies. It prescribes the procedures for the command, control, and coordination of District ESF #13 agencies to conduct emergency operations in the District. It also establishes interagency relationships with the ESF #13 federal law enforcement. In the District, ESF #13 is directed by the Metropolitan Police Department (MPD).

      During public emergency operations, ESF #13 manages and coordinates law enforcement activities, and provides personnel and equipment resources to execute response activities in the public safety and security area.  Examples of the support provided under ESF #13 include:

      • Supporting public safety and security operations in the field;
      • Enhancing situational awareness at operations centers; and
      • Aiding planning and decision making by the Consequence Management Team (CMT).

      District of Columbia Response Plan, https://hsema.dc.gov/sites/default/files/dc/sites/hsema/page_content/attachments/District%20Response%20Plan%202015.pdf

      4.7 Emergency Operations Center

      The Emergency Operations Center (EOC) integrates regional, federal, and local information and communications on a daily basis, and serves as the main operational command and control center for consequence management during an emergency, disaster, Special Event, and NSSE in the District. During events or incidents that impact the National Capital Region (NCR), the EOC ensures information-sharing, coordination and communications with NCR jurisdictions utilizing a variety of communication tools.

      The EOC maintains direct contact with NCR jurisdictions and federal counterparts via landline, hotlines, radio, WebEOC, closed-circuit television (CCTV), and other non-secure systems to ensure constant receipt and dissemination of information.

      HSEMA Operations Division, https://hsema.dc.gov/page/hsema-operations-division.

      4.8 Mutual Aid

      The Mayor may enter into interstate civil defense compacts with states to provide mutual aid to meet any emergency or disaster from enemy attack or other cause, natural or otherwise. The form of the compact is specified in D.C. Official Code § 7-2209(a).  

      See section 12.6 of the Manual for information about mutual aid agreements related to mass fatality incidents.

      4.9 Emergency Management Assistance Compact

      The Emergency Management Assistance Compact (EMAC) is designed to provide for mutual assistance between the states that entered into the compact in managing any emergency or disaster that is duly declared by the Governor (Mayor) of the affected state(s), whether arising from natural disaster, technological hazard, man-made disaster, civil emergency aspects of resources shortages, community disorders, insurgency, or enemy attack. See D.C. Official Code § 7-2332.

      EMAC was ratified by the United States Congress in 1996 by Public Law 104-321, making it the first national disaster-relief compact to be signed by the United States Congress since the Civil Defense and Disaster Compact of 1950. D.C. Official Code § 7-2332 provides the Mayor with authority to enter into EMAC. All 50 states, the District, Puerto Rico, Guam, and the U.S. Virgin Islands have enacted legislation to enter into EMAC.

      EMAC offers assistance during declared states of emergency through a system that allows states to send personnel, equipment, and commodities to help disaster relief efforts in other states. Once the conditions for providing assistance to a requesting state have been set, the terms constitute a legally binding contractual agreement that by which the requesting state is made responsible for reimbursement.

      The EMAC legislation helps resolve issues related to liability and responsibility for costs and allows for credentials, licenses, and certifications to be honored across state lines. See http://www.emacweb.org for more information.

      4.10 The Emergency Medical Treatment and Active Labor Act

      The Emergency Medical Treatment and Active Labor Act (EMTALA) is a federal law that requires all Medicare-participating hospitals with dedicated emergency departments to provide appropriate medical screening exams to all individuals who come to the emergency department, regardless of ability to pay, to determine if the individual has an emergency medical condition. If an emergency medical condition is found, the hospital must either treat and stabilize the patient to the best of its ability or transfer the patient to another facility that has the capability and capacity to treat the patient. 42 U.S.C. § 1395dd.

      Hospitals have expressed concern regarding their ability to comply with EMTALA requirements during emergencies. In response to these concerns, the Centers for Medicare and Medicaid Services (CMS) published a fact sheet in 2009 during the H1N1 pandemic to clarify options that are permissible under EMTALA. Centers for Medicare & Medicaid Services, Fact Sheet for Medicaid and CHIP Providers Influenza A (H1N1) Flu.

      In addition to these options, waivers of EMTALA are possible during emergencies through Section 1135 of the Social Security Act. Additional information regarding 1135 waivers, including required elements, can be found at http://www.phe.gov/Preparedness/legal/Pages/1135-waivers.aspx.

  4. MEDICAL COUNTER MEASURES

    • 5.1 Summary

      In the event of a major disaster or emergency, critical medical supplies will be needed across the District of Columbia (the District). These items, often referred to as medical countermeasures (MCM), may come from many sources, including District stockpiles, hospital and health system stockpiles, privately owned stockpiles, neighboring jurisdictions through mutual aid, and federal stockpiles. MCM include both pharmaceutical interventions, such as vaccines, antimicrobials, antidotes, and antitoxins, and non-pharmaceutical interventions, such as ventilators, diagnostics, personal protective equipment (PPE), and patient decontamination that may be used to prevent, mitigate, or treat the adverse health effects of an intentional, accidental or naturally occurring public health emergency. A terrorist attack employing biological or chemical weapons may cause mass casualties that require rapid distribution and dispensing of MCM to minimize morbidity and mortality. Similarly, disease outbreaks and natural disasters such as flooding may cause serious health impacts for entire populations that require MCM to mitigate impacts. The Mayor of the District of Columbia's (the Mayor) authority to declare a public emergency and subsequent public health emergency, as well as federal laws, authorize or guide the use of MCM, including liability exemptions in the use of MCM.     

      5.2 Mayor’s Authority

      The Mayor of the District of Columbia (the Mayor) has the authority to declare a state of public emergency (D.C. Official Code § 7-2304) and a subsequent state of public health emergency (D.C. Official Code § 7-2304.01). See section 4.2. In both of these situations, the Mayor’s declaration could implement a wide range of measures designed to respond to and mitigate the emergency, including the deployment of medical countermeasures (MCM). For example, the terms of the declaration could include a temporary overriding of District of Columbia (District) law so as to establish a grant of authority to the Director of the Department of Health (DC Health Director) (or the District’s Chief Health Officer or Chief Medical Officer, or a similarly qualified official) to issue one or more “standing medical orders” or “blanket prescriptions” to enable the distribution, dispensing, and administration of prophylactic medications and/or other pharmaceuticals as a means of combating the emergency and protecting potentially exposed individuals.

      5.3 Strategic National Stockpile

      The Strategic National Stockpile (SNS), which includes drugs, vaccines, biological products, medical devices, and other supplies, is maintained by the Secretary of the United States Department of Health and Human Services (HHS Secretary) to provide for the emergency health security of the United States. The HHS Secretary may deploy the SNS to respond to an actual or potential public health emergency or to otherwise protect the public health or safety, or as required by the Secretary of the United States Department of Homeland Security (DHS Secretary) to respond to an actual or potential emergency. The federal government established the SNS, which is managed by the Centers for Disease Control and Prevention (CDC), to augment local supplies of critical medical items. See 42 U.S.C. § 247d-6b.

      One component included in the SNS is “Push Packs”, which are caches of large quantities of medicines, antidotes, and medical supplies that are responsive to a wide range of threats. Push Packs include MCM that may be useful in biological attacks (using agents such as anthrax, plague, and tularemia), nuclear attacks, radiological events, and explosive events, as well as natural disasters and other human caused incidents.

      CHEMPACKS are a component of the SNS that are prepositioned and stored locally to provide chemoprophylaxis to nerve agents released during a large-scale chemical event. Having these items forward deployed allows them to be used to treat suspected or confirmed victims immediately. This is essential since any delay in treatment could gravely affect patient outcomes.

      5.4 Chemical, Biological, Radioactive, Nuclear, or Explosive Event

      Human casualties are the highest priority for emergency responders in natural disasters and human-caused disasters or emergencies, especially acts of terrorism involving Chemical, Biological, Radioactive, Nuclear, or Explosive (CBRNE) weapons. A terrorist attack may be localized or widespread and multiple CBRNE events may occur simultaneously over a short span of time, or in combination with another hazard. The effects may be immediate (chemical agents) or delayed (biological agents). Persons who are not symptomatic but are known or believed to have been exposed will receive MCM as prophylaxis in accordance with the District’s emergency medical plans.

      Persons who experience symptoms resulting from any hazard will be referred to a designated facility for care and/or treatment. For example, during the 2014 Ebola outbreak, there were a number of hospitals designated nationally as treating facilities, including Children’s National Medical Center, Medstar Washington Hospital Center, and George Washington University Hospital in the District.  https://dc.gov/release/dc-based-hospitals-among-35-nationally-recognized-treatment-centers-ready-handle-ebola.

      5.5 Personnel Authorized to Dispense Medications During a State of Public Health Emergency

      The Mayor has the authority, as part of a public health emergency order, to implement emergency measures regarding the dispensing of medication. D.C. Official Code § 7-2304.01(c)(4), (d)(1), (d)(2), (d)(4).

      For example, the order may include a provision to expand the types of heath care providers authorized to dispense medications.

      The Mayor’s authority in this regard may be delegated to the Chief Public Health Officer/DC Health Director.

      5.6 Procurement or Taking of Private Property

      The Mayor has the authority, as part of a public health emergency order, to procure property, supplies, and equipment as necessary to respond to the emergency. D.C. Official Code § 7-2304(b).

      The District’s procurement laws and regulations provide procedures for emergency procurements when there is an imminent threat to the public health, welfare, property, or safety, or to minimize disruption in District services when an emergency condition exists. See D.C. Official Code § 2-354.05; 27 DCMR § 1702.

      5.7 Liability Protection

      The Mayor has the authority, as part of a public health emergency order, to appoint health care providers as agents of the District, and to specifically exempt healthcare providers from civil liability. D.C. Official Code § 7-2304.01(d)(2), (d)(3).

      The Advanced Life Support Act of 1977 (D.C. Official Code § 7-401 et seq.) provides for a blanket exemption from civil liability for any person who renders medical care in good faith in an emergency situation on a volunteer basis. This law limits liability for rendering medical care or assistance during any emergency event with or without a public health emergency order. It protects any non-licensed individual rendering emergency care as a Good Samaritan. This law also covers any emergency medical technician (paramedic, intermediate or basic) certified in any state or the District who is providing assistance under the direction of a licensed physician, as well as the licensed physician who is providing the emergency medical instruction as long as the care is provided in good faith and does not constitute gross negligence. During a declared emergency pursuant to D.C. Official Code § 7-2304, this protection is also extended to the employer of the emergency medical technician, provided that the care is rendered in good faith and does not constitute gross negligence.

      The Public Readiness and Emergency Preparedness (PREP) Act of 2005 Pub. L. No. 109-148; 42 U.S.C. §§ 247d-6d, 247d-6e authorizes the HHS Secretary to issue a declaration that provides immunity from tort liability for claims of loss (except willful misconduct) caused by, arising out of, relating to, or resulting from administration or use of countermeasures to diseases, threats, and conditions determined by the HHS Secretary to constitute a present, or credible risk of a future public health emergency, including an Emergency Use Authorization (EUA). The immunity applies to entities and individuals involved in the development, manufacture, testing, distribution, administration, and use of such countermeasures, as well as products or technology intended to enhance medical countermeasures. The HHS Secretary's declaration includes, among other things:

      • The countermeasures covered by the declaration;
      • The category of diseases, health conditions, or health threats for which administration and use of the countermeasures are recommended;
      • The effective time period of the declaration;
      • The population of individuals receiving the countermeasure;
      • Limitations, if any, on the geographic area for which immunity is in effect;
      • Limitations, if any, on the means of distribution of the countermeasure; and
      • Any additional persons identified by the HHS Secretary as qualified to prescribe, dispense, or administer the countermeasures.

      The PREP Act also authorizes a fund in the United States Treasury to provide compensation for injuries directly caused by administration or use of countermeasures covered by the Secretary's declaration.

      An EUA permits the use of an unapproved drug, device, or biological product, or an unapproved use of an approved drug, device, or biological product once a determination has been made by the HHS Secretary that sufficient justification exists based on an actual or potential public health emergency. The authority for an EUA is pursuant to section 564 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 360bbb-3 et seq.

       

  5. OPERATION OF THE COURTS AMID PUBLIC HEALTH THREATS

    • 6.1 Summary

      In the event of a public health emergency, such as the widespread outbreak of an infectious disease within a community, the standard procedures of the court may need to be altered in order to assure the safety of persons participating in judicial proceedings. The court might have to determine whether an individual suspected of being infected with a contagious disease should be permitted to physically appear in the courtroom and, if not, how the proceedings will be conducted to adequately ensure the individual's participation. Other issues might arise, such as the sufficiency of the individual’s access to and consultation with counsel, the availability of court judicial and non-judicial personnel not affected by the contagious disease, and the need to relocate to safer and more sanitary premises.  A public health emergency could strain the resources of the courts and require innovative solutions that ensure the continued operation of the judicial system while respecting constitutional due process guarantees.

      6.2 Appearance of Individuals Posing a Potential Threat to Public Health

      6.2.1 Appearance by Means Other Than in Person

      Although isolation and quarantine orders may, under certain circumstances, be issued following ex parte hearings, an individual affected by such an order is subsequently entitled to a hearing on the subject within 10 days after the District of Columbia Superior Court (Superior Court) receives the individual’s petition.   D.C. Official Code § 7-134(b); see also U.S. Const. amend. V.   However, an individual who is the subject of an isolation or quarantine order may be physically unable to appear in court due to illness, isolation, or quarantine. Alternatively, the court may be unwilling to permit an infected or potentially infected individual to appear in person because of the health threat such an individual poses to court personnel, counsel, and the attending public (if the hearing is not closed).

      An ex parte hearing is one that has only one party present, which is an exception to the general rule of court procedure that both parties must be present at any argument before a judge.

      In the event an individual should not be permitted to attend proceedings in person, the court may wish to consider an alternative procedure.  Super. Ct. Civ. R. 43(a) provides that “[t]he Court may, for good cause shown in compelling circumstances and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location.”  Superior Court Administrative Order 12-16 provides that “court video and web conferencing technology ... will be made available ... where witnesses and other parties are physically unavailable to appear in court.” 

      For misdemeanor prosecutions for criminal violations under D.C. Official Code § 7-140, Super. Ct. Crim. R. 43 requires the defendant to be present in the court unless he or she consents in writing to the arraignment, plea, trial, and sentencing occurring in his or her absence.

      6.3 Closure of Hearings or Sealing of Records

      In addition to the question of whether a person who is infected or potentially infected will be physically present in the courtroom, the court may need to decide whether a hearing should be closed to the public. Furthermore, the court may need to decide whether to order that certain records be sealed.

      The likely basis for closing a hearing would be to protect the individual’s privacy interest in information regarding his or her health condition. The court must weigh the following criteria:

      • The party seeking to close the courtroom must advance an overriding interest that is likely to be prejudiced;
      • The closure must be no broader than necessary to protect that interest;
      • The trial court must consider reasonable alternatives to closing the proceeding; and
      • The trial court must make findings adequate to support the closure.

