Table of Contents

  1. ROLES AND RESPONSIBILITIES

    • 2.1 Summary

      Protecting the health and safety of the public in 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 (Mayor) has executive power over the District and is the chief executive officer of the District government. The Mayor is responsible for properly executing 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 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 DC 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 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 and private property during communicable disease investigations.

      DC Health, https://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 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 (ESF) #8 – Public Health and Medical Services – under the District Response Plan (DRP). 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 Framework. ESF #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.

      DC Health, Health Emergency Preparedness and Response Administration, https://dchealth.dc.gov/page/health-emergency-preparedness-and-response-administration.

      The DRP is updated every five years. The District is in the process of updating the DRP as of Fall 2019.

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

      The District of Columbia ESF #8 DC 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 governmental 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, https://www.dccourts.gov/

  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’s 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 United States Food and Drug Administration (FDA), United States Department of Agriculture (USDA), and the United States 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 U.S. 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 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 restrict 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 United States 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. DECLARATION OF EMERGENCIES

    • 4.1 Summary

      At the federal level, the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (Stafford Act), the National Emergencies Act (NEA), and the Public Health Service Act allow the federal government to declare emergencies under certain circumstances. Under District law, 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, the Mayor has many of the powers reserved for Governors of states, including the authority 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 and are precursors 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, such as 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).

      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 health preparedness plan, 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 jurisdictions in certain situations and when specified requirements have been met.

      4.2 Federal Declarations

      4.2.1    The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988

      The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (the Stafford Act) is the broadest and most well-known of the federal government’s emergency programs. 42 U.S. Code § 5121 to 5207. The Federal Emergency Management Agency (FEMA) coordinates administration of disaster relief resources and assistance to states and localities. Before FEMA can provide any significant direct funding, however, a presidential declaration must occur.

      The Stafford Act authorizes the President to issue two types of declarations: a “major disaster declaration” and an “emergency declaration.” Major disaster declarations authorize a wide range of federal assistance to states, local governments, tribal nations, individuals, households, and certain non-profit organizations to aid recovery from a catastrophic event. Major disaster declarations must be requested by the state governor, mayor, or tribal leader. Emergency declarations, which are issued by the President to protect property, public health, and safety, as well as lessen or avert the threat of a major disaster, authorize a more limited range of federal assistance. In most cases, the governor, mayor, or tribal leader must request the emergency declaration. The President, however, may declare an emergency without first receiving a gubernatorial, mayoral, or tribal leader request if the emergency involves an area of primary federal responsibility, (e.g., federal buildings or army bases).

      FEMA issues recommendations to the President based on the severity of the catastrophe or emergency.

      Under the Stafford Act, there are three types of disaster assistance programs offered by FEMA:

      • Individual Assistance: provides aid to individuals and households
      • Public Assistance: provides assistance to state and local governments and certain private non-profit organizations for emergency work and the repair or replacement of disaster-damaged facilities
      • Hazard Mitigation Assistance: provides assistance to state and local governments for actions taken to prevent or reduce long-term risk to life and property from natural hazard

      More information and a summary of these programs can be found at https://www.fema.gov/disaster-declaration-process.

      4.2.2    Public Health Emergency Declarations 

      Under section 319 of the Public Health Service (PHS) Act, the United States Secretary of Health and Human Services (HHS Secretary) is authorized to declare a public health emergency if the HHS Secretary determines that a public health emergency exists. A public health emergency exists if:

      • A disease or disorder presents a public health emergency; or
      • A public health emergency, including significant outbreaks of infectious diseases or bioterrorist attacks, otherwise occurs.

      A public health emergency declaration is in effect until the HHS Secretary declares that the emergency no longer exists, or after 90 days (whichever occurs first). If the HHS Secretary finds that the public health emergency declaration should remain in effect because of a continuation of the original public health threat or the emergence of new circumstances, the HHS Secretary may renew the declaration for additional 90-day periods. The HHS Secretary has broad authority to “take such action as may be appropriate” and may use funds from the Public Health Emergency Fund to respond to the public health emergency.

      4.2.3    The National Emergencies Act 

      The National Emergencies Act (NEA) allows the President to declare a “national emergency.” The NEA does not provide any specific emergency authority itself; instead, it relies on emergency authorities provided in other federal statutes and triggers statutory authorities as specifically identified in the President’s declaration.

      A national emergency may be terminated when the President issues a proclamation or if Congress enacts a joint resolution terminating the national emergency. A national emergency will automatically terminate on the anniversary of the declaration unless renewed by the President.

      During the H1N1 pandemic, President Obama signed a declaration under the NEA, which, together with the prior determination by the HHS Secretary of the existence of a public health emergency, allowed healthcare facilities to waive certain regulatory requirements while responding to the pandemic. This declaration can be accessed at https://obamawhitehouse.archives.gov/realitycheck/the-press-office/declaration-a-national-emergency-with-respect-2009-h1n1-influenza-pandemic-0.

      4.3 Section 1135 Waivers

      When the President declares a disaster or emergency under the Stafford Act or NEA and the HHS Secretary declares a public health emergency under Section 319 of the PHS Act, the HHS Secretary is authorized to take certain actions in addition to their regular authorities under section 1135 of the Social Security Act (SSA). The HHS Secretary may waive or modify certain Medicare, Medicaid, Children’s Health Insurance Program (CHIP), or Health Insurance Portability and Accountability Act (HIPAA) requirements as necessary to ensure that sufficient healthcare items and services are available to meet the needs of individuals in the emergency area during the emergency time period. In addition, the waivers and modifications ensure that providers of such services who act in good faith and are unable to comply with certain statutory requirements are reimbursed and exempted from sanctions for non-compliance (other than acts of fraud or abuse).

      An “emergency area” is defined as a geographical area in which an "emergency period" has been declared, during which an emergency or disaster exists that has been declared by the President under the NEA or the Stafford Act; and a Public Health Emergency declared by the Secretary under section 319 of the PHS Act.

      For the purposes of 1135 waivers, the term “healthcare provider” refers to any entity that furnishes healthcare items or services (e.g., hospitals, nursing homes) healthcare facilities, or other providers of or supplier of healthcare items or services, a physician, or other healthcare practitioners or professionals.

      Examples of 1135 waivers or modifications include:

      • Conditions of participation or certification requirements, program participation, or similar requirements for individual healthcare providers or types of healthcare providers;
      • Preapproval requirements;
      • Requirements that physicians and other healthcare professionals hold licenses in the state in which they provide services if they have a license from another state for purposes of Medicare, Medicaid, and CHIP reimbursement only;
      • Sanctions under the Emergency Medical Treatment and Active Labor Act (EMTALA) for redirection or reallocation of an individual to another location to receive a medical screening pursuant to an appropriate state emergency preparedness plan or a state preparedness plan for the transfer of an individual who has not been stabilized if the transfer is necessitated by the circumstances of the declared federal public health emergency. A waiver of EMTALA sanctions is effective only if actions under the waiver do not discriminate on the basis of a patient’s source of payment or ability to pay;
      • Sanctions under section 1877(g) (the Physician Self-Referral Law or the Stark Law) relating to limitations on physician referrals;
      • Deadlines and time tables for performance of required activities to allowing of such deadlines to be modified;
      • Limitations on payments for healthcare items and services to permit Medicare Advantage plan enrollees to use out-of-network providers in an emergency situation; and
      • Sanctions and penalties arising from non-compliance with certain HIPAA privacy regulations. The waiver of HIPAA requirements is effective only if actions under the waiver do not discriminate on the basis of a patient’s source of payment or ability to pay.

      Section 1135 waivers and modifications may be retroactive to the beginning of the emergency period. Waivers and modifications terminate either upon the termination of the emergency period or 60 days after the waiver or modification is first published (subject to 60-day renewal periods until termination of the emergency). Waivers of EMTALA (other than for a pandemic disease) or HIPAA requirements, however, are effective only for 72 hours after the implementation of a hospital disaster protocol. A waiver of EMTALA sanctions during pandemic disease is effective until the termination of the pandemic-related public health emergency.

      The 1135 waiver authority applies only to federal requirements and does not apply to state requirements for licensure or conditions of participation.

      Additional information regarding 1135 waivers, including required elements, can be found at https://www.phe.gov/Preparedness/legal/Pages/1135-waivers.aspx.

      4.4 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. Code § 1395dd.

      Under EMTALA, an “emergency medical condition” is a medical condition manifesting itself by acute symptoms of sufficient severity such that the absence of immediate medical attention could reasonably result in:

      • Serious jeopardy to individual, woman, unborn child;
      • Serious bodily function impairment;
      • Serious bodily organ dysfunction;
      • Not enough time to safely transfer a laboring woman before delivery; or
      • Transfer may harm the laboring woman or unborn child.

      ​A fact sheet addressing frequently asked questions regarding EMTALA and disasters can be found at https://asprtracie.s3.amazonaws.com/documents/aspr-tracie-fact-sheet-emtala-and-disasters.pdf.  

      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. See Centers for Medicare & Medicaid Services, Fact Sheet for Medicaid and CHIP Providers Influenza A (H1N1) Flu.

      4.5 Mayoral Authority to Declare Emergencies

      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 4.6 of the Manual.

      4.5.1    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 is 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, is an immediate or imminent danger to persons or property, and can 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 the reduction or alteration of 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 an actual disaster to ensure adequately trained and equipped personnel are available during a public emergency;

      • Request federal disaster assistance, including 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 the 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. 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. If 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 up to 15 days 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, as soon as practicable. 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 a public emergency flowchart.

      4.5.2    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 healthcare 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 healthcare 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 DRP and D.C. Official Code §§ 7-131 to -144;
      • Exempt licensed healthcare 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) for the duration of the public health emergency; and
      • Waive any licensing requirements, permits, or fees otherwise required by District law to allow healthcare providers licensed in their home jurisdiction in their fields of expertise to be appointed as temporary agents to respond to the public health emergency.

      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. 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. If 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, 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 a public health emergency flowchart.

      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 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 D.C. Council.

      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 14 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.

      4.6 Natural Disaster Consumer Protection Act

      4.6.1    State of Emergency 

      The Natural Disaster Consumer Protection Act provides additional emergency declaration authority to the Mayor 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.

      4.6.2    Natural Disaster Defined 

      Natural disaster is 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).

      4.6.3    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).

      4.6.4    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.

      4.7 Emergency Management

      4.7.1    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 U.S. (typically in the District), 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/page/msetg-special-events-calendar.

      4.7.2    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).

      4.7.3    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. 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 includes 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).

      For more information on MWCOG and the National Capital Region (NCR), see section 4.10.1 of the Manual.

      4.7.4    District of Columbia Emergency Support Function #8 DC Health, Health and Medical Coalition 

      DC Health, Health and Medical Coalition (DC Health-HMC) serves as a strategic planning committee and advisor to the DC Health Director. As such, it fosters partnerships among government agencies, healthcare 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 training, drills, and exercises between state, local, and federal partners.

      4.8 Emergency Planning

      4.8.1    District Response Plan and Program

      The Mayor has authority to establish a public health preparedness plan and 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 to prepare for and respond to 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 to protect life and property and ensure public safety.

      4.8.2    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 Health Emergency Preparedness and Response Administration (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.

      4.8.3    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).