      Waller v. Georgia, 467 U.S. 39, 48 (1984); Morgan v. Foretich, 521 A.2d 248, 251 (D.C. 1987).

      The court is required to evaluate this interest in each case. The individual may waive his or her privacy interest.

      The Superior Court has the authority to seal cases and documents by court order pursuant to Sup. Ct. Civ. R. Rule 5-III.  However, the public has a presumptive right of access to a broad range of court records in civil cases.  See Mokhiber v. Davis, 537 A.2d 1100, 1106, 1111 (D.C. 1988) (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)) for the proposition that courts of this country recognize the public’s general right to access, inspect, and copy public records and documents, including judicial records).  The common law presumptive right of access to judicial records is “bolstered when the materials sought will shed light on events of historical or contemporary interest to a wider audience; an issue of greater and wider public importance may create a stronger claim of access than a less important issue.”  Id. at 1115-16.

      A party seeking to seal a judicial record must show specific harms that are substantial enough to outweigh the presumption of openness. Mokhiber, 537 A.2d at 1115-16. The Superior Court has discretion to weigh a moving party’s need for secrecy against the public’s right of access. In re Application of National Broadcasting Co., 653 F.2d 609, 613 (D.C. Cir. 1981) (noting “[b]ecause of the difficulties inherent in formulating a broad yet clear rule to govern the variety of situations in which the right of access must be reconciled with legitimate countervailing public or private interests, the decision as to access is one which rests in the sound discretion of the trial court.”).

      Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), a covered health care provider may disclose a person’s PHI in connection with a judicial proceeding in response to a court order, or in response to a subpoena or other lawful process if the provider receives satisfactory assurances that the party seeking the information has made a reasonable effort to provide notice to the person or seek a protective order from the court.  45 C.F.R. § 164.512(e)(1). See section 10.4.4 D.

      6.4 Protection of Court Personnel

      In the event of an outbreak of infectious disease in a community, the court may find it necessary to adopt the procedures discussed in section 6.2.1 to ensure that an individual subject to an isolation or quarantine order does not expose court personnel to the disease. In certain circumstances, such as when the outbreak has affected large numbers of persons in the community or the infectious disease is easily transmitted through airborne droplets, the court may need to limit public access to the courtroom. In extreme circumstances, the court itself may need to relocate to a non-affected area to ensure its continued operation.

      6.4.1 Relocation of the Court

      1. Relocation of Hearings at Judicial Discretion – Trials upon the merits must be conducted in open court and so far as convenient in a regular courtroom.  Super. Ct. Civ. R. 77(b). However, all other acts or proceedings may be conducted without the attendance of the clerk or other court officials and at any place either within or without the District of Columbia (the District). Id. A hearing may be conducted outside the District with the consent of all affected parties. Id.
         
      2. Emergency Authority to Conduct Proceedings Outside District of Columbia – The Superior Court may hold special sessions outside the District when the chief judge finds that because of emergency conditions, no location within the District is reasonably available where such special sessions could be held.  D.C. Official Code § 11-911(a).  The Superior Court may transact any business at the special session outside the District which it has the authority to transact at a regular session, except that a criminal trial may not be conducted without the consent of the defendant.  D.C. Official Code § 11-911(b).

      6.5 Tolling or Delaying of Proceedings

      If a natural disaster or other emergency situation requires the closure of the Superior Court or renders it impracticable for the United States or District government or a class of litigants to comply with deadlines imposed by any Federal or District law or rule that applies in the Superior Court, the chief judge may enter such orders as may be appropriate to delay, toll, or otherwise grant relief from the time deadlines imposed by otherwise applicable laws or rules for such period as may be appropriate for any class of cases pending or thereafter filed in the Superior Court, except that the writ of habeas corpus may not be suspended. D.C. Official Code § 11-947(a)(2)(A), (a)(4). This authority extends to all laws and rules affecting criminal and juvenile proceedings (including, pre-arrest, post-arrest, pretrial, trial, and post-trial procedures) and civil, family, domestic violence, probate, and tax proceedings. D.C. Official Code § 11-947(a)(2)(B).

      If the chief judge of the Superior Court is absent or disabled, this authority may be exercised by the judge designated under D.C. Official Code § 11-907(a) or by the Joint Committee on Judicial Administration.  D.C. Official Code § 11-947(a)(3).

      An order may not toll or extend time deadlines for a period of more than 14 days, except that if the chief judge determines that an emergency situation requires additional extensions, the chief judge may, with the consent of the Joint Committee on Judicial Administration, enter additional orders to further toll or extend such time deadlines.  D.C. Official Code § 11-947(d).

      6.6 Proceedings Involving Numerous Persons

      In the event of an infectious disease outbreak, the Superior Court may be called upon to issue numerous isolation and quarantine orders. Judicial surge capacity may be obtained through several logistical and procedural measures.

      6.6.1 Additional Juridical Personnel

      1. Additional Judges – Upon presentation of a certificate of necessity by the chief judge of the Superior Court, the chief judge of the District of Columbia Court of Appeals (Court of Appeals) may designate and assign temporarily one or more judges of the Court of Appeals to serve as a judge of the Superior Court. D.C. Official Code § 11-707(b).
         
      2. Use of Magistrate Judges – Magistrate judges may hear civil and criminal proceedings with the consent of the parties involved.  D.C. Official Code § 11-1732(j)(5)

        Magistrate judges may be appointed as masters and may hold trial proceedings and make or recommend findings of fact on issues to be decided by the Superior Court without a jury if appointment is warranted by some exceptional condition.  Super. Ct. Civ. R. 53.

      6.6.2 Consolidation of Cases

      TheSuperior Court may order consolidation of any or all the matters in issue when the proceedings involve a common question of law or fact.  D.C. Official Code § 7-134(b); Super. Ct. Civ. R. 42(a).

  6. COMMUNICABLE DISEASE REPORTING AND INVESTIGATIONS

    • 7.1 Summary

      Mandatory communicable disease reporting affords public health officials with the opportunity to investigate communicable diseases and take action to protect the health of the community. Identification and reporting of communicable disease is a collaborative effort among physicians and other health care providers, veterinarians, hospitals and other health facilities, laboratories, and the local public health system. Timely reporting of the specific illness or condition, as well as any unusual manifestations of disease, will allow public health officials to determine if further action is necessary to protect public health, such as isolation or quarantine of an individual or group of individuals. Thus, communicable disease reporting and investigation is an integral part of public health emergency law.

      Before action is taken, it is critical that officials have a thorough understanding of the disease in question, including issues such as mode of transmission (i.e., airborne or through contact with bodily fluids) and how long the disease incubates in an affected individual before they become contagious (the incubation period). Thus, District of Columbia (District) epidemiologists should be consulted before action is taken.

      Today’s global nature of travel and commerce means that disease spreads quickly throughout the world, requiring increased vigilance for emerging infectious diseases.  Examples of such emerging infectious diseases include Ebola, Zika, Middle Eastern Respiratory Syndrome (MERS), and Severe Acute Respiratory Syndrome (SARS).

      7.2 Communicable Diseases

      A communicable disease is any disease denominated as a reportable disease under D.C. Official Code § 7-131, including any illness due to an infectious agent or its toxic product that is transmitted:

      • Directly or indirectly to a well person from an infected person, animal, or ectoparasite (e.g., lice, fleas);
      • Through the agency of an intermediate host or vector, or by exposure to chemical or radiological agents within the immediate environment; or
      • Occurring as an outbreak of illness or toxic conditions, regardless of causation, in an institution or other identifiable group of people.

      D.C. Official Code § 7-132(2).

      Chemical and radiological agents and other toxic conditions are included within the definition of a communicable disease. Accordingly, communicable disease reporting in the District of Columbia (the District) is not limited to traditional infectious diseases, and diseases that have or could result from exposure of individuals to chemical or radiological agents or other toxic conditions must also be reported to the Director of the Department of Health (DC Health Director).

      As many diseases are transmitted via animals and vectors (i.e., mosquitoes), see section 13.0, for additional information.

      7.3 Communicable Disease Reporting

      See Appendix 5.0 for a chart of notifiable diseases and conditions developed by the Department of Health (DC Health) (last revised January 2017). To ensure that the information is the most current, visit: https://dchealth.dc.gov/service/infectious-diseases.

      7.3.1 Reportable Diseases

      1. These diseases must be reported by telephone to the DC Health Director immediately upon provisional diagnosis or the appearance of suspicious symptoms, with written confirmation within 24 hours:
      • Animal bites;

      • Anthrax (Bacillus anthracis);

      • Botulism;

      • Cholera (Toxigenic Vibrio cholerae 01 or 0139);

      • Diphtheria;

      • Encephalitis, acute arboviral (e.g. Eastern Equine Encephalitis, St. Louis Encephalitis, Western Equine Encephalitis);

      • Hantavirus pulmonary syndrome (HPS);

      • Hemolytic uremic syndrome;

      • Hepatitis A;

      • Influenza-associated mortality (patients less than eighteen (18) years of age);

      • Influenza A, novel;

      • Listeriosis;

      • Measles (Rubeola);

      • Meningitis (Neisseria meningitidis);

      • Meningococcal disease, invasive;

      • Middle East Respiratory Syndrome (MERS);

      • Mumps;

      • Pertussis (Whooping cough);

      • Plague (Yersinia pestis);

      • Poliovirus infection;

      • Rabies (animal or human);

      • Rubella (German measles), including congenital rubella syndrome;

      • Severe Acute Respiratory Syndrome (SARS);

      • Shiga toxin-producing Escherichia coli (STEC);

      • Smallpox;

      • Staphylococcal infections in newborns (nosocomial);

      • Tularemia;

      • Typhoid fever (Salmonella typhi);

      • Vibriosis (non-cholera Vibrio species infections);

      • Viral hemorrhagic fevers (Ebola or other);

      • Yellow fever;

      • An outbreak that may be of public health concern (including health care associated and foodborne); and

      • An emerging infectious disease or an unusual occurrence of any disease.

      22B DCMR § 201.1.

      A health care associated infection (HAI) is defined as infection that develops in a patient or resident in a healthcare facility that was not present or incubating at the time of admission.  An HAI outbreak is the occurrence of more cases of infections than expected in a given healthcare facility area among a specific group of people over a particular period of time, or when the number of infections in a healthcare facility is higher than the baseline rate for that facility. 22B DCMR § 299.1.

      A foodborne disease outbreak is defined as an incident in which two or more persons experience a similar illness resulting from ingestion of a common food. 22B DCMR § 299.1.

      1. These diseases must be reported to the DC Health Director in writing within 24 hours after provisional diagnosis or the appearance of suspicious symptoms:
      • Brucellosis;

      • Campylobacteriosis;

      • Chikungunya;

      • Dengue;

      • Haemophilus influenza, invasive disease;

      • Hansen's disease (Leprosy);

      • Lymphogranuloma venerium (LGV, including atypical LGV);

      • Meningitis, (aseptic or viral, fungal, and bacterial (other than N. meningitidis));

      • Psittacosis (Ornithosis);

      • Q Fever;

      • Streptococcal infection, invasive (Pneumococcal disease);

      • Tetanus; and

      • Zika virus disease (including congenital Zika virus infection).

      22B DCMR § 201.2.

      1. These diseases must be reported to the DC Health Director in writing within 24 hours after provisional diagnosis or the appearance of suspicious symptoms, but only if there are 3 or more cases that occur within a 7-day period in a school or childcare facility:
      • Conjunctivitis (Pink Eye);

      • Gastrointestinal illness;

      • Hand, foot, and mouth disease;

      • Head lice;

      • Impetigo;

      • Pinworm (Enterobiasis);

      • Ringworm (Tinea);

      • Scabies; and

      • Streptococcal non-invasive, Group A (Scarlet fever and strep throat).

      22B DCMR § 201.2(k).

      1. These diseases must be reported to the DC Health Director in writing within 48 hours after diagnosis or the appearance of suspicious symptoms:
      • Babesiosis;

      • Chancroid;

      • Chickenpox (morbidity, pediatric mortality);

      • Chlamydia tracomatis infection (including PID, perinatal, and trachoma);

      • Coccidioidomycosis;

      • Cryptosporidiosis;

      • Cyclosporiasis;

      • Ehrlichiosis;

      • Giardiasis;

      • Gonococcal infection;

      • Granuloma inguinale;

      • Hepatitis (acute B, C);

      • Human immunodeficiency virus (HIV) infection, and pregnancies in HIV-infected women;

      • Kawasaki disease;

      • Legionellosis;

      • Leptospirosis;

      • Lyme Disease (Borrelia Burgdorferi);

      • Malaria;

      • Meliodosis;

      • Powassan virus;

      • Rickettsiosis, spotted fever (e.g. Rocky Mountain Spotted Fever);

      • Salmonellosis;

      • Shigellosis;

      • Syphilis (all stages congenital);

      • Toxic shock syndrome (Staphylococcal, Streptococcal, and other);

      • Trichinosis (Trichinellosis);

      • Tuberculosis (TB);

      • Urethritis, atypical;

      • Vaccine adverse events; and

      • West Nile virus.

      22B DCMR § 201.3.

      7.3.2 Information to Be Reported

      When reporting diseases to the DC Health Director as indicated above, the report must be filed on a form approved by the DC Health Director, and must include the following:

      • Information regarding the person submitting the report, including:
        • First and last name;
        • Phone number;
        • Facility name;
        • Facility address;
        • Name of provider who saw patient; and
        • Date report was sent.
      • Information regarding the patient, including:
        • First and last name;
        • Date of birth;
        • Sex;
        • Home address;
        • Race or ethnicity;
        • Telephone number; and
        • School or place of occupation.
      • Disease, condition, or symptom information, including:
        • Name of suspected or confirmed disease;
        • Date of symptom onset;
        • Date of diagnosis;
        • Supporting laboratory documentation; and
        • Other epidemiologic information the DC Health Director may request.

      22B DCMR § 201.9.

      District law requires the use of an approved form in order to report infectious diseases. The most up-to-date forms for reporting various diseases can be found at https://dchealth.dc.gov/service/infectious-diseases.

      7.3.3 Persons and Entities Having a Duty to Report and Special Reporting Obligations

      1. Physicians and Other Health Care Providers – Physicians and other health care providers are required to report communicable disease cases as described above.  In addition, physicians and other health care providers must report information regarding carriers or contacts to the DC Health Director. 22B DCMR § 202.3.

        Physicians and other health care providers must advise the infected adult or the infected minor’s parent or guardian of the applicable requirements for isolation, quarantine, and restriction of movement. 22B DCMR § 202.4.

        Physicians who are treating or caring for a person with a communicable disease must immediately report the name, address, and other relevant information to the DC Health Director in the following circumstances:
      • When the person is delinquent in treatment;
      • When the person violates isolation or quarantine; and
      • When there is any change in location of the case (must be reported to the DC Health Director by phone or in writing within 24 hours of the change).