      4.9 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 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 landlines, hotlines, radio, WebEOC, closed-circuit television (CCTV), and other non-secure systems to ensure constant receipt and dissemination of information.

      4.10 Mutual Aid

      The Mayor may enter into interstate civil defense compacts with other jurisdictions 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.

      4.10.1    National Capital Region 

      The NCR was granted authority to establish mutual aid agreements in the NCR with certain liability protection by the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458, as amended by Senate Report 110-237, S. 1245 (IRTPA). The NCR Mutual Aid Agreement (NCR-MAA) supports all mutual aid generally provided between and among units of NCR jurisdictions, including, but not limited to police, fire, emergency management, public health, and public works.

      The NCR consists of 24 jurisdictions within two States and the District of Columbia:

      • District of Columbia
      • Maryland – Town of Bladensburg, City of Bowie, City of College Park, Charles County, City of Frederick, Frederick County, City of Gaithersburg, City of Greenbelt, City of Hyattsville, City of Laurel, Montgomery County, Prince George's County, City of Rockville, and City of Takoma Park.
      • Virginia – City of Alexandria, Arlington County, City of Fairfax, Fairfax County, City of Falls Church, Loudoun County, City of Manassas, City of Manassas Park, and Prince William County.

      The MWCOG provides staff support for administrative maintenance of mutual aid agreements in the NCR. Additionally, the MWCOG may assist in coordinating initial requests for mutual aid assistance.

      The member jurisdictions of the NCR have entered into a number of agreements for assistance during an emergency or public service event, for example:

      • The National Capital Region Mutual Aid Agreement was entered into pursuant to IRTPA between and among the District of Columba, the State of Maryland, the Commonwealth of Virginia, and certain local governments of the National Capital Region, that are MWCOG jurisdictions. According to the NCR-MAA, during an emergency or public service event, assistance will be provided according to the procedures established in one or more operational plans developed and agreed to NCR-MAA members. Parties responding outside of their jurisdiction, and their employees actually providing the assistance, will be under the general control and direction of the appropriate official designated by the jurisdiction requesting aid. This agreement is effective from December 15, 2005 until terminated by all but one of the parties executing the agreement.
         
      • The Metropolitan Washington Council of Governments Fire and Rescue Mutual Aid Operations Plan effectuates provisions of the NCR-MAA, Section 5, and ensures the fullest cooperation among fire prevention and suppression and emergency medical services agencies in the NCR. Fire and Rescue Mutual Aid Operations Plan (MAOP) creates and describes relationships and provides general direction and guidance rather than specifying the operations of responding agencies.
         
      • The National Capital Region Water and Wastewater Mutual Aid Agreement allows a signatory’s authorized official to request mutual aid and assistance from another participating signatory in the event of an emergency, water emergency, or a public service event. They may also request assistance either orally or in writing. Requests for assistance shall be directed to the authorized official of the potential responding signatory. Each signatory must identify one initial authorized official. The procedure for notifying signatories when the authority to act as an authorized individual is given to or withdrawn from an individual is also set forth in the agreement. Nothing in this agreement is intended to interfere with signatory’s ability to request assistance or provide assistance under a state emergency management process, either within the state or out-of-sate as part of the EMAC process.

      4.10.2    Emergency Management Assistance Compact

      EMAC provides mutual assistance between the member states to manage any declared emergency or disaster in the affected state(s), including those arising from natural disasters, technological hazards, man-made disasters, civil emergency aspects of resources shortages, community disorders, insurgencies, and enemy attacks. 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 the provision of personnel, equipment, and commodities to help disaster relief efforts in other jurisdictions. Once the conditions for providing assistance to a requesting jurisdiction have been set, the terms constitute a legally binding contractual agreement between the jurisdictions, including the responding jurisdiction.

      The EMAC legislation helps resolve issues related to liability and costs, and permits reciprocity of credentials, licenses, and certifications. See http://www.emacweb.org for more information.

      4.11 National Disaster Medical System

      When a disaster overwhelms District resources, health officials may request support from the National Disaster Medical System (NDMS). This request is facilitated by the Assistant Secretary for Preparedness and Response (ASPR) Regional Administrators (RAs) and Regional Emergency Coordinators (RECs). The NDMS provides technical assistance and personnel to augment local health and medical system capacity and response capabilities in the event of disasters and emergencies or as part of a national security special event.

      The NDMS is comprised of medical, fatality management, veterinary, and para-professionals. NDMS personnel may be deployed several times per year, and must complete training, attend meetings and drills, respond to requests for information, and maintain appropriate licensure and certifications within their discipline. When NDMS personnel are activated as intermittent federal employees and acting under official orders from NDMS, licensure and certification is recognized in all states. Liability protections are also provided under the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Federal Tort Claims Act (FTCA), and Federal Employees’ Compensation Act (FECA).

      More information about the NDMS, can be found at https://www.phe.gov/Preparedness/responders/ndms/Pages/default.aspx.

      See section 11.0 of the Manual for more information on licensing and legal protections for volunteers during an emergency.

      ASPR can call on a number of NDMS teams, depending on the situation, needs of the community, and the resources overwhelmed. These teams include:

      • Trauma and Critical Care Teams (TCCTs): TCCTs provide critical, operative, and emergency care, and advanced trauma life support. TCCTs can provide a deployable advance unit, augmentation to existing medical facilities, and establish a stand-alone field hospital.
         
      • Disaster Medical Assistance Teams (DMATs): DMATs can assist hospitals and medical facilities in serving their patients, support medical sites and shelters, provide mass prophylaxis, and stand ready to serve in case of an emergency or during a special event. DMATs are comprised of clinical, non-clinical, and leadership staff.
         
      • National Veterinary Response Teams (NVRTs): NVRTs provide expert veterinary care to service animals, including security animals. NVRT members include veterinarians, animal health technicians, epidemiologists, safety specialists, logisticians, communications specialists, and other support personnel.
         
      • Victim Information Center (VIC) Team: The VIC team supports local authorities and other NDMS teams in the aftermath of a mass casualty event. The VIC team provides technical assistance and consultation on the collection and management of ante-mortem data, such as pictures, fingerprints, dental x-rays, and other medical records, to help identify the victims. They can also provide subject matter expertise in mass fatality management and victim information procurement, assist in updating the Victim Identification Program (VIP) database, coordinate the release of remains, and serve as a liaison to the victims’ families.
         
      • Disaster Mortuary Operational Response Teams (DMORTs): DMORTs are composed of funeral directors, medical examiners, pathologists, forensic anthropologists, finger print specialists, forensic odontologists, dental assistants, administrative specialists, and security specialists. While DMORTs work under the delegated jurisdictional authority of the local or state Coroner or Medical Examiner, DMORT personnel work under the overall command and control of the United States Department of Health and Human Services (HHS) Emergency Management Group (EMG) and/or the Incident Response Coordination Team (IRCT).

      DMORTs can assist a community by:

      • Quickly and accurately identifying victims;
      • Supporting local mortuary services;
      • Reuniting victims with their loved ones in a dignified, respectful manner;
      • Helping families, friends, and communities find closure so that they can move forward and begin to heal;
      • Tracking and documenting human remains and personal effects;
      • Establishing temporary morgue facilities;
      • Assisting in the determination of cause and manner of death;
      • Collecting ante-mortem data;
      • Collecting medical records, dental records, or DNA of victims from next of kin to assist in victim identification;
      • Performing postmortem data collection;
      • Providing documentation during field retrieval and morgue operations;
      • Performing forensic dental pathology and forensic anthropology methods; and
      • Processing and re-interment of disinterred remains preparation.

      DMORTs may deploy with a Disaster Portable Morgue Unit (DPMU). A DPMU contains a complete morgue and prepackaged equipment and supplies.

      Region III DMORT's primary area of coverage includes Delaware, the District, Maryland, Pennsylvania, Virginia, and West Virginia. As of January 2017, the team has approximately 86 members representing all disciplines and support personnel. Region III maintains relationships with the medical examiners' offices in each state and the District, and coroners in Pennsylvania. See dmort3.org.

  4. MEDICAL COUNTERMEASURES

    • 5.1 Summary

      In the event of a major disaster or emergency, critical medical supplies will be needed across 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 may cause serious health impacts for entire populations that require MCM to mitigate impacts. Both federal and District laws authorize or guide the use of MCM, including liability exemptions. In some cases, special United States Food and Drug Administration (FDA) emergency use authorities may need to be utilized in order to use the best MCMs available for response in impacted populations.      

      5.2 Mayor’s Authority

      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. 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 the District law so as to establish a grant of authority to the 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.

      See section 4.5 of the Manual regarding the mayor’s authority to declare emergencies.

      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 United States Secretary of Health and Human Services (HHS Secretary) to provide for the emergency health security of the U.S. 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 Office of the Assistant Secretary for Preparedness and Response (ASPR) within the United States Department of Health and Human Services (HHS), 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 MCMs 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. Another component of the SNS is CHEMPACKS 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 for their immediate use in suspected or confirmed victims. This is essential since any delay in treatment could gravely affect patient outcomes.

      Section 402: Public Health Emergency Medical Countermeasure Enterprise (PHEMCE) of the Pandemic and All-Hazards Preparedness and Advancing Innovation Act of 2019 (PAHPIA) codifies the PHEMCE into law. The PHEMCE is designed to inform the direction of research, development, stockpiling, utilization, and procurement of MCMs for the SNS, including considerations for deployment and distribution of MCMs.

      Section 403: Strategic National Stockpile of the PAHPIA requires collaboration between the ASPR Secretary and the Centers for Disease Control and Prevention (CDC) regarding management of the SNS, while reauthorizing the SNS through 2023.

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

      Human casualties are the highest priority for emergency responders in disasters and 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 (e.g., due to chemical agents) or delayed (e.g., due to 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. See 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). The Mayor’s authority in this regard may be delegated to the Chief Public Health Officer/DC Health Director.

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

      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 Medical Countermeasures Emergency Use Authorities

      Under most circumstances, drugs, medical devices, and biologics may only be introduced into interstate commerce if they have been approved, cleared, or licensed by the United States Food and Drug Administration (FDA). In certain situations, the best MCMs available for response are unapproved by the FDA or may need to be used in unapproved ways. The FDA has special authorization to allow for the use of such MCMs in impacted populations during or in anticipation of emergencies. Mechanisms the FDA can use to allow the emergency use of MCMs include the emergency use authorization (EUA) authority and several authorities related to the emergency use of approved MCMs. See  https://www.fda.gov/emergency-preparedness-and-response/mcm-legal-regulatory-and-policy-framework/mcm-related-counterterrorism-legislation.

      The FDA-issued Emergency Use Authorization of Medical Products and Related Authorities: Guidance for Industry and Other Stakeholders provides useful information regarding MCM emergency use authorities.

      5.7.1    Emergency Use Authorization Authority

      Under section 564 of the Federal Food, Drug, and Cosmetic Act (FD&C Act), the FDA may authorize (1) the use of an unapproved medical product, or (2) an unapproved use of an approved medical product, in certain situations through an EUA to make available an MCM for use in an emergency without violating provisions of the FD&C Act. Before the FDA may issue an EUA, the HHS Secretary must declare that circumstances exist justifying the authorization. The HHS EUA declaration is based on one of four types of determinations issued by the HHS Secretary, the DHS Secretary, or the United States Department of Defense Secretary. The FDA also must ensure that certain criteria for issuance are met, such as that the known and potential benefits of the product outweigh its known and potential risks and that there is no adequate, approved, and available alternative to the product.

      Each EUA includes specific conditions for the various stakeholders involved (e.g., HHS, state and local stakeholders, and healthcare providers) and fact sheets about the product and its emergency use for healthcare providers and recipients. The FDA has issued over 60 EUAs. Generally, an EUA remains in effect for the duration of the emergency declaration made by the HHS Secretary unless revoked at an earlier date.

      5.7.2    Other Medical Countermeasure Emergency Use Authorities (limited to approved medical products)

      Emergency activities involving eligible FDA-approved products without the FDA needing to issue an EUA are also possible through actions under section 564A of the FD&C Act, including the issuance of an emergency dispensing order (EDO), waiver of Current Good Manufacturing Practice (CGMP) requirements, waiver of Risk Evaluation and Mitigation Strategies (REMS) requirements, extension of labeled expiration dating, and/or issuance of emergency use instructions (EUI) for specific MCMs.

      These authorities are delegated from HHS to the FDA. However, the EUI authority was delegated from HHS to CDC in 2013. For additional information about the FDA and CDC coordination on the EUI authority, refer to the FDA-CDC memorandum of understanding.

      The EDO authority allows the FDA to facilitate the availability and use of eligible, approved MCMs needed during public health emergencies by allowing emergency dispensing of approved MCMs without requiring an individual prescription for each recipient of the MCM. The FDA intends to issue orders to allow emergency dispensing when, based on available information about the MCM, emergency response plans, and operational needs, the FDA concludes that it is reasonable to permit emergency dispensing of eligible FDA-approved products. The FDA may allow emergency dispensing (including mass dispensing at a point of dispensing (POD)) of approved MCMs during an actual Chemical, Biological, Radioactive, or Nuclear (CBRN) emergency, without requiring an individual prescription for each recipient of the MCM, if (1) permitted by state law or (2) in accordance with an order issued by the FDA. EDOs issued by the FDA also may include waivers of CGMP requirements, such as storage or handling when appropriate to accommodate emergency response needs.

      When MCMs are needed during public health emergencies, information about the emergency use of the product is also needed. The EUI authority allows CDC to provide streamlined information (also referred to as fact sheets for recipients of an MCM and for healthcare professionals) about the use of eligible, approved MCMs. Under section 564A(e) of the FD&C Act, CDC may create and issue, and government stakeholders may disseminate, EUI about the FDA-approved conditions of use for such MCMs before or during a CBRN event. EUI are intended to be similar to “fact sheets” that have been authorized in past EUAs, and may be directed to healthcare professionals and authorized dispensers or to recipients of an eligible MCM. The EUI authority offers enhanced flexibility for CDC to prepare and disseminate EUI concerning a disease or condition for which an MCM is FDA-approved, licensed, or cleared without further limitation.

      The FDA and CDC interpret this provision as permitting the creation of EUI that describe how the approved drug may be used, for the disease or condition for which it is approved, but in ways that may deviate from or extend beyond the FDA-approved labeling. When feasible, the FDA and CDC will coordinate issuance of an EDO and EUI for a specific approved MCM together as a “package.” Such packages also may include waivers of certain CGMP requirements (e.g., temporary deviations from the labeled storage conditions) and expiration dating extensions.

      Under section 564B of the FD&C Act, government entities and their agents may preposition or stockpile an unapproved medical product intended for emergency use in anticipation of the FDA approval or clearance, or issuance of an EUA to enable them to better prepare for potential rapid deployment during an actual CBRN emergency.

      Currently, there are EDOs for doxycycline and ciprofloxacin for post-exposure prophylaxis of inhalational anthrax during an anthrax emergency, with accompanying EUI.

      Information about expiration dating extensions by the FDA can be found at https://www.fda.gov/emergency-preparedness-and-response/mcm-legal-regulatory-and-policy-framework/expiration-dating-extension.

      5.8 Liability Protection

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

      The Advanced Life Support Act of 1977 (D.C. Official Code § 7-401) provides 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.

      See section 11.3.1 of the Manual for information regarding liability protections for volunteer health practitioners who provide services under D.C. Official Code § 7-2361.01 to-2361.12.

      The Public Readiness and Emergency Preparedness Act (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 (called a “PREP ACT declaration”) that provides immunity (except for willful misconduct) for claims related to administration or use of countermeasures against CBRN agents to entities and individuals involved in the development, manufacture, testing, distribution, administration, and use of such countermeasures. A PREP Act declaration includes, among other provisions:

      • 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.

      Additional information about the PREP Act and current PREP Act declarations are available at https://www.phe.gov/Preparedness/legal/prepact/Pages/default.aspx.

  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 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.

      See https://www.dccourts.gov/coronavirus for more information about the operation of District court operations during the COVID-19 pandemic.

      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. In addition, the court may be unwilling to permit an infected or potentially infected individual to appear in person because of a potential health threat 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 is not permitted to attend proceedings in person, the court may wish to consider an alternative procedure. Super. Ct. Civ. R. 43(b) provides that “[f]or good cause in compelling circumstances and with appropriate safeguards, the court may permit 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, the defendant is required to be present in the court unless, with the defendant’s written consent, the court permits arraignment, plea, trial, and sentencing to occur by video teleconferencing or in the defendant’s 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 regarding their 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 their privacy interest.

      The Superior Court has the authority to seal cases and documents by court order pursuant to Super. 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)) which recognizes 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 healthcare provider may disclose a person’s protected health information (PHI) 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 of the Manual.

      6.4 Protection of Court Personnel

      In the event of an outbreak of infectious disease in a community, the court may adopt the procedures discussed in section 6.2.1 to ensure that an individual subject to an isolation or quarantine order does not potentially expose court personnel to the disease. In certain circumstances, such as when the outbreak has affected large numbers of persons 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 requires the closure of the Superior Court or renders it impracticable for the U.S. 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, 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, unless the chief judge, with the consent of the Joint Committee on Judicial Administration, enters 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

      The Superior 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 assists public health officials in investigating communicable diseases and taking actions to protect the health of the community. Identification and reporting of communicable disease is a collaborative effort among physicians and other healthcare 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 (e.g., 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 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 and re-emerging infectious diseases. Examples of such diseases include Ebola, Zika, Middle Eastern Respiratory Syndrome (MERS), measles, Severe Acute Respiratory Syndrome (SARS), Coronavirus Disease 2019 (COVID-19). See section 16.0 of the Manual for more information about emerging and re-emerging diseases.

      7.2 Communicable Diseases

      A communicable disease is any disease listed as a notifiable 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 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 DC Health Director.

      As many diseases are transmitted via animals and vectors (e.g., mosquitoes), see section 13.0 of the Manual.

      7.3 Communicable Disease Reporting

      See Appendix 5.0 for a chart of notifiable diseases and conditions developed by DC Health (last revised March 2018). To ensure that the information is the most current, visit: https://dchealth.dc.gov/service/infectious-diseases.

      Occasionally the DC Health Division of Epidemiology-Disease Surveillance and Investigation (DE-DSI) will issue health notices providing important information and updates on diseases and issues of public health significance. For the most up to date information regarding communicable diseases, refer to the recent health notices posted at https://dchealth.dc.gov/page/health-notices. For example, in February 2019, a Health Notice was issued for reporting, control, and containment of Candida auris.

      7.3.1    Notifiable Diseases 

      1. The following diseases must be reported immediately upon provisional diagnosis or the appearance of suspicious symptoms by submission in writing via an online case report within 24 hours:
      • Animal bites;
      • Hepatitis A;
      • Shiga toxin-producing Escherichia coli (STEC);
      • Staphylococcal infections in newborns (nosocomial); and
      • Vibriosis (non-cholera Vibrio species infections).

      See List of Notifiable Diseases and Conditions in the District of Columbia.

      1. The following diseases must be reported by telephone to DC Health immediately upon provisional diagnosis or the appearance of suspicious symptoms, with written confirmation via an online case report within 24 hours:
      • 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;
      • Influenza A, novel;
      • Influenza-associated mortality (patients less than eighteen (18) years of age);
      • 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);
      • Smallpox;
      • Tularemia;
      • Typhoid fever (Salmonella typhi);
      • Viral hemorrhagic fevers (Ebola or other);
      • Yellow fever;
      • An infection or outbreak that may be of public health concern (including healthcare associated and foodborne); and
      • An emerging infectious disease or an unusual occurrence of any disease.

      See 22B DCMR § 201.1 and List of Notifiable Diseases and Conditions in the District of Columbia. 

      A healthcare associated infection (HAI) is an 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 an incident in which two or more persons experience a similar illness resulting from ingestion of a common food. 22B DCMR § 299.1.

      1. The following diseases must be reported to DC Health in writing via an online case report within 24 hours after provisional diagnosis or the appearance of suspicious symptoms:
      • Brucellosis;
      • Campylobacteriosis;
      • Chikungunya;
      • Dengue;
      • Haemophilus influenza, invasive disease;
      • Healthcare-associated infection, cluster or outbreak;
      • 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).

      See 22B DCMR § 201.2 and List of Notifiable Diseases and Conditions in the District of Columbia.

      1. The following diseases must be reported to DC Health in writing via an online case report within 24 hours after provisional diagnosis or the appearance of suspicious symptoms if there are 3 or more cases that occur within a 7-day period in a school or childcare facility:
        • Conjunctivitis (Pink Eye) outbreak;
        • Gastrointestinal illness outbreak;
        • Hand, foot, and mouth disease outbreak;
        • Head lice outbreak;
        • Impetigo outbreak;
        • Pinworm (Enterobiasis) outbreak;
        • Ringworm (Tinea) outbreak;
        • Scabies outbreak; and
        • Streptococcal non-invasive, Group A (Scarlet fever and strep throat) outbreak.

      See 22B DCMR § 201.2(k) and List of Notifiable Diseases and Conditions in the District of Columbia.

      1. The following diseases must be reported to DC Health in writing via an online case report within 48 hours after diagnosis or the appearance of suspicious symptoms:
      • Babesiosis;
      • Chancroid;
      • Chickenpox (morbidity, pediatric mortality);
      • Chlamydia trachomatis 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;
      • Melioidosis;
      • 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;
      • Urethritis, atypical;
      • Vaccine adverse events; and
      • West Nile virus.

      See 22B DCMR § 201.3 and List of Notifiable Diseases and Conditions in the District of Columbia.

      Reporting for acute hepatitis B is currently mandated. However, DC Health is requesting case reports for chronic and perinatal hepatitis B, which will be mandated in forthcoming regulations. Reports are also requested for a pregnancy in a woman positive for hepatitis B or C. See Appendix 5.0 of the Manual.

      1. Acute care, ambulatory, long-term acute care, skilled nursing, and outpatient renal dialysis facilities should report the following conditions to the National Healthcare Safety Network (NHSN) and provide DC Health with access to these data:
      • Carbapenem-resistant enterobacteriacae - LabID event;
      • Catheter-associated urinary tract infections;
      • Central line-associated bloodstream infections;
      • Clostridium difficile (C. difficile)- LabID event;
      • Methicillin-resistant Staphylococcus aureus (MRSA) bacteremia- LabID event; and
      • Surgical site infection, abdominal hysterectomy; and
      • Surgical site infection, colon surgery.
      1. Lead poisoning in children must be reported to the District of Columbia Department of Energy & Environment (DOEE) immediately by telephone or fax if the results are greater than or equal to 10 µg/dL.