       22B DCMR § 202.10, 202.12.

      In addition to the duty to report the diseases described above, physicians and other licensed health care providers must report an HIV/AIDS diagnosis, as well as a pregnancy in an HIV-infected woman, to the DC Health Director within 48 hours of diagnosis and furnish information the DC Health Director deems necessary to complete a confidential case report. 22B DCMR § 206.2. These reports must include the following information:

      • Patient’s name;
      • Address of residence, including city, state, and zip code;
      • Sex;
      • Race or ethnicity;
      • Mode of exposure;
      • Place or country of birth;
      • Date of birth;
      • Date of diagnosis of HIV or AIDS and opportunistic infections;
      • Name/telephone number of person making report; and
      • Name of entity providing health/medical services.

      22B DCMR § 206.3.

      Protected health information (PHI) which is protected under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), may be disclosed for public health activities, including disease reporting and surveillance. See section 10.4.4 B.

      1. Veterinarians – Veterinarians are required to report communicable disease cases as described above.  In addition, veterinarians must report information regarding carriers or contacts to the DC Health Director. Such reports must include a statement of the instructions provided regarding isolation, quarantine, and restriction of movement.  22B DCMR § 202.1-202.3.

      Veterinarians must advise the person in charge of the infected animal of the applicable requirements for isolation, quarantine, and restriction of movement. 22B DCMR § 202.4.

      Veterinarians or other persons who have reason to suspect any of the following must make an immediate report to the DC Health Director by telephone, followed by an immediate written report to the DC Health Director:

      • A dog or other animal is suffering from rabies;

      • A dog or other animal has been bitten by or exposed to a dog or other animal suffering with rabies; or

      • A person with potential rabies exposure as a result of having been bitten or exposed to a dog or other animal.

       22B DCMR § 203.1.

      The report made by the veterinarian must include the information listed in section 7.3.2 above, as well as the following information:

      • The name, contact information, and place of residence of the person owning or harboring the animal;

      • The location of the animal; and

      • The dog license number and rabies license number, if any.

                       22B DCMR § 203.3.

      If a report is made to a member of the Metropolitan Police Department (MPD), DC Health Animal Services Animal Care and Control Fields Services Division, or a privately owned veterinary hospital or clinic of any of the foregoing events, such event must be immediately communicated to the DC Health Director, followed immediately by a written report to the DC Health Director.

      1. Schools – Schools are required to inform the DC Health Director within two hours when any student has contracted the following diseases:
      • Measles;
      • Meningococcal meningitis;
      • Mumps;
      • Pertussis;
      • Rubella;
      • TB; or
      • Hepatitis A or any other food-borne illness.

      22B DCMR § 209.6.

      The specific form for schools to report these infectious diseases can be found at: https://dchealth.dc.gov/node/115022.

      1. Laboratories – A laboratory that tests a communicable disease specimen must report its findings directly to the person who submitted the specimen.  In addition, laboratory operators must report positive tests for syphilis to the DC Health Director in writing within 24 hours, including the name and address of the person requesting the test. 22B DCMR § 211.3. Laboratory operators must also report HIV positive tests, as well as tests that are indicative of an HIV diagnosis such as CD4 and viral load tests, to the DC Health Director or his/her designee in writing within 48 hours and include the following information:
      • The name of the subject of the test;
      • The name and address of the physician or provider requesting the test; and
      • The patient’s medical record number.

      22B DCMR § 211.4.

      1. Blood Banks – Physicians in charge of blood banks must report positive tests for syphilis to the DC Health Director in writing within 24 hours. Physicians in charge of blood banks must also report HIV positive tests to the DC Health Director in writing within 48 hours. 22B DCMR § 211.8.
      2. Child Care Facilities – Child care facilities must immediately report to the DC Health Director the presence of an individual who has or is reasonably suspected of having a reportable communicable disease. 29 DCMR § 322.1.
      3. Forms – Reporting forms for sections 7.3.3 B, D, E, and F can be found at https://dchealth.dc.gov/service/infectious-diseases.

      22-B DCMR Chapter 2, amended in November 2016, is currently under review for additional revisions.  Thus, it is important to consult the most recent version of this rule.

      7.4 Communicable Disease Investigations

      7.4.1 Disease Investigation Authority

      The DC Health Director is responsible for initiating an investigation upon receipt of a report of:

      • A case or suspected case of a communicable disease; or
      • A communicable disease contact or carrier.

      22B DCMR § 210.1.

      7.4.2 Purpose of Investigation

      The investigation should determine the source of the infection and determine if the proper management and control measures are in place. 22B DCMR § 210.1.

      7.4.3 Extent of Investigation

      The DC Health Director may:

      • Enter and inspect public or private property in the District. 22B DCMR § 210.2;
      • Institute preventive measures to eradicate the vectors and sources of the communicable disease. 22B DCMR § 210.3;
      • Order an individual having or suspected of having a communicable disease, or of being a contact or carrier of a communicable disease, to submit to an examination. 22B DCMR § 210.4; and/or
      • Order an individual having or suspected of having a communicable disease, or of being a contact or carrier of a communicable disease, to submit specimens of body secretions, excretions, fluids, and discharges for laboratory examination. 22B DCMR § 210.5.

      In addition to controlling and investigating communicable disease, District officials also have the authority to control and investigate public nuisances. A public nuisance is defined as “an unreasonable interference with a right common to the general public.” Restatement (Second) of Torts, § 821B(1) (1979); B & W Management, Inc. v. Tasea Inv. Co., 451 A.2d 879 (D.C. 1982). In the public health context, public nuisances arise from actions that affect the health or safety of the community; the police powers of state government allow it to take action against the public nuisance.  For example, failing to follow specific guidelines with regard to swimming pools and spas constitutes a public nuisance.  25-C64 DCMR § 6463.1(o).  See section 13.0 for specific nuisance powers with regard to vectors (e.g., mosquitoes, ticks) and rodents.

      7.5 Reporting Deaths from Communicable Diseases

      Physicians are required to immediately notify the DC Health Director by telephone when they issue a certificate of death due to:

      • Cholera;
      • Anthrax;
      • Diphtheria plague (bubonic and pneumonic);
      • Smallpox; or
      • Louse-borne typhus fever.

      22B DCMR § 214.1.

      Special rules apply to the bodies of persons who died from the diseases listed in section 7.5 to prevent the spread of these diseases. 22B DCMR § 214.2 – 214.4.See section 12.6.1 of the Manual.

      Under D.C. Official Code § 5-1405(b)(6), deaths related to disease that may threaten public health are investigated by the Office of the Chief Medical Examiner (OCME).

       

  7. DETENTION OF INDIVIDUALS AND GROUPS OF INDIVIDUALS

    • 8.1 Summary

      District of Columbia (District) law authorizes both the Mayor of the District of Columbia (the Mayor) and the Department of Health (DC Health) to issue detention orders to individuals and groups of individuals. However, typically, the Mayor has delegated detention authority to DC Health. “Quarantine” refers to the detention of an individual or group of individuals who may be affected with communicable disease. “Isolation” may be ordered when an individual or a group of individuals is known to be infected with a communicable disease.

      Detained individuals are entitled to some procedural due process protections, including notice, a right to a hearing, and, in certain situations, the right to appointed counsel. While in detainment, individuals may be subject to medical examination. The results of the medical examination may be used to either release a non-affected individual or prolong the detainment. Individuals who leave detainment without discharge or impede in the detainment of others may be subject to fines and jail time. Individuals may exercise a religious exemption to the appointed place of detainment or compelled medical treatment.

      8.2 Definitions

      8.2.1 Quarantine 

      “Quarantine” separates and restricts the movement of individuals exposed to contagious disease to see if they become sick. Centers for Disease Control and Prevention (CDC), Quarantine and Isolation, http://www.cdc.gov/quarantine/ (last modified March 21, 2017).

      8.2.2 Isolation 

      “Isolation” separates people affected with a contagious disease from people who are not sick. CDC, Quarantine and Isolation, http://www.cdc.gov/quarantine/ (last modified March 21, 2017).

      8.2.3 Affected with Communicable Disease 

       “Affected with a communicable disease” means that an individual is:

      • Infected with a communicable disease or exposed to a chemical or radiological agent that is capable of infecting others with the same disease or radiological agent if permitted to move freely in the general public; or
      • A carrier of or contaminated with an infectious disease or chemical or radiological agent and capable of infecting others with the disease or chemical or radiological agent.

      D.C. Official Code § 7-132(1).

      There is no separate legal definition for “probable cause” as it is used in the isolation and quarantine statutes. As articulated by the District of Columbia Court of Appeals (Court of Appeals), the standard in the criminal context is when an officer “has reasonably trustworthy information at the moment of arrest ‘sufficient to warrant a reasonably prudent [person] in believing that the [suspect has] committed or [is] committing an offense.’” Brown v. United States, 590 A.2d 1008, 1012 (D.C.1991); see also Umanzor v. United States, 803 A.2d 983, 992 (D.C. 2002). In the context of a false imprisonment defense, the Court of Appeals has defined probable cause as “a good faith, reasonable belief in the validity of the arrest and detention.” DeWitt v. District of Columbia., 43 A.3d 291, 295 (D.C. 2012).

      8.3 Rulemaking Authority

      8.3.1 Authority of the Mayor

      The Mayor of the District of Columbia (the Mayor) may promulgate regulations governing isolation, quarantine, and other restricting movement orders. This authority has been delegated to the Department of Health (DC Health). DC Health may issue such regulations when necessary to prevent and control the spread of communicable diseases, environmentally or occupationally related diseases, or other diseases or medical conditions that the DC Health Director has advised should be monitored for epidemiological or other public health reasons. D.C. Official Code § 7-131(a).

      Communicable disease is defined in section 7.2.

      8.3.2 Construction of the Regulations

      Detention regulations are to be constructed liberally to aid public authorities in the protection of public health. D.C. Official Code § 7-144.

      Courts grant great deference to governmental public health authority when individuals have been deprived of their liberty for a public health purpose. See Sch. Bd. of Nassau Cty., Fla. v. Arline, 480 U.S. 273, 288 (1987).

      8.4 Ordering an Individual to Submit to Quarantine, Isolation, and/or Medical Treatment

      8.4.1 Authority of the Mayor

      The Mayor may order an individual to submit to quarantine, isolation, and/or medical treatment (collectively referred to as “detention”). This authority has been delegated to DC Health. DC Health may issue such detention orders when:

      • DC Health has probable cause to believe that an individual is affected with or a carrier of a communicable disease; and,
      • The individual’s presence in the general population is likely to cause death or seriously impair the health of others.

      D.C. Official Code § 7-133 (a); see Jacobson, 197 U.S. 11 (1905).

      There is no separate legal definition for “probable cause” as it is used in the isolation and quarantine statutes. As articulated by the District of Columbia Court of Appeals (Court of Appeals), the standard in the criminal context is when an officer “has reasonably trustworthy information at the moment of arrest ‘sufficient to warrant a reasonably prudent [person] in believing that the [suspect has] committed or [is] committing an offense.’” Brown v. United States, 590 A.2d 1008, 1012 (D.C.1991); see also Umanzor v. United States, 803 A.2d 983, 992 (D.C. 2002). In the context of a false imprisonment defense, the Court of Appeals has defined probable cause as “a good faith, reasonable belief in the validity of the arrest and detention.” DeWitt v. District of Columbia., 43 A.3d 291, 295 (D.C. 2012).

      8.4.2 Content of Detention Orders

      Detention orders for individuals must meet the following requirements:

      • The detention order must be in writing;
      • The detention order must state where the detention is to take place. The place of detention may either be within the District of Columbia (the District) or outside the District, provided that the place of detention is under the supervision of the District Government; and
      • The detention order must be served by the Metropolitan Police Department (MPD) or a designated employee of the District.
        • The server must give a copy of the detention order to the detained individual and explain its contents;
        • The place of detention cannot be a place of imprisonment or jail. Benton v. Reid, 231 F.2d 780, 782 (D.C. Cir. 1956);
        • The server must give a copy of the detention order to the person in charge of the place where the individual is detained; and
        • If the place of detention is a residence, the copy of the detention order may be given to “any person of suitable age and discretion”.

      D.C. Official Code § 7-133(b), D.C. Official Code § 7-134(a).

      See Appendix 1.0 for sample documents related to communicable disease and detention, including DC Health and court orders.

      8.4.3 Duration of Detention Orders

      A detention order expires within 24 hours of issuance. Therefore, prompt service of the order and return of service is necessary. D.C. Official Code § 7-134(a). A District of Columbia Superior Court (Superior Court) judge may extend a detention order if probable cause exists to believe that the detained individual’s presence in the general population is likely to cause death or seriously impair the health of others. D.C. Official Code § 7-134(a).

      8.4.4 Challenging Detention Orders

      If a Superior Court judge extends a detention order beyond 24 hours, the detained individual may petition for a hearing contesting the detention. D.C. Official Code § 7-134(b).

      A hearing on the petition must take place “as soon as practical,” but no later than 10 days after the court receives the petition.  At the hearing, the judge will determine if:

      • The detained individual is affected with a communicable disease; and, if so,
      • Whether the release of the detained individual into the general population would likely cause death or seriously impair the health of others.

      D.C. Official Code § 7-134(b).

      8.4.5 Authority of the Director of the Department of Health 

      The DC Health Director has authority to issue detention orders under 22B DCMR § 210.8.  The DC Health Director may issue a removal and detention order pursuant to the Mayor’s authority (see D.C. Official Code §§ 7-131 to-144) when:

      • The DC Health Director has probable cause to believe that an individual is affected with or is a carrier of a communicable disease; and,
      • The DC Health Director has probable cause to believe that the individual is likely to be dangerous to the life or health of any other person because
        • There are improper facilities or the lack of facilities for isolation; or,
        • The individual is non-cooperative or careless, including any refusal to submit to examination or refusal to be properly treated or cared for, and is likely to be a danger to public health. 22B DCMR § 210.8.

      The DC Health Director may order a placard to be posted on the premises occupied by any individual affected with a communicable disease. 22B DCMR § 210.6. The placard may not be mutilated, defaced, obliterated, concealed or removed without the authorization of the DC Health Director. 22B DCMR § 210.7.

      8.4.6 Religious Exemptions to Detention

      Individuals who, on behalf of themselves, their children or their wards, rely in good faith upon spiritual means or prayer to prevent or cure disease cannot be ordered to detainment in a hospital or other medical institution unless no other place for “quarantine” can be secured. An individual who exercises a religious exemption cannot be compelled to submit to medical treatment. D.C. Official Code § 7-141. See also section 8.4.4 of the Manual.

      This religious exemption is limited to quarantine in an institutional setting and does not permit an individual to disregard an order to be quarantined at home.