      As a courtesy, all results greater than or equal to 5 µg/dL should also be reported immediately. Providers must report the case to DOEE by telephone within 72 hours of receiving notification from a laboratory or another provider/facility. Laboratories, including providers who utilize point-of-care testing, are required to report all test results less than 10 µg/dL within 1 week of analysis.

      See List of Notifiable Diseases and Conditions in the District of Columbia.

      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 § 202.9.

      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.

      Notifiable disease reporting requirements can change over time. For the most up-to-date information, please visit DC Health’s website https://dchealth.dc.gov/node/115052.

      7.3.3    Mandated Reporters and Special Reporting Obligations 

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

      Physicians and other healthcare 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.

      See section 8.0 of the Manual for more information about isolation, quarantine, and other types of detention.

      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 healthcare providers must report an HIV/AIDS (Acquired Immune Deficiency Syndrome) 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 of the Manual.

      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 online 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.

      For more information regarding animal bites and rabies, see section 13.5 of the Manual and the DC Health website: https://dchealth.dc.gov/node/115012, https://dchealth.dc.gov/service/dog-bites, and https://dchealth.dc.gov/service/rabies-and-animal-exposures.

      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;
      • Tuberculosis; 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 their 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 notifiable communicable disease. 29 DCMR § 322.1.
         
      3. Acute Care, Ambulatory, Long-Term Acute Care, Skilled Nursing, and Outpatient Renal Dialysis Facilities – These facilities should report the conditions in 7.3.1 F to the NHSN and provide DC Health with access to these data.

      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 have the authority to control and investigate public nuisances. A public nuisance is an “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 of the Manual 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 12.5.1 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 law authorizes both the Mayor and DC Health to issue detention orders to individuals and groups of individuals. Typically, however, the Mayor delegates 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” can 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. See Quarantine and Isolation.

      8.2.2    Isolation 

      “Isolation” separates people affected with a contagious disease from people who are not sick. See Quarantine and Isolation.

      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).

      8.3 Rulemaking Authority

      8.3.1    Authority of the Mayor

      The Mayor may promulgate regulations governing isolation, quarantine, and other restrictions of movement. This authority has been delegated to 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 of the Manual.

      8.3.2    Construction of the Regulations

      Regulations to prevent spread of communicable disease 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 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.

      If the detained individual has limited English proficiency or does not speak English, interpretation services should be provided.

      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).

      District law is silent regarding who pays the cost for involuntary quarantine.

      8.4.5    Authority of the Director of DC 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.

      In March 2014, Patient X was diagnosed with active pulmonary tuberculosis (TB) in Champaign-Urbana, Illinois. Champaign-Urbana Public Health District (CUPHD) officials ordered Patient X to remain at home and receive daily visits from a public health nurse for directly observed therapy. Patient X refused to comply with the CUPHD isolation order and continued to shop in public and live with others. Based on Patient X’s actions, the CUPHD Administrator decided that a court order was necessary for protection of the public’s health. A hearing was held at CUPHD and the court issued an order of isolation, which also included an order to wear a GPS monitoring device. Patient X refused to wear a facemask when in the presence of others, submit sputum samples, and allow a public health nurse to observe him taking his medications. Patient X also removed a quarantine sign from his front door, continued to live with others, and failed to charge the batteries for their GPS electronic monitoring device. Due to Patient X’s noncompliance, the Champaign County State’s Attorney filed a petition for indirect criminal contempt on April 17, 2014. Patient X was arrested and jailed in neighboring Piatt County, where a negative airflow room was located. In jail, Patient X resumed his TB medications. After 3 negative sputum samples were collected from Patient X, Champaign County filed a Petition for Discharge from Isolation and Termination of Order of Isolation. The court granted the petition and vacated the order. Patient X was released the next day but the indirect criminal contempt charges remained. Those charges were eventually dropped in September 2014. See Putting the Law Into Practice: A Comparison of Isolation and Quarantine as Tools to Control Tuberculosis and Ebola.

      In certain circumstances, such as when the communicable disease is easily transmitted through airborne droplets, the court may require that all attendees at hearings be fitted with N95 respirator masks for their protection.

      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.

      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.

      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).

      “Group” does not refer to specific groups (i.e., racial or ethnic groups, people with similar characteristics).

      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 required. 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 of the Manual 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 DC 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 of the Manual for further information regarding HIPAA and section 4.4 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 practices. 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 practices. 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 notifiable disease reporting. 22B DCMR § 202.1- 202.2

      Section 7.3 of the Manual provides a list of notifiable disease and reporting requirements. Appendix 5.0 provides a chart of notifiable diseases and conditions developed by DC Health (last revised March 2018).

      In addition, the physician or person in charge of a detained individual must submit detailed instructions concerning the detention in their 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

      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.

      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.

      8.10 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, confinement, detainer, or restraint. 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).

      8.11.3    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.

      D.C. Official Code Title 16, chapter 19 outlines the habeas corpus process and requirements in the District.

  8. INSPECTIONS, SEIZURES, AND DESTRUCTION OF PROPERTY

    • 9.1 Summary

      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. When public health concerns are being addressed, particularly in emergency situations, however, constitutional restraints are less stringent. 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 regulating actions is a significant public health function performed by DC Health.

      “The Fourteenth Amendment provides that ‘[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.’ By its own terms, this amendment applies solely to the states, and not to the District. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). However, ‘it is unquestioned that equal protection principles are embodied in the Due Process Clause of the Fifth Amendment, which does apply’ to the District. Hessey v. Burden, 615 A.2d 562, 567 n. 6 (D.C.1992).” Dean v. United States, 938 A.2d 751, 759 (D.C. 2007).

      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.

      In general, governmental 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. 523, 528-529 (1967). A 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.

      The court determines 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. at 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 to public health emergency issues when “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, the court must balance the individual’s privacy expectations against governmental 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 interests must be substantial if the individual’s privacy interests are high. A substantial government interest may include “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). The seriousness of the threat and the need for immediate governmental action are considerations when determining whether a warrantless search or seizure in the context of communicable diseases and other health hazards is warranted. 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.” This provision, referred to as the “Taking Clause”, is applied to state action under the Fourteenth Amendment. In general, the government must pay “just compensation” for private property taken for public use. 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 law, the Mayor has broad powers over private property when an emergency has been declared. See section 4.0 of the 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 an unreasonable interference with a right common to the general public. Public nuisances include those that interfere with public health, such as harboring diseased animals. Restatement (Second), Torts, § 821B.

      When a public nuisance is identified, the Mayor may remove it 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 4.5.1 E of the Manual.

      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(b). 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 and may condemn 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 U.S. government cannot be investigated under this section.

      1. “Uninhabitable” is 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 their 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 may examine the structure or excavation. If the Mayor determines that the condition of the structure or excavation is an imminent threat to public safety requiring immediate emergency measures, 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

      During disaster recovery, it may be necessary to condemn damaged buildings. The Board of Condemnation of Insanitary Buildings, appointed by the Mayor, is responsible for issuing orders of condemnation that require correction of the conditions or 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. 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 4.5 of the Manual regarding the Mayor’s authority to declare emergencies.

      See Appendix 3.0 for an inspection and condemnation flowchart.

      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 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
      • Restaurants of the United States Congress.  

      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 District Food Code, 25-A DCMR § 100 et seq. (Food Code) the person in charge of the food establishment 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, a DC Health 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 is 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 is critical to protect the public’s health.

      9.5.3    Imminent Health Hazard

      An “imminent health hazard,” is a significant threat or danger to when there is sufficient evidence that a product, practice, circumstance, or event requires immediate correction or cessation of operations to prevent injury because of 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 the 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 law, as well as by the United States Constitution.

      However, both federal and District law provide exceptions that allow disclosure to public health officials without an individual’s consent. In general, the Health Insurance Portability and Accountability Act of 1966 (HIPAA) specifically allows disclosure of protected health information (PHI), without the patient’s written authorization for statistical or public health purposes or when essential to safeguard the health and safety of others. In addition, healthcare providers must provide patients with access to their medical records within a reasonable time after a written request is made.

      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 Sates 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 rule on issues related to patient privacy related to public health emergencies, generally, the community’s interest in addressing 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 Healthcare Providers

      1. Obligation to Provide Access to Medical Records – Healthcare providers are required to provide access to individuals, 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 healthcare 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 (Human Immunodeficiency Virus)/AIDS (Acquired Immune Deficiency Syndrome) Cases – Any entity providing health or medical services must make medical records and histories available to the 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.

      1. Disclosure of Identifying Information – Identifying information contained in 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, sexually transmitted 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 –  
        • Health and human services information” is any information that relates to:
          • The past, present, or future physical or mental health of an individual or family;
          • The provision of healthcare or human services, including benefits or supports, to an individual or family; or
          • The past, present, or future payment for the provision of healthcare or human services to an individual or family.
        • “Service provider” is an entity that provides health or human services to District residents pursuant to a contract, grant, or other similar agreement with an agency.
        • “Use” is the sharing, employment, application, utilization, examination, or analysis of health and human services information.
        • “Human services” are 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.
        • “Individually identifiable information” has the same meaning as it does under the Health Insurance Portability and Accountability Act of 1966 (HIPAA).

      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 Act – Any 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 of the Manual for more information regarding HIPAA.

      1. 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).
         
      2. 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).
         
      3. Civil Penalties – If an individual negligently uses or discloses health and human services information in violation of D.C. Official Code §§ 7-241 to -248, they may be fined $500 per violation. D.C. Official Code § 7-245(a). If an individual willfully uses or discloses health and human services information in violation of D.C. Official Code §§ 7-241 to -248, they may be fined $1000 per violation. D.C. Official Code § 7-245(b).
         
      4. Criminal Penalties – If an individual 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, they are 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), individuals are entitled to full and complete information about government affairs and the officials acts of public officials and employees of the District. Thus, individuals have 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 such information must be disclosed under D.C. FOIA depends upon the type of information to be disclosed. Information may be exempt from disclosure because it 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 or de-identified 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

      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 increased penalties 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 (Privacy Rule) were 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, healthcare clearinghouses, and healthcare 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 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 “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 is 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 falls within 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 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 conducting public health surveillance, public health investigations, and public health interventions.
        • An official of a foreign government agency 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;
        • An individual subject to the jurisdiction of the United States 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;
        • An individual 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 individuals 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 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).

      The Assistant Secretary for Preparedness and Response (ASPR) Technical Resources, Assistance Center, and Information Exchange (TRACIE) developed a guide to assist first responders in understanding HIPAA during a disaster. The guide addresses what protected health information can be disclosed and under what circumstances. The guide can be accessed by visiting https://files.asprtracie.hhs.gov/documents/aspr-tracie-hipaa-emergency-fact-sheet.pdf.