      If a court determines that a child is “neglected” and the child’s parent or guardian takes a position clearly beyond the child’s best interest or displays judgment contrary to all competent medical evidence, the court must act in the child’s best interest regardless of any objection of the parent or guardian. See In re K.I., 735 A.2d 448 (D.C. 1999).

      8.5 Ordering Groups to Submit to Quarantine, Isolation, and/or Medical Treatment

      8.5.1 Authority of the Mayor

      The Mayor may order groups of individuals to submit to detention. This authority has been delegated to DC Health. DC Health may order groups of individuals to submit to detention when:

      • The DC Health Director has probable cause to believe that the group is affected with a communicable disease; and,
      • The group’s ability to move freely in the general population is likely to cause death or seriously impair the health of others.

      D.C. Official Code § 7-133(c).

      8.5.2 Content of Group Detention Orders

      Detention orders for groups of individuals must comport with the following requirements:

      • The group detention order must be in writing;
      • The group detention order must state the bounds of the area subject to the order;
      • The person or persons executing the group detention order must inform by “reasonable means” all persons within the detention area of the contents of the order;
      • The person or persons executing the group detention order must post a copy of the order in a conspicuous place within the detention area; and
      • The person or persons executing the group detention order must give a copy of the detention order to the person in charge of the place where the group is detained.
        • If the place of detention is a residence, the copy of the order should be given to “any person of suitable age and discretion”.

      D.C. Official Code §§ 7-133(c), 134(a).

      D.C. Official Code § 7-133 does not expressly reference who is to serve a group detention order. Presumably, a group detention order must be served the same way as an individual detention order (i.e., by the MPD or a designated District employee).

      8.5.3 Duration of Group Detention Orders

      A group detention order expires within 24 hours of issuance. Therefore, prompt service of the order and return of service is necessary. A Superior Court judge may extend a group detention order if probable cause exists to believe that the group’s presence in the general population is likely to cause death or seriously impair the health of others. D.C. Official Code § 7-134(a).

      8.5.4 Challenging a Group Detention Order

      If a Superior Court judge extends a group detention order beyond 24 hours, the detained group may petition for a hearing on the detention. D.C. Official Code § 7-134(b).

      The hearing must take place “as soon as practical,” but no later than 10 days after the court receives the petition. At the hearing, the judge will determine whether:

      • The group is affected with a communicable disease; and,
      • If the group is affected with a communicable disease, whether the release of the group into the general population is likely to cause death or seriously impair the health of others.

      D.C. Official Code § 7-134(b).

      The right to object to quarantine on religious grounds is an individual and not a collective right under District law. D.C. Official Code § 7-141.

      See Appendix 3.0 for an isolation, quarantine, and treatment flowchart. 

      8.6 Medical Examination of Detained Individuals

      8.6.1 Authority of the Mayor

      The Mayor is required to designate medical personnel to medically examine each detained person to determine whether the individual is affected with a communicable disease. D.C. Official Code § 7-135(a). The Mayor has delegated this authority to DC Health.

      The results of the medical examination must comport with the following requirements: 

      • The diagnosis resulting from the medical examination must be in writing;
      • The examining physician must sign the diagnosis;
      • A copy of the signed diagnosis must be given to the detained individual;
      • A copy of the signed diagnosis must be given to the person in charge of the place where the individual is detained (if the place of detention is a residence, the copy of the order should be given to “any person of suitable age and discretion”); and
      • A copy of the signed diagnosis must be given to the DC Health Director.

      D.C. Official Code § 7-135.

      See section 10.4.4 B for information regarding when information may be disclosed under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) for public health activities.

      8.6.2 Authority of the Director of the Department of Health

      The DC Health Director may order an individual who has or is suspected of having a communicable disease or being a carrier of a communicable disease to submit to an examination to determine the existence of communicable disease. 22B DCMR § 210.4.

      The DC Health Director may also order an individual to submit specimens or permit the obtaining of authentic specimens of body secretions, excretions, body fluids, and discharges for laboratory examination. 22B DCMR § 210.5.

      8.6.3 Refusal to Submit to a Medical Examination

      If an individual refuses to submit to medical examination, the DC Health Director may issue a removal and detention order to compel a person who has or is suspected of having a communicable disease or who is or is suspected of being a carrier of communicable disease to submit to an examination to determine the existence of such communicable disease. 22B DCMR § 210.8(b).

      8.6.4 Diagnosis

      An individual who is found not to be affected with a communicable disease must be immediately discharged. D.C. Official Code § 7-135(a).

      If an individual is diagnosed as being affected with a communicable disease, the person may be detained for as long as necessary to protect the public health. D.C. Official Code § 7-135(b).

      8.6.5 Challenging a Detention Order Based Upon a Medical Diagnosis

      An individual detained because of a medical diagnosis may, at any time, petition the Superior Court for a discharge hearing. If the individual cannot afford counsel, counsel will be appointed. D.C. Official Code § 7-135(b).

      See Appendix 3.0 for a medical examination flowchart. 

      8.7 The Role of Physicians in Detentions

      If an individual is detained due to suspected communicable disease, a physician must examine such individual, with the diagnosis of the individual made in writing signed by the examining physician. D.C. Official Code § 7-135(a). In addition, the examining physician may be asked to sign an affidavit to support probable cause for detention or extension of a detention order.  D.C. Official Code § 7-134, D.C. Official Code § 7-137.

      Certain information sharing laws change during emergencies, such as some provisions under HIPAA and the Emergency Medical Treatment and Active Labor Act (EMTALA). See section 10.0 for further information regarding HIPAA and section 4.10 for further information regarding EMTALA.

      8.7.1 Care of Detained Individuals

      The management of any detained infected person must be in accordance with good medical and public health practice. 22B DCMR § 202.7. Meeting the requirements of Chapter 22-B2 of the DCMR and complying with the recommendations of the latest edition of “Control of Communicable Disease,” published by the American Public Health Association, is prima facie evidence of good medical and public health practice. 22B DCMR § 202.8.

      The physician or other person in charge of the detention must advise each adult infected person and each parent, guardian, or person in charge of an infected person of the applicable requirements of the isolation, quarantine, and other restriction of movement. 22B DCMR § 202.4.

      22B DCMR § 202.4 refers to “infected” persons and parents, guardians, or persons in charge of “infected” persons only and not to those suspected of being infected with a communicable disease. Since the remainder of the provision references quarantine, it is reasonable to assume that the requirements of 22B DCMR § 202.4 extend to those suspected of being infected as well.

      8.7.2 Duty of Detained Individuals

      An infected individual, contact or carrier or the parent, guardian, or person in charge of such individual, must comply with the instructions given by the physician or other person responsible for the control of a case of communicable disease. 22B DCMR § 210.9-210.10.

      8.7.3 Reporting Requirements

      The physician or person in charge of a detained individual must report the case to the DC Health Director within the time required and manner prescribed for reportable disease reporting. 22B DCMR § 202.1- 202.2

      Section 7.3 of the Manual provides a list of reportable disease and reporting requirements. Appendix 5.0 provides a chart of notifiable diseases and conditions developed by DC Health (last revised January 2017).

      In addition, the physician or person in charge of a detained individual must submit detailed instructions concerning the detention in his/her report to DC Health. Alternatively, the report may contain a statement that instructions were given in accordance with Chapter 22-B2 of the DCMR and the latest edition of “Control of Communicable Disease,” published by the American Public Health Association. 22B DCMR § 202.2

      The physician treating or caring for a person with a communicable disease must report immediately the name, address, and other relevant information to the DC Health Director if:

      • An individual violates his or her isolation or quarantine;
      • An individual is delinquent in treatment; or
      • There is a change of location of the patient.

      22B DCMR § 202.10.

      8.8 Use of Warrants in Detentions

      8.8.1 Authority

      The Superior Court may issue a warrant for the arrest of an individual who is believed, upon probable cause, to be affected with or a carrier of any communicable disease. D.C. Official Code § 7-137(a). The warrant is directed to the Chief of Police and can only be served by the Chief or an officer or member of the MPD. D.C. Official Code § 7-137(a),(c).

      8.8.2 Contents of the Warrant

      The warrant must be supported by an affidavit or affidavits setting forth the grounds for the application. D.C. Official Code § 7-137(b). The Superior Court is responsible for maintaining and keeping records of all warrants issued and returned. D.C. Official Code § 7-137(f).

      8.8.3 Powers if Admittance is Refused

      If refused admittance, an officer may break open any door or window of a house, any part of a house, or “anything therein” to execute the warrant. D.C. Official Code § 7-137(d).

      Although D.C. Official Code § 7-137(d) speaks specifically to “house,” presumably, an officer has the authority to open any door or window of any building or place to execute the warrant.

      8.8.4 Expiration of the Warrant

      The warrant must be returned to the court within 10 days or it becomes void. D.C. Official Code § 7-137(e).  

      8.8.5 Discharge

      If an individual is detained under the authority of a warrant, the individual may not be discharged until after being medically examined by a physician and determined not to be affected by a communicable disease. D.C. Official Code § 7-135.

      8.9 Inspection of Property for the Purpose of Detention or Investigation

      The authority to inspect property is not limited to detention. See sections 9.0 and 13.0 of the Manual for further instances where inspection of property is permitted.

      8.9.1 Authority of the Mayor

      The Mayor, without fee or hindrance, may enter, examine and inspect all vessels, premises, grounds, structures, buildings, and every part thereof in the District, for purposes of preventing the spread of communicable diseases. Owners, agents, representatives, lessees, and occupants of these places must give officers or employees of the Mayor free access. D.C. Official Code § 7-138.

      8.9.2 Authority of the DC Health Director

      The DC Health Director may enter and inspect any public or private property in the District to investigate a case or suspected case of a communicable disease. 22B DCMR § 210.2.

      8.10 Sanctions

      8.10.1 The Venue

      An individual may be prosecuted in the Superior Court for leaving detention without discharge, D.C. Official Code § 7-136, hindering access for  the inspection of property, D.C. Official Code § 7-138, or interfering with persons performing duties associated with detention or investigation, D.C. Official Code § 7-139. D.C. Official Code § 7-140.

      8.10.2 Conditions Imposed by the Court

      The Superior Court may impose conditions upon a person found guilty of violating D.C. Official Code § 7-136, D.C. Official Code § 7-138, or D.C. Official Code § 7-139.  Such conditions may include submission to medical examination, diagnosis, and treatment by proper public health and welfare authorities or by any licensed physician approved by the court, and such other terms and conditions as the court may deem best for the protection of the community and the punishment, control, and rehabilitation of the defendant.  As long as the defendant complies with such conditions to the satisfaction of the court, the court may suspend the imposition or execution of the sentence; at or before the expiration of such period, the court can choose to vacate or execute the sentence. D.C. Official Code § 7-140.

      8.10.3 Penalties

      Violation of one of these statutes is a misdemeanor punishable by a fine not exceeding $5,000, imprisonment for not more than 90 days, or both.  Violation of any rule and regulation issued under Title 7, chapter 1, subsection II is a misdemeanor punishable by a fine not exceeding $1,000, imprisonment for not more than 30 days, or both. D.C. Official Code § 7-140.

      8.11 Habeas Corpus

      In addition to, or as an alternative to, the hearing provided under D.C. Official Code § 7-135, a detained individual may file a habeas corpus petition to end his or her commitment. D.C. Official Code § 16-1901.

      D.C. Official Code § 7-135 states that counsel must be provided if the person detained cannot afford counsel. D.C. Official Code § 16-1901 is silent regarding the appointment of counsel.

      8.11.1 Parties

       A writ of habeas corpus may be brought by a detained individual or on behalf of a detained individual. D.C. Official Code § 16-1901(a).

      8.11.2 Venue

      Petitions for writs directed to federal officers and employees must be filed in the United States District Court for the District of Columbia. D.C. Official Code § 16-1901 (b). Petitions for writs directed to any other person must be filed in the Superior Court. D.C. Official Code § 16-1901(c).

      9.11.3 Proof

      The facts in the habeas corpus petition must make a prima facie case. D.C. Official Code § 16-1901(a); United States v. Tuck, 194 U.S. 161, 170 (1904); Bennett v. Ridley, 633 A.2d 824, 826 (D.C. 1993). It is sufficient to present an allegation and supporting facts that, if proven, would entitle the petitioner to relief. Price v. Johnston, 334 U.S. 266, 292 (1948); Bennett, 633 A.2d at 826.

  8. INSPECTIONS, SEIZURES, AND DESTRUCTION OF PROPERTY

    • 9.1 Summary

      The Mayor of the District of Columbia (the Mayor) has broad authority to enter private property for the purposes of examining the premises to prevent the spread of communicable disease as well as investigate habitability and sanitary conditions. Constitutional principles found in the Fourth, Fifth, and Fourteenth Amendments must be followed; however, when public health concerns are being addressed, particularly in emergency situations, the constitutional restraints are narrowed. The Mayor and the Mayor’s agents may take reasonable actions to investigate, examine, search, seize, abate, or destroy private property that may harm the public’s health, with just compensation concerns addressed after the need for such actions has ended. Preventing foodborne illness outbreaks through inspections and other regulatory actions is a significant public health function performed by the Department of Health (DC Health).

      9.2 Constitutional Considerations

      9.2.1 The Fourth Amendment: Searches and Seizures

      The Fourth Amendment limits the government’s ability to conduct searches and seizures.  A “search” occurs when government action infringes upon an expectation of privacy that society recognizes as reasonable.  United States v. Jacobson, 466 U.S. 109, 113 (1984).  A “seizure” of an individual occurs when government action meaningfully interferes with an individual’s freedom of movement. Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 616 (1989). The duration of the interference is not relevant. Id. A seizure of property occurs when government action meaningfully interferes with an individual’s possessory interest in that property. United States v. Jacobson, 466 U.S. at 113.

      Generally speaking, government searches and seizures conducted without consent are considered to be unreasonable unless authorized by a valid search warrant. Camara v. Municipal Court, 387 U.S. at 523, 528-529 (1967). The warrant must be based on probable cause and issued by a neutral magistrate. Maryland v. Pringle, 540 U.S. 366, 369 (2003).  Probable cause exists when there are reasonable grounds for the belief of guilt that are particularized with respect to the person, place, or items searched or seized.  Id.

      Courts determine whether a search is permissible “‘by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’” United States v. Knights, 534 U.S. 112, 118-119 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)); see also New Jersey v. T.L.O., 469 U.S. 325, 337 (1985). Thus, privacy expectations are balanced against governmental interests. 

      Administrative searches of private property, such as health and safety inspections, fall under the Fourth Amendment’s protection against unreasonable searches and seizures, as well as its requirement that warrants not be issued unless there is probable cause. Camara v. Municipal Court, 387 U.S. 534 (1967). Administrative warrants, however, may be based on a “modified probable cause” standard that is satisfied by a showing of specific evidence of an existing violation, or reasonable legislative or administrative standards for conducting an inspection of a particular individual or establishment. Marshall v. Barlow’s, Inc., 436 U.S. 307, 312 (1978); Michigan v. Tyler, 436 U.S. 499, 506 (1978). See, e.g., D.C. Official Code § 42-3131.02(b).

      There is also a “special needs exception” to the Fourth Amendment’s warrant requirement that may be applicable in the public health emergency context, where “special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.” Board of Education v. Earls, 536 U.S. 822, 829 (2002).  When applying this exception, courts must balance the individual’s privacy expectation against the government’s interests, with consideration of relevant context-specific factors.  These factors include:

      • The nature of the privacy interest affected by the government action;
      • The character of the government intrusion on the individual’s privacy interest; and
      • The nature and immediacy of concerns giving rise to government action and the efficacy of the action in addressing those concerns.  Board of Education v. Earls, 536 U.S. at 830-38.

      The government’s interest much be substantial if the individual’s privacy interest is high. A substantial government interest includes “exigent conditions” where the government seeks to discover “latent or hidden conditions” or to “prevent the development of hazardous conditions,” Board of Education v. Earls, 536 U.S. at 828-29, or strives to “protect or preserve life.” Mincey v. Arizona, 437 U.S. 385, 392-93 (1978). Facts supporting the seriousness of the threat and the need for immediate government action can assist in rationalizing a warrantless search or seizure in the context of communicable diseases and other health hazards.  Camara v. Municipal Court, 387 U.S. at 539.

      There is extensive case law related to the government’s ability to conduct searches and seizures under the Fourth Amendment and a full discussion is beyond the scope of this Manual.

      9.2.2 Fifth Amendment: Just Compensation

      Under the Fifth Amendment of the United States Constitution, “no person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The Fourteenth Amendment applies the Fifth Amendment’s Taking Clause to state action. Generally speaking, the government must pay just compensation for private property taken for public use pursuant to its eminent domain power. In order to trigger the just compensation requirement, there must first be a government “taking.” Where there is a legitimate exercise of the police power supported by a substantial government interest, the test is whether the owner has been deprived of property rights. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1051 (1992).

      However, when the taking is made to address a public health hazard related to the property, there is no deprivation of property rights because all property is held under the implied obligation that its use will not injure the community. Keystone Bituminous Coal Assoc. v. DeBenedictis, 480 U.S. 470, 491-92 (1987). Thus, as the United States Supreme Court has stated, “[s]ince no individual has a right to use his property so as to create a nuisance or otherwise harm others, the State has not taken anything when it asserts its power to enjoin the nuisance-like activity.” Id. at 491.

      Whether just compensation is required when property that is not itself a hazard is used in a public health emergency, such as when property is commandeered to use as a shelter for flood victims or a triage center, or when a business is required to alter or reduce its hours, is dependent upon the circumstances. Under District of Columbia (District) law, the Mayor of the District of Columbia (the Mayor) has broad powers over private property when an emergency has been declared. See section 4.0 of this Manual.

      There is extensive case law related to just compensation under the Fifth and Fourteenth Amendments and a full discussion is beyond the scope of this Manual.

      9.3 Public Nuisance

      A “public nuisance” is defined as an unreasonable interference with a right common to the general public. Restatement (Second), Torts, § 821B.  Public nuisances include those that interfere with public health, such as harboring diseased animals.  Id.

      When a public nuisance is identified, the Mayor may remove a nuisance existing in the public streets, roads, alleys, highways, and other places. D.C. Official Code § 5-101.03 (6).

      9.4 Sanitary Regulations

      9.4.1 Access to Prevent the Spread of Communicable Diseases

      The Mayor may enter, examine, and inspect all vessels, premises, grounds, structures, and buildings at no cost and with no interference in order to prevent the spread of communicable disease. D.C. Official Code § 7-138. The owner, his agent, or representative, any lessee or occupant, and any person having care or management of any vessel, premises, grounds, structure, and building must allow such access.  Non-compliance with this provision is a misdemeanor punishable by a fine up to $5,000, imprisonment for 90 days, or both. D.C. Official Code § 7-140.

      Under the Mayor’s authority to declare a public health emergency, the Mayor has the power to destroy or remove property that is contaminated by a matter or substance that makes it harmful to life and health, leading to imminent danger to persons or property. D.C. Official Code § 7-2304(b)(5). See section 4.2.1 E.

       An administrative search warrant may be issued by a District of Columbia Superior Court (Superior Court) judge authorizing the administrative inspection and search of any property or premises, private, commercial, or public, if there is probable cause to believe that: (1) the property is subject to one or more statutes relating to public health, safety, or welfare; (2) entry to such property has been denied to officials authorized to enforce the relevant statutes or regulations, unless special circumstances exist so that prior denial of entry is not required; and (3) reasonable grounds exist for the administrative search and inspection. Super. Ct. Civ. R. 204. See, e.g., D.C. Official Code § 42-3131.02(b).

      9.4.2 Inspection of Insanitary Buildings

      The Mayor or the Mayor’s designated agent is authorized to investigate and examine the habitability and sanitary condition of all buildings in the District in order to condemn those buildings that are in such insanitary condition as to endanger the health or lives of the occupants of such buildings or those living nearby.  The Mayor is also authorized to cause all buildings to be habitable and sanitary or to be demolished and removed.  D.C. Official Code § 6-901(a).

      Buildings that are under the exclusive jurisdiction of the United States cannot be investigated under this section.

      1. “Uninhabitable” means being in an unlivable condition due to deterioration and infestation, improper maintenance, decaying structures, insufficient light or ventilation, inadequate plumbing, defective electrical system, or general filthy conditions that may cause health and safety concerns for the public, or that is a fire hazard or nuisance. D.C. Official Code § 6-901(b).
         
      2. The Mayor and those acting under his/her authority may peaceably enter into and upon all lands and buildings in the District between the hours of 8:00 am and 5:00 pm for the purpose of inspecting the habitability and sanitary conditions. D.C. Official Code § 6-901(a).

      9.4.3 Unsafe Structures

      If any building or part of a building, staging, or other structure, or anything attached to or connected to any building or other structure is reported as unsafe from any cause, the Mayor has the authority to examine the structure or excavation. If the Mayor determines that the condition of the structure or excavation presents an imminent threat to public safety requiring that emergency measures be taken immediately, the Mayor may enter the premises without notice or delay to take action to secure the structure or excavation. D.C. Official Code § 6-801.

      Special rules apply to buildings and structures that are historic landmarks or that are located in historic districts, and consultation with the State Historic Preservation Officer is necessary before action can be taken under D.C. Official Code § 6-801 or D.C. Official Code § 6-901(a).  More information regarding historic preservation issues can be found at: https://planning.dc.gov/. See Mayor's Order 2011-120 (July 18, 2011).

      9.4.4 Condemnation of Buildings

      In the aftermath of disasters or emergencies, it may be necessary to condemn buildings that were damaged.  The Board of Condemnation of Insanitary Buildings, appointed by the Mayor, is responsible for issuing appropriate orders of condemnation that require correction of the conditions leading to condemnation or require the demolition of any buildings. D.C. Official Code § 6-902(a)(1).

      For example, in November 2016, Hurricane Matthew caused the condemnation of numerous buildings in North Carolina, including a school. In addition, at least 12 homes were condemned after an April 1, 2017 tornado touched down in Virginia Beach, Virginia.

      Condemnation procedures are outlined in D.C. Official Code § 6-903 with review of condemnation orders and appeals found at D.C. Official Code §§ 6-913, 6-914. However, in emergencies when many buildings need to be condemned, it may be necessary to waive these steps via a declaration of public emergency issued by the Mayor. See section 4.2 of the Manual.

      9.5 Food Establishment Inspections

      9.5.1 Food Establishment Defined

      A full listing of what constitutes a “food establishment” can be found at 25-A DCMR § 9901

      A food establishment does not include the following:

      • An establishment that offers only prepackaged foods that are not potentially hazardous due to the need for time or temperature control for safety;
      • A produce stand that only offers whole, uncut, fresh fruits and vegetables;
      • A food processing plant, including one that is located on the premises of a food establishment;
      • A kitchen in a private home where only food that is not potentially hazardous due to the need for time or temperature control for safety, is prepared for sale or served at any function such as a religious or charitable organization’s bake sale where the consumer is informed by a clearly visible placard that the food is prepared in a kitchen that is not subject to regulation or inspection by the District of Columbia Department of Health (DC Health);
      • An area where food that is prepared in a kitchen in a private home where only food that is not potentially hazardous due to the need for time or temperature control for safety, is sold or offered for human consumption;
      • A kitchen in a private home, including a child development home; a community residential home; or a bed and breakfast operation that prepares and offers food to guests if the home is owner occupied, the number of available guest bedrooms does not exceed three, breakfast is the only meal offered, the number of guests served does not exceed nine, and the consumer is informed by statements contained in published ads, mailed brochures, and placards posted at the registration area that the food is prepared in a kitchen that is not regulated and inspected by DC Health;
      • A private home that receives catering or home-delivered food;
      • A private club, or a church, which serves occasional meals at not more than 24 events during a 12-month period; and
      • The United States Senate’s and House of Representative’s restaurants.

      25-A DCMR § 9901.

      9.5.2 Right to Enter and Inspect a Food Establishment

      After DC Health representatives present official credentials and provide notice of the intent to conduct an inspection in accordance with the Food Code, the person in charge must allow access to DC Health during regular hours of operation to: (1) determine if the food establishment is in compliance with the Food Code; (2) examine and sample the food; (3) obtain information, and examine records related to the food purchased, received, or used by the food establishment. 25-A DCMR § 4402.1

      If access is denied to DC Health, the agency’s representative will inform the person in charge that: (1) access is required under the license obtained under the Food Code; (2) access is a condition of a continued food establishment license; (3) if access denied, an inspection order allowing access may be obtained; and (4) DC Health is making a final request for access.  25-A DCMR § 4402.2.

      While foodborne illness outbreaks are not likely to result in a declared emergency, they still have the potential to sicken large numbers of people, triggering the need for action from DC Health. Thus, the right to inspect food establishments may be crucial to protecting the public’s health.

      9.5.3 Imminent Health Hazard

      An “imminent health hazard,” is defined as a significant threat or danger to health that is considered to exist when there is sufficient evidence to show that a product, practice, circumstance, or event creates a situation that requires immediate correction or cessation of operations to prevent injury based on the number of potential injuries, and the nature, severity, and duration of the anticipated injury.  25-A DCMR § 9901.1. If an imminent health hazard is identified, a food establishment must immediately discontinue operations and notify DC Health. 25-A DCMR § 4408.

      Violations of the Food Code come with a range of penalties, including embargo orders; revocation or suspension of license; condemnation order; civil fines, fees, and penalties; and criminal fines and penalties (including imprisonment). 25-A DCMR Chapter 47. Judicial review in accordance with the District of Columbia Administrative Procedures Act is available to persons subject to a final order or decision by DC Health. 25-A DCMR § 4900.1.

      9.5.4 Prevention of Foodborne Disease Transmission by Food Employees

      DC Health will take the following actions when it has probable cause to believe that a food employee: (1) has transmitted a disease; (2) may be infected with a disease in a communicable form that is transmissible through food; (3) may be a carrier of an infectious agent that causes a disease that is transmissible through food; or (4) is affected with a boil, an infected wound, or acute respiratory infection:

      • Secure a confidential medical history of the food employee suspected of transmitting disease or making other investigations as deemed appropriate; and
      • Require appropriate medical examinations, including collection of specimens for laboratory analysis, of a suspected food employee.

      25-A DCMR § 4500.1.

      Based on the investigation findings, DC Health may issue an order to the suspected food employee taking one or more of the following control measures:

      • Restricting the food employee’s service to the food establishment;
      • Excluding the food employee from the food establishment; or
      • Closing the food establishment by summarily suspending a license to operate in accordance with the Food Code.

      25-A DCMR § 4501.1.

      The order or restriction or exclusion may be issued without prior warning, notice of a hearing, or a hearing if the order: (1) states the reasons for the restriction or exclusion that is ordered; (2) states the evidence that must be provided by the suspected food employee or licensee in order to demonstrate that the reasons for the restriction or exclusion are eliminated; (3) states that the suspected food employee or licensee may request a hearing by submitting a timely request as provided in the Food Code; and (4) provides the name and address of the DC Health representative to whom the hearing request may be made. 25-A DCMR 4502.1.

  9. PRIVACY AND CONFIDENTIALITY OF PATIENT RECORDS

    • 10.1 Summary

      The information contained in medical records and confidential reporting is highly protected under federal and District of Columbia (District) law, as well as by the United States Constitution. Moreover, health care providers must provide patients with access to their medical records within a reasonable time after a written request is made.

      However, both federal and District law provide exceptions that allow disclosure to public health officials without an individual’s consent. Generally speaking, these exceptions are limited to disclosures for statistical or public health purposes or when essential to safeguard the health and safety of others. Indeed, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) specifically allows disclosure of protected health information (PHI), without the patient’s written authorization, to public officials and organizations for reasons related to a public health emergency (e.g., disease reporting, public health surveillance).

      The District of Columbia Mental Health Information Act of 1978, D.C. Official Code § 7-1201.01 et seq., which regulates the privacy of mental health information, is a complex law that is beyond the scope of this Manual.

      10.2 Constitutional Right to Privacy

      There is no express right to privacy in the United States Constitution. The courts, however, have recognized a constitutional right to privacy, which includes an “individual interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589, 599-600 (1977). See, e.g., United States v. D.C., 44 F. Supp. 2d 53, 60–61 (D.C. 1999). When such a protected individual interest exists, a court will balance the individual’s privacy right against the governmental interest in disclosure.  Whalen, 429 U.S., at 602-604.

      When courts are required to opine on issues related to patient privacy and apply the constitutional balancing test to disclosures of information related to public health emergencies, as a general matter, the community’s interest in containing the public health emergency is likely to outweigh the individual’s privacy interest.

      10.3 District of Columbia Law

      10.3.1 Access to Patient Records Maintained by Health Care Providers

      1. Obligation to Provide Access to Medical Records – Health care providers are required to provide access, upon written request, to patient medical records within a reasonable time. The request may be made by the patient or a person authorized to have access to the patient’s record under a health care power of attorney. D.C. Official Code § 3-1210.11(a).
         
      2. Time Within Which Medical Records Must be Provided – Physicians must provide, to a patient or the patient’s representative, a copy of the patient’s medical record within 30 days of the request from the patient or the patient’s representative for the records. 17 DCMR § 4612.2.
         
      3. Access to Medical Records in HIV/AIDS Cases – Any entity providing health or medical services must make medical records and histories available to the  Director of the Department of Health (DC Health Director) to facilitate an investigation into a report regarding an HIV infection, potential AIDS case, or pregnancy in an HIV-infected woman. 22B DCMR § 206.4.