      The minimum necessary standard, a key protection of the Privacy Rule, is derived from confidentiality codes and practices in common use today. It is based on sound current practice that PHI should not be used or disclosed when it is not necessary to satisfy a particular purpose or carry out a function. The minimum necessary standard requires covered entities to evaluate their practices and enhance safeguards as needed to limit unnecessary or inappropriate access to and disclosure of protected health information. The Privacy Rule’s requirements for minimum necessary are designed to be sufficiently flexible to accommodate the various circumstances of any covered entity. See  https://www.hhs.gov/hipaa/for-professionals/faq/minimum-necessary/index.html.

      10.4.5    Family Educational Rights and Privacy Act

      The Family Educational Rights and Privacy Act (FERPA) protects the privacy of student education records, giving parents or eligible students more control of their education records, as well as prohibiting educational institutions form disclosing personally identifiable information in education records without written consent.  

      See www.cdc.gov/phlp/docs/hipaa-ferpa-infographic-508.pdf for a comparison of HIPAA and FERPA.

  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 healthcare 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 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. 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

      In general, scope of practice refers to the range of services that licensed practitioners are authorized to perform. In 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).

      Model 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 healthcare 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), in which the District is a participant. D.C. Official Code § 7-2332.

      The EMAC provides for interstate recognition of licenses held by professionals responding to disasters and emergencies. However, its provisions related to licensure and portability have been interpreted to apply to state government employees only, with no application to private sector workers. See Portability of Licensure and the Nation's Health. EMAC also addressed liability issues.

      See section 4.10.2 of the Manual for more information regarding EMAC.

      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 healthcare 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). A volunteer health practitioner, however, 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).

      The Mayor can declare a public health emergency if there is the occurrence of other emergency events that create an acute and immediate need for volunteer health practitioners. See section 4.5.2 of the Manual.

      Section 207: Improving All-Hazards Preparedness and Response by Public Health Emergency Volunteers of the Pandemic and All-Hazards Preparedness and Advancing Innovation Act of 2019 (PAHPIA) encourages states to both raise awareness of opportunities for public health professionals to provide medical services during emergencies and to structure their licensure programs so as to allow those professionals to provide care across state lines during an emergency.

      Section 208: Clarifying State Liability Law for Volunteer Healthcare Professionals of the PAHPIA clarifies that, under certain circumstances, voluntary medical professionals who are providing out of state care in a state that has declared a state of emergency will be subject to the liability laws of the state in which the service was provided.

      11.3.1    Provision of Services During Declared Emergencies

      During a declared emergency, 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).

      Volunteer health practitioners who provide health or veterinary services under D.C. Official Code §§ 7-2361.01 to -2361.12 are not liable for damages for acts or omissions in providing those services. D.C. Official Code § 7-2361.10(a). This liability limitation does not apply to willful misconduct or wanton, grossly negligent, reckless, or criminal conduct; an intentional tort; breach of contract; a claim asserted by a host entity or by an entity located in the District or another state which employs or uses the services of the practitioner; or an act or omission relating to the operation of a motor vehicle, a vessel, an aircraft, or other vehicle. D.C. Official Code § 7-2361.10(c). Moreover, in authorizing health services under D.C. Official Code §§ 7-2361.01 to -2361.12, the District has no liability for the act or omission of a volunteer health practitioner. D.C. Official Code § 7-2361.10(e).

      See section 5.8 of the Manual for additional information regarding liability protection.

      11.3.2    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.

      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 Center for Public Health Practice, provides summaries and full text of laws impacting volunteers who prepare for and respond to disasters.

      11.4 Crisis Standards of Care

      The standard of care generally refers to the duty owed by healthcare practitioners to their patients. Crisis standards of care (CSC) are 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.” See Guidance for Establishing Standards of Care for Use in Disaster Situations: A Letter Report. A formal declaration that CSC are in operation enables specific legal/regulatory powers and protections for healthcare providers working 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, including:

      Through these various guidance documents, the IOM identifies surge capacity issues across a continuum of care that are based on demand for healthcare services and the availability of 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 (e.g., electricity, water, parts of the supply chain) or disruption to health system infrastructure. Shortages of certain healthcare 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 accordance with Emergency Support Function (ESF) #8, Public Health and Medical Services, the Office of the Chief Medical Examiner (OCME) was designated by the Mayor as the lead agency for the District’s mass fatality management and mass fatality incident response through a statutory amendment in 2017. Under the District Response Plan (DRP), OCME coordinates all mass fatality efforts, including investigating, establishing a temporary morgue(s), coordinating transportation of remains, performing postmortem examinations and identifications, securing evidence, certifying cause and manner of death, and releasing remains. The OCME also coordinates with District area hospitals for examination and storage or release of remains and deputize hospital physicians pursuant to D.C. Official Code § 5-1404 to allow in-house hospital examinations on behalf of the Chief Medical Examiner (CME).

      12.2 Definitions

      12.2.1    Mass Fatality Incident 

      “Mass fatality incident” is a situation resulting in more human remains to be investigated, recovered, and examined than can be managed using routine District resources, or any other exceptional circumstance that results in the inability to process human remains under routine conditions. Chief Medical Examiner Amendment Act of 2017 (D.C. Law 13-172, as added Dec. 13, 2017, D.C. Law 22-33).

      12.2.2    Mass Fatality Management 

      “Mass fatality management” is the training of, and cooperation among, governmental and nongovernmental agencies, organizations, associations, and other entities to ensure the following after a mass fatality incident: 1) the proper recovery, handling, identification, transportation, tracking, storage, and certification of cause and manner of death of victims; and 2) the facilitation of access to mental and behavioral health services to family members, responders, and survivors. Chief Medical Examiner Amendment Act of 2017 (D.C. Law 13-172, as added Dec. 13, 2017, D.C. Law 22-33).

      12.3 Mass Fatality Incident Management

      12.3.1    Conditions that Exceed Routine Office of the Chief Medical Examiner Operations 

      The following conditions trigger OCME mass fatality incident operations:

      • The issuance of a public health emergency executive order by the Mayor. D.C. Official Code § 7-2304.01.
      • The issuance of a public emergency executive order by the Mayor. D.C. Official Code § 7-2304.
      • A situation resulting in more human remains to be investigated, recovered, and examined than can be managed using District resources that may include:
        • Any confirmed incident associated with five or more fatalities tied to a single event;
        • Any confirmed incident with the potential for mass fatalities (i.e., five or more deaths), such as a mass casualty incident; or
        • 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).
      • Anticipated events such as:
        • Impending or predicted natural disasters; and
        • National security special events (NSSEs), or any large gatherings greater than 100,000 persons.
      • Credible knowledge of a perceived threat as determined by law enforcement, the District of Columbia Homeland Security and Emergency Management Agency (HSEMA), DC Health or any entity with authority to issue threat alerts to the District government.
      • Events that exceed OCME’s routine operational capacity, which includes:
        • 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 (e.g., building collapse, water recovery).

      OCME has a number of resources to support its role in mass fatality incident management, including National Capital Region (NCR) assets, a Medical Examiner Transport Team (METT) that has a fleet capable of recovery and removal of decedent remains; and a Memorandum of Agreement with the Defense Health Agency, National Museum of Health and Medicine, for forensic anthropological consultation services, training, and collaboration on medical education activities.

      See section 4.5 of the Manual regarding the Mayor’s authority to declare emergencies and section 4.7.1 regarding NSSEs.

      12.3.2    Identification of Victims

      When there is a mass fatality incident, the OCME may stand up the OCME Disaster Victim Identification (DVI) Service to provide accurate and timely identification of victims for the rapid return of decedents to their legal next of kin.

      In mass fatality incidents, normal identification protocols through visual identification may not be possible or desirable. Therefore, alternate means of identification may be used, including scientific (e.g., fingerprints, radiograph comparison, DNA); and circumstantial (e.g., tattoos, scars, and clothing). Depending on the nature of the incident, OCME may request family who believe their next of kin is a victim of a mass fatality incident to complete the OCME “DNA Evidence Collection Consent Form” for collection of a DNA sample to test to aid identification of the victims.

      See Appendix 6.0 for an example of this form.

      Victim identification will also inform the order of priority for the release of remains to control decedent disposition and any District notification obligations in the event of mandatory mass burial, mass cremation, or other executive directive that affects the disposition of the decedent’s remains. D.C. Official Code § 3-413.

      12.3.3    Subpoena Authority

      The OCME has broad subpoena authority with respect to confidential medical records and relevant information from physicians, hospitals, nursing home, residential care facilities and other healthcare providers as they deem necessary for investigating deaths. D.C. Official Code § 5-1407. Use of this subpoena authority, in connection with a death investigation, may be used to help identify victims in a mass fatality incident.

      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.

      12.4 Professional Licensure and Mass Fatality Incidents

      The OCME staff includes board certified forensic pathologists who determine cause and manner of death. In mass fatality incidents, 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 sections 11.2 and 11.3 of the Manual for information regarding scope of practice, licensure portability, and volunteer health practitioners.

      12.5 Decedent Disposition and Storage

      The District has locations to accommodate burial of human remains; however, due to space limitations and locations, such sites may not be suitable for mass burial of infected or contagious remains. The District currently has no crematorium; therefore, 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. Under District law, the provision of funeral, cremation, cemetery, or other mortuary services by an individual who is authorized to provide such services under Chapter 23C of Title 7 is not prohibited while an emergency declaration is in effect. D.C. Official Code § 3-411(h).

      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 (ConOps Plan), that was consistent with CDC Guidance for Safe Handling of Human Remains of Ebola Patients in U.S. Hospitals and Mortuaries.  

      12.5.1    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 DC Health Director. 22B DCMR § 214.1. 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 hermetically sealed casket.

      See section 7.5 of the Manual regarding special reporting requirements for deaths from these diseases.

      12.6 Mutual Aid Agreements

      The District may enter into Mutual Aid Agreements with neighboring jurisdictions in the NCR for cremation and/or mass burial in the event of a mass fatality incident. These agreements are authorized through Emergency Management Assistance Compact (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. Transportation plans in that incident included details for postmortem preparation of the infectious remains.

      See section 4.10.2 for more information about EMAC.

      If a mass fatality incident overwhelms District resources, aid can be requested via the National Disaster Medical System (NDMS). See section 4.11 of the Manual.

  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 law prohibits certain activities and conditions that increase the risk of vector-borne disease, thereby creating a public health nuisance. 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.

      13.2 Vector-Borne Infectious Disease Control

      13.2.1    Definitions

      • 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).
         
      • 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).
         
      • “Abate” is 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

      Tires play a prominent role in the breeding and harboring of vectors such as mosquitoes; therefore, the following activities 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, such as mosquitoes, which 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 terrestrial, flying adult mosquitos.

      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 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 petition 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, the Mayor will issue a notice of violation to the individual alleged to have created the public health nuisance or to the owner or occupant of the property. Upon receipt of such notice, the individual 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 individual may be served: (1) by delivery by prepaid mail, return receipt requested to the owner or occupant of the property; or (2) by 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 the availability of funds, the Mayor may take action to abate health hazards that are the result of vectors. Such action may include cleanup, abatement, and preventive measures; however, the District must take action to protect human health when 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 Civil Infractions 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

      • "Rodent abatement” is removal of 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.
         
      • “Harborage” is 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 individual 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 eight inches. Rodent abatement must occur within 14 days of notice of a violation from the Mayor. If abatement does not occur, the individual who fails to abate the condition may be subject to arrest and penalties, including a misdemeanor conviction and a fine not to exceed $10,000 per incident and/or imprisonment not to exceed 90 days. D.C. Official Code § 8-2103.05.