      10.3.2 Use and Disclosure of Communicable Disease Reporting Information

      1. Use of Communicable Disease Reporting Information – The DC Health Director may use the records generated in relation to a case of a disease or medical condition reported under D.C. Official Code §§ 7-131 to -144 for statistical or public health purposes only. D.C. Official Code § 7-131(b)(1). See section 7.0 of the Manual for more information regarding communicable disease reporting.
         
      2. Disclosure of Identifying Information – Identifying information contained in the records generated in relation to a disease or medical condition reported under D.C. Official Code §§ 7-131 to -144 may be disclosed only when essential to safeguard the physical health of others. No person may disclose information from those records unless:
        • The person reported gives written permission prior to disclosure; or,
        • A court finds, using a clear and convincing evidence standard and after providing the person reported with an opportunity to contest the disclosure, that disclosure:
          • Is essential to safeguard the physical health of others; or,
          • Would provide evidence that relates to the guilt or innocence of an individual in a criminal prosecution.

      D.C. Official Code § 7-131(b)(1).

      1. Exceptions – The restrictions set forth above do not apply to the use and disclosure of identifying information pursuant to D.C. Official Code § 4-1301.01 to -1371.14 (child abuse and neglect, Family Division proceedings) or D.C. Official Code §§ 16-2301 to -2399 (delinquency, neglect, or need of supervision, Family Division proceedings). D.C. Official Code § 7-131(b)(2).
         
      2. Penalties for Violation –  Willfully disclosing, receiving, using, or permitting the use of information in violation of D.C. Official Code § 7-131(b) is a misdemeanor, punishable by a fine up to $5,000, imprisonment up to 90 days, or both. D.C. Official Code § 7-140.

      It is important to note that many additional laws and regulations govern privacy of health information related to specific diseases and persons, including but not limited to, venereal diseases and HIV. See 22B DCMR § 205.8,  206.5; see also D.C. Official Code § 7-1605 (Hepatitis B), 22B DCMR § 207.9, 209.5 (student health information).

      10.3.3 Use and Disclosure of Health and Human Services Information

      1. Definitions –  
        1. Health and human services information” means any information that relates to:
          • The past, present, or future physical or mental health of an individual or family;
          • The provision of health care or human services, including benefits or supports, to an individual or family; or
          • The past, present, or future payment for the provision of health care or human services to an individual or family.
        2. “Service provider” means an entity that provides health or human services to District of Columbia (District) residents pursuant to a contract, grant, or other similar agreement with an agency.
        3. “Use” means the sharing, employment, application, utilization, examination, or analysis of health and human services information.
        4. “Human services” means programs, assistance, supports or benefits of any kind to improve quality of life or to meet the social, physical health, housing, and mental health needs of an individual.
        5. “Individually identifiable information” has the same meaning as it does under the Health Insurance Portability and Accountability Act of 1996.

      D.C. Official Code § 7-241.

      1. Use and Disclosure of Health and Human Services Information –  Without prior consent from the identified individual to whom the information pertains, an agency or service provider may use and shall disclose to another agency or service provider health and human services information referencing or relating to the identified individual for certain purposes, such as establishing eligibility for benefits, coordinating treatment, and performing examinations and inspections. D.C. Official Code § 7-242(a).
         
      2. Accordance with the Health Insurance Portability and Accountability ActAny uses or disclosures by an agency or service provider of individually identifiable health information must be in accordance with HIPAA. D.C. Official Code § 7-242(c).  See section 10.4 for more information regarding HIPAA.
         
      3. Minimum Necessary – The agency or service provider using or disclosing health and human services information must follow the “minimum necessary” principle described in HIPAA and disclose the minimum amount of information necessary to achieve the purpose of the use or disclosure. D.C. Official Code § 7-242(d).
         
      4. Written Request A service provider wishing to receive health and human services information must make a written request to an agency or service provider that describes the information sought and purpose for the information. D.C. Official Code § 7-244(a).
         
      5. Civil Penalties – If a person negligently uses or discloses health and human services information in violation of D.C. Official Code §§ 7-241 to -248, the person may be fined $500 per violation. D.C. Official Code § 7-245(a). If a person willfully uses or discloses health and human services information in violation of D.C. Official Code §§ 7-241 to -248, the person may be fined $1000 per violation. D.C. Official Code § 7-245(b).
         
      6. Criminal Penalties – If a person knowingly obtains, uses, or discloses health and human services information in violation of D.C. Official Code §§ 7-241 to -248 or any other District law, the person is guilty of a misdemeanor and may be fined up to $2,500, imprisoned up to 60 days, or both. However, if the offense was committed through deception or theft, the fine is increased to up to $5,000, imprisonment up to 180 days, or both. D.C. Official Code § 7-246

      10.3.4 Freedom of Information Act

      1. Right of Access to Public Records – Under the District’s Freedom of Information Act, D.C. Official Code §§ 2-531 to -540 (D.C. FOIA), it is the policy of the District that all persons are entitled to full and complete information about government affairs and the officials acts of public officials and employees of the District. Thus, any person has the right to inspect and copy any public record of a public body unless an exception exists that exempts certain information from disclosure.
         
      2. Personal Information – Information of a personal nature where public disclosure of such information would constitute a clear and unwarranted invasion of personal privacy is exempted from disclosure under D.C. FOIA. D.C. Official Code § 2-534(a)(2).
         
      3. Information Exempted from Disclosure by Another Statute – Certain types of information are protected from disclosure under District law. Such information will be exempt from disclosure under D.C. FOIA, provided the District law either:
      • Requires that the information be withheld from the public with no discretion regarding disclosure;
      • Establishes criteria for withholding; or
      • Refers to particular types of matters to be withheld.

      D.C. Official Code § 2-534(a)(6)

      1. Response Plans – District response plans, including public emergency response plans, and specific vulnerability assessments that are intended to prevent or mitigate acts of terrorism, are exempt from disclosure under D.C. FOIA. D.C. Official Code § 2-534(a)(10).

      During a communicable disease outbreak or other public health emergency, public agencies may receive requests for information related to the outbreak or emergency. Whether or not such information must be disclosed under D.C. FOIA depends on the type of information to be disclosed. Information may be exempt from disclosure because such disclosure would be an invasion of privacy. Communicable disease reporting information that identifies individuals is protected under D.C. Official Code § 7-131 and may not be disclosed under D.C. FOIA. However, non-identifying information is not protected and must be disclosed. See section 7.3 of the Manual for more details regarding use and disclosure of communicable disease reporting information.

      10.4 Federal Law

      10.4.1 Health Insurance Portability and Accountability Act of 1996

      The Health Insurance Portability and Accountability Act of 1996 (HIPAA) Pub. L. No. 104-191, 110 Stat. 1938 (1996) protects the privacy and security of protected health information (PHI) unless otherwise provided for in the implementing regulations.

      10.4.2 Health Information Technology for Economic and Clinical Health Act

      The Health Information Technology for Economic and Clinical Health Act (HITECH Act) Pub. L. No. 111-5, 123 Stat. 115 (2009) was enacted as part of the American Recovery and Reinvestment Act of 2009 to promote the adoption and meaningful use of health information technology. The HITECH Act also increased the scope of privacy and security protections available under HIPAA, broadened the potential legal liability for non-compliance, and provided for more enforcement for violations under HIPAA.

      10.4.3 Health Insurance Portability and Accountability Act Privacy Rule

      The Federal Standards for Privacy of Individually Identifiable Health Information (the Privacy Rule) was adopted in 2002 to implement HIPAA. The Privacy Rule, contained in 45 C.F.R. §§ 160.101-552, 164.102-106, and 164.500-534, provides that a covered entity and its business associates may not use or disclose PHI except as permitted or required by the Privacy Rule.   

      1. Covered Entities – The Privacy Rule applies to three types of entities: health plans, health care clearinghouses, and health care providers who transmit health information electronically in connection with certain transactions. These entities are referred to as “covered entities.” 45 C.F.R. §160.103.
         
      2. Business Associates A business associate is defined as a person or entity that creates, receives, maintains, or transmits PHI to perform certain functions or activities on behalf of a covered entity.  Under the Privacy Rule, covered entities are allowed to disclose PHI to business associates to create and receive PHI on behalf of the covered entity, subject to the terms of a business associate agreement between the parties.  The HITECH Act makes business associates directly liable for violations of the Privacy Rule.  45 C.F.R. § 160.103.
         
      3. Protected Health Information – PHI is defined as “individually identifiable health information” that is transmitted by electronic media, maintained in electronic media, or transmitted or maintained in any other form or media. 45 C.F.R. §160.103.

        Individually identifiable health information means health information that identifies the individual, or could reasonably be used to identify the individual. Id.

      Genetic information is considered to be “health information” under HIPAA and will be protected if it fits the definition of PHI.

      10.4.4 Disclosures Permitted by the Health Insurance Portability and Accountability Act

      1. Disclosures Required By Law – A covered entity may use or disclose PHI to the extent that such use or disclosure is required by law. In addition, the use or disclosure must comply with and be limited to the relevant requirements of the law. 45 C.F.R. §164.512(a).
         
      2. Disclosures for Public Health Activities A covered entity may disclose PHI for public health activities and purposes to:
        • A public health authority that is authorized by law to collect or receive such information for the purpose of preventing or controlling disease, injury, or disability, including:
          • The reporting of disease, injury, and death; and,
          • The conduct of public health surveillance, public health investigations, and public health interventions.
        • An official of a foreign government agency that is acting in collaboration with a public health authority, at the direction of a public health authority;
        • A public health authority or other appropriate government authority authorized by law to receive reports of child abuse or neglect;
        • A person subject to the jurisdiction of the Food and Drug Administration (FDA) with respect to an FDA-regulated product or activity for which that person has responsibility, for the purpose of activities related to the quality, safety, or effectiveness of such FDA-regulated product or activity;
        • A person who may have been exposed to a communicable disease or may otherwise be at risk of contracting or spreading a disease or condition, if the covered entity or public health authority is authorized by law to notify such person as necessary in the conduct of a public health intervention or investigation; and
        • An employer, about an individual who is a member of the workforce of the employer, under specific circumstances.

      45 C.F.R. §164.512(b)(1).

      1. Disclosures to Avert a Threat to Health and Safety – A covered entity may, consistent with applicable law and standards of ethical conduct, use or disclose PHI, if the covered entity, in good faith, believes the use or disclosure is:
        • Necessary to prevent or lessen a serious or imminent threat to the health or safety of a person or the public; and,
        • To a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.

      45 C.F.R. §164.512(j)(1)(i)(A)-(B).

      The HIPAA Privacy Rule specifically allows disclosure of PHI, without the patient’s written authorization, to public officials and organizations for reasons related to a public health emergency (e.g., disease reporting, public health surveillance).

      1. Disclosures for Judicial and Administrative Proceedings –  A covered entity may disclose PHI in connection with a judicial or administrative proceeding under the following circumstances:
        • In response to a court order or the order of an administrative tribunal, provided that only the PHI requested by the order is disclosed; or,
        • In response to a subpoena, discovery request, or other lawful process that is not accompanied by an order of a court or administrative tribunal if:
          • The covered entity receives satisfactory assurances from the party seeking the information that it has made reasonable efforts to ensure that the individual who is the subject of the PHI has been given notice of the request; or,
          • The covered entity receives satisfactory assurances from the party seeking the information that it has made reasonable efforts to secure a qualified protective order that:
            • Is in the form of an order from a court, administrative tribunal, or a stipulation by the parties to the proceeding;
            • Prohibits the parties from using or disclosing the PHI for any purpose other than the litigation or proceeding for which the PHI was requested;
            • Requires that the PHI and all copies be returned to the covered entity or destroyed at the end of the proceeding; or
            • The covered entity itself makes reasonable efforts to seek a protective order or to provide notice to the individual.

      45 C.F.R. § 164.512 (e)(1).

  10. SCOPE OF PRACTICE, VOLUNTEER HEALTH PRACTITIONERS, AND CRISIS STANDARDS OF CARE

    • 11.1 Summary

      In the event of a public health emergency, there may be disruptions in governmental operations and infrastructure as well as in the clinical health care system.  At the same time, there may be a surge of patients and individuals in the community who require services. It is critical that the District of Columbia (the District) take steps to address a medical surge.  Such steps may include modifying scopes of practice for health professionals, using volunteer health practitioners, and switching to crisis standards of care (CSC). Another way to address medical surge is through the use of mobile medical clinics that may be deployed in the areas of the District that are most in need.

      11.2 Scope of Practice

      Scope of practice refers to the range of services that licensed practitioners are authorized to perform.  In the District of Columbia (the District), scopes of practice are defined by the Health Occupations Boards. D.C. Official Code § 3-1201.01.  During disasters and emergencies, the Mayor may determine that it is necessary to modify the scope of practice for health professionals to meet increased demand for services. In that case, the Mayor may issue a Mayor’s Order  enlarging the permitted activities practitioners may perform or expanding the types of practitioners that are authorized to perform certain activities (e.g., a physician assistant may be permitted to provide certain services without the supervision of a physician).

      Mayor's Orders prepared before disasters or emergencies strike will ensure that the necessary providers’ scopes of practice are modified so that response to medical surge is adequate.

      11.3 Licensure Portability and Volunteer Health Practitioners

      The portability of health care practitioners’ licenses may become an issue during and after a disaster or emergency if there is a surge in the number of individuals who require medical care.  Licensure portability is addressed in the Emergency Management Assistance Compact (EMAC), which the District has signed.  D.C. Official Code § 7-2332. See section 4.9 of the Manual for more information regarding EMAC.

      The EMAC mechanism provides for interstate recognition of licenses held by professionals responding to disasters and emergencies.  It also addresses liability issues. However, EMAC’s provisions related to licensure and portability have been interpreted to apply to state government employees only, with no application to private sector workers.  See  Darby C. Allen & Susan Feigin Harris, Licensure Issues in the Event of a Disaster or Emergency. Am. Health Law. Ass’n Emergency Preparedness Toolkit (2012)

      The Uniform Emergency Volunteer Health Practitioners Act (UEVHPA) is model legislation developed in 2006 by the Uniform Law Commission in response to criticisms made after Hurricane Katrina regarding health care practitioner licensure under EMAC. The District adopted sections of the UEVHPA in 2010. D.C. Official Code §§  7-2361.01 to - 2361.12.

      While an emergency declaration is in effect, a volunteer health practitioner registered with a registration system that complies with D.C. Official Code § 7-2361.04 and who is licensed and in good standing in the state where the practitioner’s registration is based may practice in the District as if the practitioner was licensed in the District. D.C. Official Code § 7-2361.05(a).  However, a volunteer health practitioner may not provide services outside of the practitioner’s scope of practice, even if permissible under District law.  “Scope of practice” is defined as the extent of the authorization to provide health or veterinary services, including any conditions imposed, granted to the practitioner by the relevant licensing authority. D.C. Official Code § 7-2361.01(14).

      “Volunteer health practitioner” is defined as a health practitioner who provides health or veterinary services, with or without compensation for those services, including an employee of the federal government. Practitioners who receive compensation pursuant to a preexisting employment relationship with a host entity or affiliate that requires the practitioner to provide health services in the District are not considered volunteer health practitioners unless the practitioner is employed by a disaster relief organization while an emergency declaration is in effect. D.C. Official Code § 7-2361.01(17).

      Nothing in D.C. Official Code §§ 7-2361.01 to -2361.12 precludes a health facility from waiving or modifying its credentialing and privileging standards if an emergency declaration is in effect.  D.C. Official Code § 7-2361.06(a).

      11.3.1 Provision of Services during Declared Emergencies

      While an emergency declaration is in effect, the Mayor may issue an order that limits, restricts, or otherwise regulates:

      • The duration of practice by volunteer health practitioners;
      • The geographical areas in which volunteer health practitioners may practice;
      • The types of volunteer health practitioners who may practice; and
      • Any other matter necessary to coordinate effectively the provision of health or veterinary services during the emergency.

      D.C. Official Code § 7-2361.03(a).

      Limitations on liability of volunteer health practitioners who provide health or veterinary services under D.C. Official Code §§ 7-2361.01 to -2361.12 may be found at D.C. Official Code § 7-2361.10, 7-401(a). Liability limitations for other emergency personnel at D.C. Official Code § 7-401(d-1).

      11.4 Crisis Standards of Care

      The standard of care generally refers to the duty owed by health care practitioners to their patients.  Crisis standards of care (CSC), on the other hand, have been defined by the Institute of Medicine (IOM) as a “substantial change in usual healthcare operations and the level of care it is possible to deliver … justified by specific circumstances and … formally declared by a state government in recognition that crisis operations will be in effect for a sustained period.”  IOM (Institute of Medicine). 2009.  Guidance for Establishing Standards of Care for Use in Disaster Situations: A Letter Report.  Washington, DC: The National Academies Press.  A formal declaration that CSC are in operation enables specific legal/regulatory powers and protections for healthcare providers as they work to treat as many patients as possible with limited resources. 

      11.4.1 Institute of Medicine Guidance

      The IOM has issued various guidance documents related to crisis standards of care since 2009:

      Through these various guidance documents, the IOM viewed surge capacity and its accompanying issues across a continuum of care based on demand for health care services and the available resources. Moving along the continuum of care from conventional care to CSC enables health practitioners to treat more patients with limited resources.

      CSC does not authorize the provision of substandard care.  Instead, the standard of care becomes what a “reasonable” practitioner would do given the limited resources available.

      The switch to CSC may be prompted by different events, such as loss of essential services (i.e., electricity, water, parts of the supply chain) or disruption to health system infrastructure. Shortages of certain health care practitioners and/or shortages of medications and other supplies may also initiate the switch to CSC.

      There is no official mechanism for a shift to CSC under District law.  A public health emergency order issued by the Mayor under D.C. Official Code § 7-2304.01(a) would address provisions of law that would need to change in the event a shift to CSC is necessary.  Such action is taken on a case-by-case basis.

       

  11. MASS FATALITY INCIDENT AND MASS FATALITY MANAGEMENT

    • 12.1 Summary

      In the event of a public health emergency, there may be a surge in the number of deaths that requires management in terms of investigating, recovering, transporting, identifying, storing, tracking, and processing large numbers of fatalities in a short time period. Accordingly, licensure requirements for physicians, funeral directors, and first responders may need to be waived in order to facilitate this management.  Interstate transportation may be required to dispose of hazardous material, which is governed by federal regulations.  Mutual aid agreements with neighboring jurisdictions may be necessary for cremation or mass burial if there is a large number of fatalities.

      12.2 Definitions

      12.2.1 Mass Fatality Incident 

      The Draft Districtwide All-Hazards Mass Fatality Management Plan (Draft MFM Plan) defines “Mass Fatality Incident” as any situation resulting in more human remains to be investigated, recovered and examined than can be managed using local resources, or any situation that results in the inability to process human remains under routine conditions.

      12.2.2 Mass Fatality Management 

      The Draft MFM Plan defines “Mass Fatality Management” as the ability to train and cooperate with governmental and nongovernmental agencies, organizations, associations, and other entities to ensure that in mass fatality incidents the proper recovery, handling, identification, transportation, tracking, storage, certification of cause and manner of death is utilized; and to facilitate access to mental and behavioral health services to family members, responders, and survivors.

      12.3 Mass Fatality Incident Management

      The Draft MFM Plan sets forth procedures for responding to a fatality surge (a surge in the number of deaths).  Specifically, the Draft MFM Plan provides for investigating, recovering, transporting, storing, tracking, and processing large numbers of decedents over a relatively short period of time.

      The District of Columbia Office of the Chief Medical Examiner (OCME) assumes primary responsibility for fatality management operations under the Draft MFM Plan, focusing on accurate decedent identification and return of decedents to the legal next-of-kin.

      OCME’s fatality management role includes the following core responsibilities:

      • Perform an incident-specific scene assessment;
      • Conduct a full medicolegal investigation to establish cause and manner of death;
      • Perform decedent recovery;
      • Secure remains and associated personal effects (PE);
      • Gather, secure, document, track, and preserve evidence;
      • Arrange for temporary decedent storage and transport;
      • Track decedents;
      • Manage the establishment of field mortuary operations necessary to support the investigation and identification of decedents, if applicable;
      • Oversee the Disaster Victim Identification (DVI) process;
      • Preserve human remains, if applicable;
      • Arrange for temporary interment or long-term disposition, if applicable; and
      • Support family management efforts.

      12.3.1 Conditions that Warrant Activation of the Draft Mass Fatality Management Plan

      The following conditions warrant activation of the Draft MFM Plan:

      • Issuance of public health emergency executive order by the Mayor of the Department of Health (the Mayor). D.C. Official Code § 7-2304.01. See section 4.2.2;
      • Any confirmed incident associated with five (5) or more fatalities tied to a single event;
      • Multiple, simultaneous incidents that produce any number of fatalities, and have the potential to be man-made, coordinated or terror-related, such as complex coordinated attacks (CCAs);
      • Any confirmed incident with the potential for mass fatalities  (5 or more deaths), such as a mass casualty incident;
      • Anticipated events such as:
        • Impending or predicted natural disasters; and
        • National security special events (NSSEs), or any large gatherings greater than 100,000 persons. (See section 4.5.1 of the Manual).
      • Credible knowledge of a perceived threat, at the discretion of the OCME Director or appointed designee(s), District of Columbia Department of Health (DC Health), District of Columbia Fire and Emergency Medical Services Department (FEMS), Metro Police Department (MPD), The District of Columbia Homeland Security and Emergency Management Agency (HSEMA), or the Emergency Operations Center (EOC); and
      • Unique fatality scenarios that would exceed routine OCME operational capacity such as:
        • Greater than 20 fatalities in a single day;
        • Pandemic-related or highly infectious deaths;
        • Remains contaminated with any hazardous material or exposed to  a Chemical, Biological, Radioactive, Nuclear, or Explosive (CBRNE) agent;
        • A single event that produces multiple highly fragmented remains; and
        • Protracted and/or complex fatality scenarios (i.e. building collapse, water recovery).

      12.4 Decedent Information

      OCME plays a critical role in victim identification in a mass fatality incident.  Victim identification aids the determination of the cause and manner of death, informs the death investigation, and ultimately helps to reunite the decedent with loved ones.  In instances of a mass fatality, normal identification protocols via visual identification may not be possible or desirable and alternate means of identification may be used, including scientific (e.g. fingerprints, radiograph comparison, DNA); and circumstantial (based upon circumstantial evidence).  Victim identification will also inform the order of priority for the release of remains to control decedent disposition and any District of Columbia (District) notification obligations in the event of mandatory mass burial, mass cremation, or other executive directive that affects the decedent’s disposition.

      The identification of the victim may also impact the court when determining standing, resolving disputes, and any civil considerations resulting from the District’s action that affects the decedent’s remains and next-of-kin rights.

      12.5 Professional Licensure

      The OCME staff includes board certified forensic pathologists who determine cause and manner of death.  In instances of a mass fatality incident, the OCME may utilize non-staff physicians to assist with these functions. D.C. Official Code § 5-1410

      There may be a need to waive licensure requirements for the following individuals:

      • Physicians;
      • Funeral directors; and
      • First responders.

      See section 11.2 of the Manual.

      12.6 Decedent Disposition

      The District does have locations to accommodate burial of human remains; however, the space limitations and locations may not be suited for mass burial or infected or contagious remains. The District currently has no crematorium. All human remains to be cremated must be transported out of state. 

      In the event decedent remains require direct transport outside of the District (e.g., in cases of Ebola or other infectious diseases), or for other purposes, licensure requirements for non-District licensed funeral directors may need to be modified or waived to effectuate out-of-state transfers of human remains. See section 11.2 of the Manual. 

      12.6.1 Special Rules Regarding Decedent Disposition When Death Caused by Certain Diseases

      Special rules apply in cases of death from the following diseases:

      • Cholera;
      • Anthrax;
      • Diphtheria;
      • Plague (bubonic and pneumonic);
      • Smallpox; or
      • Louse-borne typhus fever.

      When death is caused by one of the diseases listed above, the physician issuing the certificate of death must give immediate notice by telephone of the death to the Director of the Department of Health (DC Health Director). 22B DCMR § 214.1.  See section 7.5 of the Manual. Certain steps must be taken with the body of a person who died from one of the diseases listed above.  In addition, the body of a person who died from one of the diseases listed above may not be moved from the place of death except after issuance of a permit by the DC Health Director. 22B DCMR §214.2.

      A public funeral service for a person who has died of any of the diseases listed above must not be held in the presence of the body unless the body has been embalmed and placed in a sealed casket. Quarantined persons may not attend a public funeral service; but may, at the discretion of the DC Health Director, be taken to places of burial provided they do not mingle with the non-quarantined persons present.  22B DCMR § 214.6.

      During the West African Ebola epidemic in 2014, DC Health determined that, in the event of a death in the District in which Ebola may be the cause or suspected cause, the OCME would assume all control and management of disposition of the involved human remains.  It was decided that all human remains of Ebola patients would be promptly cremated.  All funeral directors were notified of this protocol.  A plan was adopted, the Interim Draft Concept of Operations for the Management of Decedents with Confirmed or Suspected Viral Hemorrhagic Fever (the ConOps Plan), that was consistent with the CDC Guidance for Safe Handling of Human Remains of Ebola Patients in U.S. Hospitals and Mortuaries.

      12.7 Interstate Transportation

      An infectious substance is regulated as a hazardous material under the United States Department of Transportation's (U.S. DOT) Hazardous Materials Regulations (HMR). The HMR apply to any material U.S. DOT determines is capable of posing an unreasonable risk to health, safety, and property when transported in commerce. An infectious substance must conform to all applicable HMR requirements when being transported.

      Solid materials contaminated with the Ebola virus are classified as Category A infectious substances according to the HMR. Category A infectious substances, including the Ebola virus, may only be transported in two scenarios:

      • In full compliance with classification and packaging requirements of the HMR; or,
      • Under the terms of a special permit. 

      The U.S. DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a safety advisory that provides an inventory of all relevant information PHMSA has issued for the reference of state and local governments in dealing with the Ebola Virus contaminated waste.

      The U.S. DOT has additional information regarding transporting infectious substances available at https://phmsa.dot.gov/hazmat/packaging-of-ebola-contaminated-waste.

      Thomas Duncan died of Ebola in Texas in 2014.  Six truckloads of Ebola-contaminated waste were removed from his apartment after his death. The U.S. DOT granted an emergency special permit authorizing waste removal company to transport this Ebola-contaminated waste for autoclaving or incineration.  The waste was incinerated in Texas, with the ashes to be transported out-of-state to Louisiana to be buried in a landfill. Louisiana took legal action to prevent the ashes from entering the state and was ultimately successful in barring the ashes from being buried in a Louisiana landfill.

      12.8 Mutual Aid Agreements

      There may be consideration for the District to enter into Mutual Aid Agreements with neighboring jurisdictions in the National Capital Region for cremation and/or mass burial in the event of a mass fatality incident.  These agreements are authorized through EMAC and various Mayor’s Orders, including:

      During the West African Ebola epidemic in 2014, Maryland’s Board of Morticians and Funeral Directors and Maryland’s Secretary of Health and Mental Hygiene’s Office agreed that it was acceptable to transport any infected decedents from the District to Maryland for the purposes of cremation consistent with the protocols set forth in the ConOps plan.

       

  12. ANIMAL CARE AND CONTROL

    • 13.1 Summary

      Vectors are animals or organisms like mosquitoes or ticks that are capable of transmitting disease to humans or animals. District of Columbia (District) law prohibits certain activities and conditions that increase the risk of vector-borne disease, thereby creating a public health nuisance. The Mayor of the District of Columbia (the Mayor) has authority to order the abatement of such nuisance activities.

      There are many issues related to the care and control of animals during disasters and emergencies. Federal and District law provide protection for pets and service animals during disasters and emergencies. The District has created an emergency preparedness plan for the protection, sheltering, and evacuation of domestic animals following passage of the federal Pets Evacuation and Transportation Standards Act.  The Americans with Disabilities Act’s broad anti-discrimination provisions extend to emergency preparedness, response, and recovery efforts.

      13.2 Vector-Borne Infectious Disease Control

      13.2.1 Definitions

      1. A “vector” is any animal or organism capable of transmitting the causative agent of human or animal disease or capable of producing human discomfort or injury, including mosquitoes, flies, mites, ticks, or other arthropods. D.C. Official Code § 8-2131.01(6).
      2. A “public health nuisance” is any property, including water, that supports the development, attraction, or harborage of vectors; any property that has a vessel, container, or other structure holding water that provides a breeding place for vectors; or any activity that supports the development, attraction, or harborage of vectors, or that facilitates the introduction or spread of vectors. D.C. Official Code § 8-2131.01(5).
      3. “Abate” means to eliminate a public health nuisance, or to reduce the degree or intensity of a public health nuisance. D.C. Official Code § 8-2131.01(1).

      13.2.2 Prohibited Activities – Tires

      As tires play a prominent role in the breeding and harboring of vectors such as mosquitoes, certain activities are prohibited in relation to tires.  The following are prohibited:

      • Causing or allowing the open dumping of tires;
      • Causing or allowing the open burning of tires;
      • Causing or allowing the storing of any tire unless the owner or operator of the property where the tire is stored takes measures to store the tire indoors or, if the tire is stored outdoors, to prevent the accumulation of water in the tire by covering or altering the tire; and
      • Causing or allowing the tire to be used in playground equipment unless the tire is altered to prevent the accumulation of water.

      D.C. Official Code § 8-2131.02(a).