      13.4 Annual Mosquito Control and Abatement Plan

      Annually, 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 next fiscal year to prevent and abate the infestation of mosquitoes. The plan, at a minimum, must include:

      • A determination of wards 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 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 to quarantine or humanely euthanize the affected animal, and order rabies post-exposure prophylaxis for the affected person. 22-B DCMR § 203.

      For more information on animal bite reporting requirements, see section 7.3.3 of the Manual.

      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 died in the aftermath of Katrina. Many pet owners and individuals with service animals refused evacuation orders or rescued animals they were forced to abandon. The PETS Act directs the Federal Emergency Management Agency (FEMA) administrator to develop emergency preparedness plans that include animals, as well as ensure the adequacy of state and local emergency plans. 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. D.C. Official Code § 8-1861.01.

      DC Health added an “Animal Response and Protection Annex” to the District Response Plan (DRP) that provides guidance and coordination of local resources and mutual aid agreements in response to animal care needs before, during, and after a significant natural or man-made event. In addition, Metropolitan Washington Council of Governments (MWCOG) created a “Companion Animal Evacuation and Sheltering Model Plan Template” to be used as a resource for emergency managers and animal care partners in the National Capital Region (NCR) for planning the effective evacuation, sheltering, and safe return of companion animals to their place of origin.

       

  13. AT-RISK POPULATIONS

    • 14.1 Summary

      During and after disasters, special attention is needed for at-risk individuals. Such at-risk individuals may include children, older adults, pregnant women, and individuals with disabilities. Specific issues that may arise relate to transportation, communication, access to medical care and supplies, and power-dependent equipment. Many resources are available to address these issues from the federal and District governments, as well as nonprofit organizations. The Americans with Disabilities Act’s broad anti-discrimination provisions extend to emergency preparedness, response, and recovery efforts.

      The homeless are another population at risk who should be considered during emergency preparedness, response, and recovery. There are a number of resources related to the needs of people who are homeless during and after disasters:
                          • Disaster Response for Homeless Individuals and Families: A Trauma-Informed Approach  
                          • Disaster Preparedness, Response, and Recovery and Homelessness 
                          • Disaster Planning, Response, and Recovery for Organizations Serving People Experiencing Homelessness 
                          • Disaster Preparedness, Response, and Recovery Resources 

      Three back-to-back hurricanes – Harvey, Irma, and Maria – affected more than 28 million people in 2017. Hurricane survivors aged 65 and older and those with disabilities faced particular challenges evacuating to safe shelter, accessing medicine, and obtaining recovery assistance. In June 2018, the Federal Emergency Management Agency (FEMA) began implementing a new approach to assist individuals with disabilities. The Government Accountability Office (GAO) was asked to review disaster assistance for individuals who are older or have disabilities. In May 2019, the GAO issued a report that examines: (1) challenges FEMA’s partners reported in providing disaster assistance to individuals who are older or have disabilities; (2) challenges faced by these individuals in accessing FEMA’s disaster assistance programs and actions FEMA has taken to address such challenges; and (3) the extent to which FEMA has implemented its new approach to disability integration. The GAO analyzed FEMA data and reviewed relevant federal laws, agency policy, and federal frameworks. The GAO also interviewed state, territorial, local, and nonprofit officials in Florida, Puerto Rico, Texas, and the U.S. Virgin Islands; FEMA officials at headquarters, in regional offices, and deployed to disaster sites; and officials at relevant nonprofit organizations. The GAO made seven recommendations to FEMA, including that it establish new registration questions, objectives for its new disability integration approach, and a training plan for FEMA staff. This report highlights the special needs faced by at-risk individuals.

      14.2 Definitions

      14.2.1    At-Risk Individuals 

      “At-risk individuals” are children, pregnant women, older adults and other individuals who have access or functional needs in the event of a public health emergency, as determined by the United States Secretary of Health and Human Services (HHS Secretary). 42 USC § 300hh-1(b)(4)(B).

      14.2.2    Access Based Needs 

      “Access based needs” require that resources are accessible to all individuals, such as social services, accommodations, information, transportation, medications to maintain health, etc. See www.phe.gov/Preparedness/planning/abc/Pages/at-risk.aspx.

      14.2.3    Function Based Needs

      “Function based needs” are restrictions or limitations an individual may have that requires assistance before, during, and/or after a disaster or public health emergency. See www.phe.gov/Preparedness/planning/abc/Pages/at-risk.aspx.

      14.2.4    Individual with a Disability

      “Individual with a disability” is a person who has a physical or mental impairment that substantially limits one or more major life activities. This includes people who have a record of such an impairment, even if they do not currently have a disability. It also includes individuals who do not have a disability but are regarded as having a disability. The Americans with Disabilities Act (ADA) also makes it unlawful to discriminate against a person based on that person’s association with a person with a disability. 42 USC § 12102.

      Section 303 of the Pandemic and All-Hazards Preparedness and Advancing Innovation Act of 2019 (PAHPIA) clarifies the definition of the term “at-risk individual” across the PAHPIA framework while encouraging the director of at-risk individuals to incorporate data regarding public health risks to those individuals into the existing situational awareness and biosurveillance network at the Centers for Disease Control and Prevention (CDC).

      Rx Open is a resource that helps patients find nearby open pharmacies in areas impacted by disaster. Combining multiple data deeds from the pharmaceutical industry, RX Open displays the precise location on Google Maps of open pharmacies, closed pharmacies, and those whose status is unknown. 

      14.3 Older Adults

      Older adults, particularly those over age 65, can be vulnerable during and after disasters. Older adults are more likely to have multiple chronic health conditions, limited mobility, declining vision and hearing, and physical and cognitive deficits that can negatively impact their ability to prepare for, respond to, and recover from a disaster event. Moreover, older adults may be socially isolated, often living alone. As such, it is critical to consider this population in emergency preparedness planning and response.

      There are a number of resources that address the needs of older adults during and after disasters, including:
                          • Emergency Preparedness for Older Adults
                          • Disaster Preparedness for Seniors by Seniors
                          • Ready.gov
                          • Seniors (Ready DC)
                          • How to Prepare for Emergencies - Seniors.
                          
      • How the Elderly Can Prepare for Storms
                          • Emergency Preparedness
                          • Older Adults and Disasters How to Be Prepared and Assist Others

      Section 305 of PAHPIA authorizes a National Advisory Committee on Seniors and Disasters.

      14.3.1    Age-Friendly DC

      Age-Friendly DC is an initiative of the District to coordinate community members and public agencies to make the District an easier place to grow older. There are three pillars under the Age-Friendly DC 2023 Strategic Plan, with each pillar having several domains: (1) Built Environment, (2) Changing Attitudes About Growing Older, and (3) Lifelong Health and Security. Emergency Preparedness and Resilience is a domain that falls within the third pillar, with a vision of “[a] city that ensures the readiness, immediate safety and resiliency of all residents and communities before, during and after an emergency.”

      Under the Age-Friendly DC 2023 Strategic Plan, the District will work to continue to provide uniform trainings regarding preparedness, mass care, emergency response, access and functional needs, behavioral health, CPR/first aid and resilience. In addition, the District will strive to create and assist community supported, neighborhood networks across the city that are accessible to all income levels.

      Older adults were disproportionately affected by Hurricane Katrina, with half of the deaths from adults over age 75. See Hurricane Katrina deaths, Louisiana, 2005. Hurricane Sandy had a similar impact on seniors, as 31 of the 44 New Yorkers who died due to the storm were over age 55. See https://www.carecentrix.com/blog/caring-elderly-natural-disasters. 

      In the District, in 2018, a 74-year old man was trapped for five days in his apartment before being rescued after a fire at a senior housing complex. He emerged unhurt. District officials blamed the building management company for providing an inaccurate report that all residents were safe, which led to fire officials suspending further searches of the building. See https://www.washingtonpost.com/local/public-safety/man-pulled-alive-from-rubble-of-dc-senior-complex-destroyed-in-fire/2018/09/24/59af9fa2-c00a-11e8-9005-5104e9616c21_story.html?noredirect=on. This dramatic event emphasizes the vulnerability older adults face during disasters and emergencies.

      14.3.2    HHS emPOWER

      Established in 2013 by the United States Department of Health and Human Services (HHS), Office of the Assistant Secretary for Preparedness and Response (ASPR), emPOWER assists public health officials/authorities, aging agencies, volunteer organizations, emergency managers, hospitals, first responders, electric companies, and community members in identifying at-risk individuals in their community (e.g., state, territory, county, or zip code) who are dependent on electricity to power in-home medical and assistive equipment, as well as rely on at home healthcare services. The purpose of emPOWER is to help communities easily anticipate, plan for, prepare for, and respond to the needs of at-risk individuals during incidents, emergencies, and disasters.

      In such instances, a resulting prolonged large-scale electrical outage may become a life-threatening situation to the over 2.5 million Medicare beneficiaries who rely on electricity-dependent medical and assistive equipment (e.g., ventilators, oxygen concentrators, enteral feeding machines, intravenous pumps, suction pumps, at-home dialysis machines, electric wheelchairs and scooters, and electric beds) and home healthcare services (e.g., dialysis, oxygen tank services, and home health visits). Serving at-risk individuals poses a challenge to the health care and emergency response systems during and after a disaster. Some at-risk individuals may decide to shelter in place due to limited mobility or access to transportation, potentially putting their lives at risk. Requests for access to power for medical devices or care for issues related to an electrical outage may strain health department, health care facility, and human service organization resources.

      Table 1. HHS emPOWER Community Tools

      Tool

      Description Use

      HHS emPOWER Map and REST Service

      Components in Cycle:
      Preparedness, Response, Recovery,
      Mitigation

      Access: Public

      A public, interactive map that displays the total number of at-risk electricity-dependent Medicare beneficiaries in a geographic area, down to the zip code. The emPOWER Map displays three types of data: (1) Medicare claims data; (2) Severe weather and natural hazards; and (3) Geographic information system basemaps. A Representational State Transfer Service, provided via ASPR’s GeoHEALTH platform, allows users to consume the same map data layer in their own geographic information system. The Medicare claims data are updated on a monthly basis. The weather and natural hazard data from National Oceanic and Atmospheric Administration/United States Geological Survey is updated in real or near-real time (usually hourly or daily).

      Acquiring population-level situational awareness; conducting emergency planning activities; developing emergency response systems, processes, and triggers; planning for life-saving outreach.

      HHS emPOWER Emergency Planning De-identified Dataset

      Components in Cycle:
      Preparedness Response,
      Recovery,
      Mitigation

      Access: Public Health Authorities

      A tool that provides the monthly total number of Medicare claims for select electricity-dependent medical equipment and healthcare services in a geographic area, down to the zip code. The dataset provides de-identified Medicare billing information for each type of durable medical equipment and dialysis, oxygen tank, and home healthcare service in use. Acquiring population-level situational awareness; conducting emergency planning activities; developing emergency response systems, processes, and triggers; identifying planning factors; identifying resources for emergency scenarios; and planning for life-saving outreach; cannot be used to identify individuals.