      13.2.3 Prohibited Activities – Standing Water

      Standing water leads to the breeding and harboring of vectors, as vectors, such as mosquitoes, may use natural and artificial water-holding containers (e.g., tree holes, used tires, plastic containers, clogged gutters) to lay their eggs.

      For example, female mosquitoes prefer to lay eggs in water that collects or is stored in manmade containers. After hatching, larvae grow and develop into pupae and subsequently into a terrestrial, flying adult mosquito.

      Therefore, the following measures must be taken in relation to standing water to prevent such breeding and harboring:

      • Performing routine checks around property to ensure there is no standing water collected;

      • Draining or replacing water frequently enough to prevent vector breeding;

      • Keeping swimming pools and other open waters used for bathing or swimming sufficiently chlorinated to prevent vector larvae from hatching;

      • Covering water-bearing containers with covers or fine netting to prevent access by vectors; or

      • Applying larvicide to the standing water.

      D.C. Official Code § 8-2131.02(b).

      13.2.4 Mayoral Authority to Inspect

      The Mayor of the District of Columbia (the Mayor) may inspect occupied or vacant property to investigate an allegation of a public health nuisance.  Such allegation may come from the Mayor’s own information or observation, or the information or observation of another individual. The inspection must be conducted during reasonable times and in a reasonable manner. If the owner or occupant of the property denies access for such inspection, the Mayor may apply to a court of competent jurisdiction for a search warrant.  If the Mayor determines that a public health nuisance exists after the inspection, the Mayor may order the owner or occupant to take appropriate action to abate the nuisance in accordance with D.C. Official Code § 8-2131.05.

      If vectors are present in their developmental stage on a property, or in a vessel, container, or other structure on a property, such presence constitutes prima facie evidence of a public health nuisance. D.C. Official Code § 8-2131.04.

      13.2.5 Abatement of a Public Health Nuisance

      Upon determination by the Mayor that a public health nuisance exists on a property, the Mayor will issue a notice of violation to the person alleged to have created the public health nuisance or the owner or occupant of the property. Upon receipt of such notice, the person responsible for the property must abate the public health nuisance within the time specified in the notice.  The Mayor may grant additional time to abate upon request from the responsible party and a good faith showing that the person has made an effort to abate the public health nuisance and that a longer time for abatement is necessary. D.C. Official Code § 8-2131.05.

      13.2.6 Notice of Existence of a Public Health Nuisance

      Notice to the owner, occupant, or any other responsible person on the premises may be served in two ways: (1) delivery by prepaid mail, return receipt requested to the owner or occupant of the property; or (2) public posting of the notice in a conspicuous place on the property where the public health nuisance exists. The notice must contain the following:

      • The location, date, and time that the public health nuisance took place or that the Mayor investigated the public health nuisance;
      • The nature of the public health nuisance;
      • The time, no later than 10 days, within which the public health nuisance must be abated;
      • The specific corrective actions the owner or occupant will take to abate the public health nuisance with a referral to the Department of Health's (DC Health) Health Regulation and Licensing Administration (HRLA) to provide assistance with the abatement efforts of the public health nuisance; and
      • A statement that failure to abate the public health nuisance constitutes a violation of D.C. Official Code § 8-2131 et seq.  

      D.C. Official Code § 8-2131.05(a).

      13.2.7 Corrective Actions by Mayor to Abate a Public Health Nuisance

      Subject to availability of funds, the Mayor may take action to abate certain health hazards that are the result of the development, attraction, or harborage of vectors.  Such action may include cleanup, abatement, and preventive measures; however, the District of Columbia (the District) must take action to protect human health, if one or more of the following conditions exist:

      • The action is required to protect public space;
      • No person can be found who is the owner of the property in question, and is capable of implementing the required corrective action within 30 days of the posting of the notice on the property, or a shorter period if the Mayor determines that action must be taken to protect human health;
      • A situation exists that requires immediate action by the Mayor to protect human health; and/or
      • The responsible party has failed or refused to comply within 30 days of a Mayoral order for compliance.

      D.C. Official Code § 8-2131.06(a).

      13.2.8 Costs Recoverable for Corrective or Enforcement Action

      The District may recover costs incurred when taking corrective or enforcement action to abate development, attraction, and harborage of vectors from all parties found to be liable by the Mayor.  Such liability is joint and several.  In addition, the Mayor may assess any reasonable costs for correcting the condition and any related expenses as a tax against the property, carry the tax on the regular tax rolls, and collect the tax in the same manner as real estate taxes are collected.  D.C. Official Code § 8-2131.06(b).

      13.2.9 Penalties and Adjudication

      A violation of the vector-borne infectious disease control laws, D.C. Official Code § 8-2131.01 et seq., constitutes a civil infraction under the Department of Consumer and Regulatory Affairs Civil Infractions Act. Civil fines, penalties, and fees can be imposed pursuant to the Civil Infractions Act. Adjudication of any infraction is pursuant the Act as well.  See Bernstein Management v. DC Rental Housing Commission, 92 A.2d 190 (D.C. 2008).

      13.3 Rodent Abatement

      13.3.1 Definitions

      1. “Rodent abatement” means removing rodent infestations by eliminating or rodent-proofing food sources, eliminating rodent nesting areas, rodent-proofing building entry ways, and poisoning or trapping existing rodent populations. D.C. Official Code § 8-2103.01.
      2. “Harborage” means rodent infestation or providing food or nesting areas for rodents that can be identified by the presence of burrows, droppings, tracks, runways, gnawing, urine stains, odor, live or dead rodents, nests, or rodent-gnawed food. D.C. Official Code § 8-2103.01.

      13.3.2 Rodent Harborage Prohibited

      It is unlawful for any person to cause or permit the accumulation of debris on public or private property or cause or permit weeds or grass to grow to a height of more than 8 inches.  Rodent abatement must occur within 14 days of notice of a violation from the Mayor. If abatement does not occur, the person who fails to abate the condition is liable for arrest and penalties, including a misdemeanor conviction and a fine for each offense not to exceed $10,000, or imprisonment not to exceed 90 days, or both, in the court’s discretion. D.C. Official Code § 8-2103.05.

      13.4 Annual Mosquito Control and Abatement Plan

      Annually, the DC Health must develop and submit to the Council of the District of Columbia (D.C. Council) a mosquito-abatement plan, delineated by ward, for the following fiscal year to prevent and abate the infestation of mosquitoes.  Such plan, at a minimum, must include:

      • A determination of which wards are in greatest need of mosquito abatement;

      • A plan of action to eliminate the habitats of immature mosquitoes and control immature and adult mosquitoes;

      • A plan to ensure that eradication measures do not injure pets or wildlife; and

      • Delineation of the costs associated with the entire plan.

      D.C. Official Code § 8-2141.01.

      13.5 Rabies and Animal Bites

      If the Director of the Department of Health (DC Health Director) has reason to believe that a dog or other animal: (1) is rabid, (2) has been bitten by a suspected rabid animal, or (3) has bitten a person or exposed a person to rabies, the DC Health Director has the authority to take action that could lead to the possible quarantine or humane euthanasia of the affected animal, as well as order rabies post-exposure prophylaxis for the affected person.  22-B DCMR § 203.

      13.6 Pets and Service Animals during Disasters and Emergencies

      13.6.1 Federal Pets Evacuation and Transportation Standards Act

      The federal Pets Evacuation and Transportation Standards Act (PETS Act) was passed in 2006 in the wake of the devastation wrought by Hurricane Katrina. It is estimated that 250,000 animals may have died in the aftermath of Katrina.  Moreover, Katrina demonstrated that many pet owners and individuals with service animals would refuse evacuation orders or would take action to rescue animals they were forced to abandon.  The PETS Act directs the Federal Emergency Management Agency (FEMA) administrator to develop emergency preparedness plans, as well as ensure that state and local emergency plans account for the needs of individuals with household pets and service animals in the planning, response, and recovery periods.  The FEMA administrator may make financial contributions for animal emergency preparedness purposes, including emergency shelter facilities to accommodate individuals with household pets and service animals. Moreover, FEMA is authorized to provide rescue, care, shelter, and essential needs for individuals with household pets and service animals, and to the household pets and service animals themselves following a major disaster or emergency. 42 U.S.C. § 5196.

      FEMA has defined “household pet” as a domesticated animal, such as a dog, cat, bird, rabbit, rodent, or turtle that is traditionally kept in the home for pleasure rather than commercial purposes, that can travel in commercial carriers and be housed in temporary facilities. Household pets do not include reptiles (except turtles), amphibians, fish, insects/arachnids, farm animals (including horses), and animals kept for racing purposes.  FEMA 2017 Public Assistance Program and Policy Guide

      FEMA defines “service animal” as any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.  Id.

      13.6.2 District of Columbia Animal Emergency Preparedness Plan

      In response to the PETS Act, the D.C. Council passed a law that required the Mayor to establish an emergency preparedness plan for the protection, sheltering, and evacuation of domestic and service animals during and following a major disaster or emergency within 90 days of December 5, 2008.  D.C. Official Code § 8-1861.01.

      13.6.3 Americans with Disabilities Act

      The Americans with Disabilities Act (ADA) provides broad nondiscrimination protection for individuals with disabilities in public services, employment, and public accommodations and services operated by private entities. 42 U.S.C. § 12101 et seq. Although the ADA does not include specific provisions related to disasters and emergencies, its far-reaching nondiscrimination provisions have been extended to emergency preparedness, response, and recovery efforts. Thus, state and local governments are required to comply with Title II of the ADA in the emergency-and-disaster-related programs, services, and activities they provide. 42 U.S.C. § 12132.  Under Title II of the ADA, emergency programs, services, activities, and facilities must be accessible to people with disabilities. 28 C.F.R. §§ 35.149-35.151, and may not use eligibility criteria that screen out people with disabilities. 28 C.F.R. § 35.130(b)(8).

      The United States Department of Justice has several resources related to the ADA and emergency management: Emergency Management Under Title II of the ADA; The ADA and Emergency Shelters: Access for All in Emergencies and Disasters; and ADA Checklist for Emergency Shelters.

      Accordingly, under the ADA, individuals with service animals must not be discriminated against with regard to emergency shelters.  Such individuals may not be asked to remove the service animal from shelter premises unless the animal is out of control and poses a direct threat to others. A “service animal” is defined in Title II of the ADA as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The tasks performed may vary and may include pulling a wheelchair, retrieving dropped items, alerting a person to a sound, reminding a person to take medication, or pressing an elevator button. 28 C.F.R. § 35.104. Other species of animals besides dogs, regardless of training, are not considered “service animals” under Title II of the ADA. In addition, providing emotional support, well-being, comfort, or companionship, are not tasks covered by Title II of the ADA.

      Several successful lawsuits have been filed by disability rights advocates regarding the failure of jurisdictions to plan for the needs of individuals with disabilities when preparing for emergencies and disasters, thereby violating the ADA.  See Brooklyn Ctr. for Independence of the Disabled et al. v. Bloomberg; Communities Actively Living Indep. and Free et al. v. City of Los Angeles. A case against the District is currently pending in the United States District Court for the District of Columbia.  United Spinal Ass’n. et al. v. District of Columbia, et al. (1:14-CV-01528 (CKK)).

      The United States Department of Justice has resources related to the ADA and emergency management:

      There is extensive case law related to liability under the ADA and a full discussion is beyond the scope of this Manual.

       

Appendices

  1. FLOWCHARTS

    • Isolation, Quarantine, and Treatment Flowchart

      Probable cause exists that a person or group of people is affected with a communicable disease or carriers of a communicable disease likely to cause death or seriously impair the health of others
      DOH Director authorized to issue order directing removal of person for isolation, quarantine, or treatment that specifies location of detention (if for a group, order must specify bounds of area subject to order)
      Order executed by MPD or designated DC employee, who provides the affected person(s) with notice of the order’s contents and a copy of the order. This notice should include information regarding the right to petition for a hearing in DC Superior Court
      Order expires 24 hours after issuance and individual is released
      Order continued by Superior Court judge if probable cause found that individual is likely to cause death or serious harm to others
      Detained individual can petition for a discharge hearing

      Medical Examination Flowchart

      Individual is detained under DC Code § 7-131 et seq. or 22-B DCMR § 210.8
      DOH orders examination by appropriate medical personnel or submission of specimens by individual to determine whether the individual is affected with a communicable disease
      If individual refuses to submit to medical examination, DOH Director may issue a Removal and Detention Order
      Exam diagnosis must be signed in writing by examining physician and copy given to detained person and person in charge of location where individual is detained
      Individual must be immediately discharged if found not to be affected by communicable disease
      Individual can be detained for as long as necessary to protect public health if found to be affected by communicable disease
      Individual can petition Superior Court at any time for a discharge hearing
      Counsel will be appointed if individual cannot afford counsel

      Declaration of Public Emergency Flowchart

      Mayor Issues Emergency Executive Order Declaring Public Emergency Standard: reasonable apprehension of existence of public emergency and need for immediate preservation of public peace, health, safety, and welfare
      Contents of Order 1) Nature, extent and severity of emergency 2) Measures needed to relieve emergency 3) Specific requirements of order and to whom the order applies 4) Duration of order
      Publication of Order Order must be published in DC Register, two general circulation daily newspapers, and posted in public places as soon as practicable given the nature of the emergency
      Powers Given To Mayor • Expend funds • Implement response plans without regarding to normal procedures • Evacuate people •Disconnect utilities •Destroy or remove property •Control and allocate resources •Institute curfews •Alter business hours •Expand governmental units •Procure supplies and personnel •Request federal disaster assistance •Prevent harmful consequences of disaster •Detain persons affected with a communicable disease if probable cause that they are a danger to public health
      Duration and Extension of Order Lasts 15 days and may be extended for 15 additional days upon approval of DC Council

      Declaration of Public Health Emergency Flowchart

      Mayor Issues Emergency Executive Order Declaring Public Health Emergency AFTER Declaration of a Public Emergency Standard: Reasonable cause to believe there is imminent hazard or actual occurrence of large number of deaths, large number of serious or long-term health disabilities, widespread exposure to infectious or toxic agent, use or detonation of a weapon of mass destruction, other emergency events that create an acute and immediate need for volunteer health practitioners
      Contents of Order 1) Existence, nature, extent and severity of public health emergency 2) Geographic area subject to declaration 3) Conditions that brought about public health emergency, if known 4) Measures needed to relieve public health emergency 5) Specific requirements of order and to whom the order applies 6) Duration of order
      Publication of Order Order must be published in DC Register, two general circulation daily newspapers, and posted in public places as soon as practicable given the nature of the public health emergency
      Powers Given To Mayor Mayor may appoint health care providers who become temporary agents of the District for duration of public health emergency and perform without compensation, without liability (except gross negligence), and without regard to licensure, permits and fees otherwise required under District law
      Duration and Extension of Order Lasts 15 days and may be extended for 15 additional days upon approval of DC Council