      HHS emPOWER Emergency Response Outreach Individual Dataset 

      Components in Cycle: Response,
      Recovery

      Access: Authorized Public Health Authorities upon approved official disclosure request

      A secure and restricted tool that can be officially requested by a public health authority to support lifesaving assistance and outreach public health activities in the event of an incident, emergency, or disaster. It contains limited individual-level beneficiary information and healthcare provider information.

      Activating emergency plans; deploying response assets and resources; activating emergency communications networks; conducting life-saving outreach; prior to, during, and after a public health emergency.

      Information adapted from the HHS emPOWER Fact Sheet available at https://empowermap.hhs.gov/.

      The HHS emPOWER tools and data can be used by communities to:

      • Ensure their preparedness efforts are inclusive, addressing the needs of all residents;
      • Develop and enhance emergency systems, plans, and processes to support community-based at-risk populations;
      • Support data driven decision-making regarding potential shelter and evacuation assistance needs, response asset and resource allocation, and power restoration prioritization;
      • Rapidly identify, locate, and voluntarily evacuate at-risk individuals; and
      • Help ensure continuity of care by reconnecting at-risk individuals with their healthcare providers.

      14.4 Individuals with Disabilities

      The needs of individuals with disabilities should be considered during and after emergencies with respect to accessible transportation, power-dependent equipment and assistive technology, access to medical care and supplies, communication, and emergency sheltering.

      Other District agencies should be consulted with respect to these needs, including the Mayor’s Office of Disability Rights (ODR), the District’s Homeland Security and Emergency Management Agency (HSEMA), the Emergency Transportation Working Group, Sheltering and Power Outage Working Group, High Rise Evacuation Working Group, Public Communications Working Group, and Post Emergency Canvassing Operation Working Group.

      Section 305 of PAHPIA authorizes a National Advisory Committee on Individuals with Disabilities in Disasters through 2023.

      14.4.1    Americans with Disabilities Act 

      The 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).

      Accordingly, under Title II of the ADA, state and local governments must ensure that their communications, including emergency communications, are fully accessible to people with disabilities. This includes live and recorded announcements made by local governments including Mayors and Governors’ offices.

      The ADA also requires that individuals with service animals (under the ADA) and assistance animals (under the Fair Housing Act) not be discriminated against with regard to emergency shelters. Such individuals may not be asked to remove the 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 to the ADA, the Fair Housing Act allows for assistance animals to be admitted with their handlers when emergency shelters are opened. Assistance animals are dogs, cats, and/or other domesticated animals that are not necessarily trained to perform work or tasks, but whose presence alleviates a disability-related symptom or need.

      See Service Animals and Assistance Animals in Housing and HUD-Funded Programs.

      Numerous Department of Justice and other federal agency technical assistance and resources to help state and local governments ensure that their emergency preparedness, response, and management programs are accessible to individuals with disabilities are available at https://www.ada.gov/emerg_prep.html.

      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, e.g., Brooklyn Ctr. for Independence of the Disabled et al. v. Bloomberg; Communities Actively Living Indep. and Free et al. v. City of Los Angeles. In May 2019, the District reached an historic, amicable settlement with the plaintiffs in United Spinal Ass’n et al v. District of Columbia, in which the District emphasized its recommitment to inclusive emergency response planning for individuals with disabilities and others with access and functional needs.

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

      14.4.2    Accessible Transportation 

      Accessible vehicles available throughout the District that can transport both individuals and their equipment including wheelchairs, walkers, and other equipment must be documented and tracked so that accessible transportation options are available.

      14.4.3    Accessible Emergency Communications 

      During an emergency, it is critical that individuals who are deaf or hard of hearing receive important information that may be broadcast by traditional information channels. Therefore, the District should ensure that qualified translators and interpreters are available to provide this critical information and that pertinent information be available in various formats.

      • Auxiliary Aids and Services at Post Disaster Sites: The District must have processes and procedures to offer auxiliary aids and other services at all post-disaster sites where services are available to the public. In addition to qualified sign language interpreters, other examples of auxiliary aids and services are: note-takers, computer-aided transcription services, written materials, assistive listening devices, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons videotext displays, or other effective methods of making aurally delivered materials available to individuals who are deaf and hard of hearing. See ADA.gov.
         
      • Emergency Communications: Emergency communications should be available, to the extent possible, in alternative formats including electronic, braille, and large print formats. In the event that these formats are not available, staff working during an emergency must be able to provide information and explain information directly to an individual who needs it including directional orientation and explanation of a setting and material.
         
      • Alternatives: If provision of a particular auxiliary aid or service would result in a fundamental alteration in the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or is an undue burden, i.e., significant difficulty or expense, the District must provide an alternative auxiliary aid or service, if one exists, that would not result in an alteration or such burden but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the goods, services, facilities, privileges, advantages, or accommodations offered by the District. See ADA.gov.

      The National Association of the Deaf has a Position Statement on Accessible Emergency Management for Deaf and Hard of Hearing People, available at https://www.nad.org/about-us/position-statements/position-statement-on-accessible-emergency-management-for-deaf-and-hard-of-hearing-people/.

      14.4.4    Power Outage 

      Power-dependent medical equipment such as breathing apparatuses, power wheelchairs, communication devices, etc., must have access to power strips and available backup generators. Priority of coolers or refrigerators should be given to individuals who have medication that must be stored in a cool environment.

      HHS emPOWER, discussed in section 14.3.2 of the Manual, may be a valuable resource during power outages.

      14.4.5    Emergency Sheltering 

      The District recognizes the importance of providing certain supplies and equipment in emergency shelters that are necessary to accommodate individuals with disabilities. Therefore, whenever a District-owned building is open to the public as an accessible emergency shelter, the District will make the best efforts to ensure that:

      • The facility can provide backup power and charging stations, which shall be available for use by individuals with disabilities who require power as an accommodation;
      • The facility has the capacity to store medication requiring refrigeration; and
      • Shelter staff members at the facility have access to sufficient quantities of reserve supplies for basic hygiene, mobility and personal maintenance purposes, such that individuals with disabilities can maintain the well-being and independence while accessing emergency shelter services. United Spinal, et. al., v. District of Columbia, et. al. Settlement Agreement (May 2, 2019).
      • The facility has access to temporary wall dividers and privacy screens to be used for privacy as well as to reduce sensory stimulation.

      In the event that individuals with disabilities arrive at emergency shelters that are full or unable to support their needs, the District will make the best efforts to provide accessible transportation to an alternate shelter site that is the least restrictive, integrated site able to accommodate them. United Spinal, et. al., v. District of Columbia, et. al. Settlement Agreement (May 2, 2019).  

      14.5 Children

      There are approximately 69 million children under the age of 18 in the U.S., comprising nearly 25% of the entire U.S. population. See https://www.fema.gov/children-and-disasters. Children have unique needs during and after disasters; therefore, it is essential that children are considered in emergency preparedness and planning.

      There are a number of resources that address children’s needs during and after disasters, including:
                          • Topic Collection: Pediatric/Children
                          • Pediatric Disaster Preparedness and Response Topical Collection
                          • Welcome to Ready Kids!
                          • Caring for Children in a Disaster

      14.5.1    District of Columbia Family Assistance Center Plan

      In the event of a mass fatality incident, the District will establish a Family Assistance Center (FAC) in a pre-designated location to provide emergency assistance to victims and families and to serve as a hub for information collection, sharing and human services regarding the missing or deceased in a public health emergency. This is a multi-agency operation coordinated by the D.C. Department of Human Services and supported by other District agencies, including DC Health, and volunteers. The FAC can support the collection of antemortem information from family and friends of the deceased and missing in order to reunite them, whether living or deceased. Once reunification takes place, the FAC may also coordinate and support psychological first aid and other mental health services as needed for the grieving family and friends of the deceased.

      The FAC Plan serves as an appendix to the DC Health Public Health Fatality Management Plan.

      See section 12.0 of the Manual for more information about mass fatality incidents.

      14.5.2    National Advisory Committee on Children and Disasters 

      The National Advisory Council on Children and Disasters (NACCD) was established to provide advice and consultation to the HHS Secretary and ASPR on issues related to the medical and public health needs of children as they relate to disasters. 42 U.S.C. § 300hh–10a. To fulfill this mission, the NACCD will:

      • Provide advice and consultation with respect to the activities carried out pursuant to section 2814 of the Public Health Service (PHS) Act as applicable and appropriate. 42 U.S.C. § 300hh-16;
      • Evaluate and provide input with respect to the medical and public needs of children as they relate to preparation for, response to, and recovery from all-hazards emergencies;
      • Provide advice and consultation with respect to state emergency preparedness and response activities for children, including related drills and exercises pursuant to the preparedness goals under section 2802(b) of the PHS Act. 42 U.S.C. § 300hh-1; and
      • Provide advice and recommendations to the HHS Secretary with respect to children and the medical and public health grants and cooperative agreements as applicable to preparedness and response activities authorized under Titles III and XXVIII of the PHS Act. 42 U.S.C. § 241 et seq.

      Section 305 of PAHPIA reauthorizes the National Advisory Committee on Children and Disasters through 2023. Section 304 codifies and continues the work of the Children’s Preparedness Unit at CDC to ensure the needs of children are taken into consideration when preparing for and responding to public health emergencies.

      14.5.3    Family Reunification

      There is a strong likelihood that children will be away from their families and caregivers at the time of an emergency or disaster event, as every weekday in the U.S., approximately 67 million children spend time either in school or a child care facility. In addition, children who were initially with their family or caregiver may become separated during a disaster event. It is critical to reunite these vulnerable children with their families as quickly as possible to avoid additional trauma and/or possible abuse. Family reunification is the process of ensuring that children return to the care of their parent(s) and family as quickly as possible after an emergency. Family reunification may prove challenging in the immediate aftermath of a disaster. Thus, hospitals and other healthcare facilities, as well as schools, day care centers, and similar institutions, should plan for family reunification. See https://www.cdc.gov/childrenindisasters/reunification.html

      During Hurricanes Katrina and Rita, more than 5000 children were separated from their families, with some ending up in different states. In the aftermath of these devastating hurricanes, numerous changes were made to improve family reunification, including the passage of the Post-Katrina Emergency Management Reform Act of 2006 (PKEMRA). Public Law No. 109-295. Among other things, PKEMRA mandated the creation of the National Emergency Child Locater Center (NECLC) within the National Center for Missing and Exploited Children (NCMEC) to facilitate the identification and reunification of displaced children with their families. The Unaccompanied Minor Registry (UMR), administered by the NCMEC, was created to gather and share information, and provide technical assistance to, local law enforcement and assist in the reunification of displaced children with their families.

      The National Commission on Children and Disasters was established by the Kids in Disasters Well-being, Safety, and Health Act of 2007 and charged with identifying gaps in the U.S.’ disaster planning, preparedness, response, and recovery for children. The Commission submitted its final report to the President and Congress in October 2010. Through the Commission, various federal agencies, including Federal Emergency Management Agency (FEMA), United States Department of Health and Human Services (HHS), the United States Department of Justice (DOJ) and United States Department of Education have closely collaborated to address the disaster needs of children.

  14. CENTERS FOR MEDICARE AND MEDICAID SERVICES EMERGENCY PREPAREDNESS RULE

    • 15.1 Summary

      In 2016, the Centers for Medicare and Medicaid Services (CMS) published a Final Rule entitled “Medicare and Medicaid Programs; Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers” (CMS Emergency Preparedness Rule), which established national emergency preparedness requirements for participating providers and certified suppliers (hereinafter referred to as facilities) to plan adequately for both natural and man-made disasters, and coordinate with federal, state, tribal, regional, and local emergency preparedness systems. The regulation became effective on November 16, 2016, with compliance required on November 15, 2017. Thus, healthcare systems must be involved in emergency preparedness, response, and recovery activities.

      The CMS Emergency Preparedness Rule applies to 17 categories of Medicare and Medicaid providers and suppliers as Conditions of Participation and Conditions for Coverage for CMS. Providers and suppliers must meet four mandated core elements: (1) risk assessment and emergency plan; (2) policies and procedures; (3) communication plan; and (4) training and testing. In addition, the CMS Emergency Preparedness Rule includes specific requirements that vary based on provider or supplier type.

      15.2 National Emergency Preparedness Requirements

      The Centers for Medicare and Medicaid Services (CMS) promulgated the “Medicare and Medicaid Programs; Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers” Final Rule (CMS Emergency Preparedness Rule), to establish national emergency preparedness requirements for facilities to plan adequately for disasters and coordinate with federal, state, tribal, regional, and local emergency preparedness systems. These national requirements are designed to assist facilities with adequately preparing to meet the needs of patients, clients, residents, and participants during disasters and emergencies, and also provide consistent requirements across types of facilities.

      The goals of the CMS Emergency Preparedness Rule are to:

      • Safeguard human resources, maintain business continuity, and protect physical resources;
      • Establish consistent emergency preparedness requirements across facilities; and
      • Establish a more coordinated response to natural and man-made disasters.

      A number of resources are available to assist facilities with complying with the CMS Emergency Preparedness Rule, including https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertEmergPrep/Emergency-Prep-Rule.html and https://asprtracie.hhs.gov/cmsrule.

      On September 20, 2018, CMS issued a proposed rule to revise the applicable conditions of participation for facilities and conditions for coverage as part of its efforts to reduce regulatory burden in accordance with Executive Order 13771 “Reducing Regulation and Controlling Regulatory Costs” (January 30, 2017). Significant changes to the CMS Emergency Preparedness Rule were proposed, including changing the required updates and training to be every two years rather than annually. Specific changes by facility type were also proposed. The proposed changes are designed to “simplify the emergency preparedness requirements, eliminate duplicative requirements, and/or reduce the frequency with which providers and suppliers would need to perform certain required activities.”

      15.3 Applicable Facilities

      The CMS Emergency Preparedness Rule applies to 17 categories of Medicare and Medicaid facilities. Eight are inpatient facilities:

      • Hospitals
      • Critical access hospitals
      • Religious nonmedical healthcare institutions
      • Psychiatric residential treatment facilities
      • Long-term care facilities
      • Intermediate care facilities for individuals with intellectual disabilities
      • Hospices
      • Transplant centers

      Ten facilities are outpatient facilities:

      • Ambulatory surgical centers
      • Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services
      • Community mental health centers
      • Comprehensive outpatient rehabilitation facilities
      • End-stage renal disease facilities
      • Rural health clinics and federally qualified health centers
      • Home health agencies
      • Hospices (hospices are also considered inpatient facilities so are listed twice)
      • Organ procurement organizations
      • Programs of all-inclusive care for the elderly

      Table 2a. Affected Provider and Supplier Types (updated January 24, 2018)

      Inpatient Facility Type Final Rule Reference
      Critical Access Hospitals Section II. N
      Hospices Section II. F
      Hospitals Section II. C
      Intermediate Care Facilities for Individuals with Intellectual Disabilities Section II. D
      Long Term Care Section II. J
      Psychiatric Residential Treatment Facilities Section II. G
      Religious Nonmedical Healthcare Institutions Section II. D
      Transplant Centers Section II. I

      Table 2b. Affected Provider and Supplier Types (updated January 24, 2018)

      Outpatient Facility Type Final Rule Reference
      Ambulatory Surgical Centers Section II. E
      Clinics, Rehabilitation Agencies, and Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services Section II. O
      Community Mental Health Centers Section II. P
      Comprehensive Outpatient Rehabilitation Facilities Section II. M
      End-Stage Renal Disease Facilities Section II. S
      Home Health Agencies Section II. L
      Hospices Section II. F
      Organ Procurement Organizations Section II. Q
      Programs of All Inclusive Care for the Elderly Section II. H
      Rural Health Clinics and Federally Qualified Health Centers Section II. R

      Tables reproduced from CMS and Disasters: Resources at Your Fingertips https://asprtracie.s3.amazonaws.com/documents/cms-and-disasters-resources-at-your-fingertips.pdf.

      Each facility has its own set of emergency preparedness regulations incorporated into its Conditions of Participation (CoP) and Conditions for Coverage (CfC).

      CMS develops CoPs and CfCs that healthcare organizations must meet in order to begin and continue participating in the Medicare and Medicaid programs. These health and safety standards are the foundation for improving quality and protecting the health and safety of Medicare and Medicaid beneficiaries. More information about CoPs and CfCs can be found at https://www.cms.gov/Regulations-and-Guidance/Legislation/CFCsAndCoPs/index.html?redirect=/CFCsAndCoPs.

      15.4 Four Mandated Elements

      The CMS Emergency Preparedness Rule includes four mandated core elements, with specific requirements that vary based on type of facility:

      • Risk assessment and emergency planning;
      • Policies and procedures;
      • Communications plan; and
      • Training and testing.

      Specific requirements for each type of facility is beyond the scope of the Manual. CMS created a table that provides an overview of the CMS Emergency Preparedness Rule by provider type, available at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertEmergPrep/Downloads/EP-Rule-Table-Provider-Type.pdf.

      15.4.1    Risk Assessment and Emergency Plan

      Each facility must develop an emergency plan based upon a facility and community-based risk assessment using an “all-hazards” approach that provides an integrated system for emergency planning focused on capacities and capabilities. The emergency plan should be reviewed and updated at least annually. The risk assessment should include:

      • Hazards likely in geographic area;
      • Care-related emergencies;
      • Equipment and power failures;
      • Interruption in communications, including cyber-attacks;
      • Loss of all or a portion of facility; and
      • Loss of all or a portion of supplies.

      See, e.g., CMS Core Emergency Preparedness Rule Elements

      15.4.2    Policies and Procedures 

      Each facility must develop and implement policies and procedures based upon the emergency plan and risk assessment that are reviewed and updated at least annually. Policies and procedures must comply with federal and state laws and address a range of issues, which may include subsistence needs, evacuation plans, sheltering in place, and tracking patients and staff during an emergency.

      See, e.g., CMS Core Emergency Preparedness Rule Elements

      15.4.3    Communication Plan

      Each facility must develop and maintain an emergency preparedness communication plan that complies with federal, state, and local laws and provides a system to contact staff, including patients’ physicians and other necessary persons. Patient care must be coordinated within the facility, across healthcare providers, and with state and local public health departments and emergency management systems to protect patient health and safety in the event of a disaster. The communication plan should be reviewed and updated annually.

      See, e.g., CMS Core Emergency Preparedness Rule Elements

      15.4.4    Training and Testing 

      Each facility must develop and maintain training and testing programs, including initial training in policies and procedures, which comply with federal, state, and local laws. Facility staff must demonstrate knowledge of emergency procedures and be provided with training at least annually. Facilities must conduct drills and exercises to test the emergency plan or participate in an actual incident that tests the plan. The training and testing program should be reviewed and updated annually. See, e.g., CMS Core Emergency Preparedness Rule Elements

      15.5 Enforcement and Penalties for Non-Compliance

      State survey agencies are responsible for evaluating compliance with the CMS Emergency Preparedness Rule. If a facility is found to be non-compliant with the requirements of the CMS Emergency Preparedness Rule, state survey agencies will follow the same process regarding noncompliance as with any other CoP and CfC. Non-compliance with CMS Emergency Preparedness Rule requirements may lead to termination of the facility’s participation agreement with CMS. See https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-17-29.pdf.These surveys are initiated in conjunction with regularly scheduled survey cycles.

      15.6 Section 1135 Waivers and the CMS Emergency Preparedness Rule

      Under section 1135 of the Social Security Act (SSA), the United States Secretary of Health and Human Services (HHS Secretary) may temporarily waive or modify certain federal requirements to ensure that sufficient healthcare items and services are available to meet the needs of individuals enrolled in SSA programs in the emergency area and during the emergency time (absent any determination of fraud or abuse).

      Under the CMS Emergency Preparedness Rule, inpatient facilities are required to have policies and procedures in place to address the facility’s role in a section 1135 waiver in the provision of care and treatment at an alternate care site identified by emergency management officials. See, e.g., 42 C.F.R. § 482.15(b)(8).

      Additional information regarding section 1135 waivers, including required elements, can be found at section 4.3 of the Manual and https://www.phe.gov/Preparedness/legal/Pages/1135-waivers.aspx.

  15. EMERGING AND RE-EMERGING INFECTIOUS DISEASES

    • 16.1 Summary

      Infectious diseases have posed threats to communities for centuries, including the appearance of new infectious disease threats. Diseases that were once major threats, but had declined in prevalence, are re-emerging as significant concerns. Despite advances in technology to prevent, detect, and treat infectious diseases, the ease of global travel and interconnectedness across continents adds new dimensions to disease control. Coronavirus Disease 2019 (COVID-19), Ebola Virus Disease (EVD), and measles are three examples of infectious diseases of concern in the modern era, although other diseases such as chikungunya, pertussis, avian influenza, and polio are also concerning. Disease reporting and surveillance are vitally important to prevent outbreaks of emerging and re-emerging disease.

      16.2 Definitions

      16.2.1    Emerging Infectious Diseases 

      Emerging infectious diseases are diseases that have not occurred in humans before, have occurred previously but affected only small numbers of people in isolated places, or have occurred throughout human history but have only recently been recognized as distinct diseases due to an infectious agent. See National Institutes of Health Understanding Emerging and Re-emerging Infectious Diseases. Examples of emerging diseases include Coronavirus Disease 2019 (COVID-19), Ebola Virus Disease (EVD), avian influenza, chikungunya, Zika, severe acute respiratory syndrome (SARS), and Middle East respiratory syndrome (MERS).

      Disease reporting, surveillance, and contact tracing are key components to preventing, detecting, and treating emerging and re-emerging diseases. It may be necessary to detain individuals to prevent the spread of disease or declare public health emergencies, and mass fatalities may occur. See sections 4.0, 7.0, 8.0, 12.0 and 17.0 of the Manual for more information about these critical topics.

      There are certain restrictions related to travel within, and entry into ,the U.S. with respect to particular diseases. See sections 17.5, 17.6, and 17.7 of the Manual for more information.

      16.2.2    Re-emerging Infectious Diseases 

      Re-emerging infectious diseases are diseases that once were major health problems globally or in a particular country, but then declined dramatically, and are again becoming health problems for a significant proportion of the population. See National Institutes of Health Understanding Emerging and Re-emerging Infectious Diseases. Examples of re-emerging diseases include measles and tuberculosis.

      Due to the complex and dynamic nature of many infectious diseases, the distinction between “emerging” and “re-emerging” can be difficult to determine, which can lead to different classifications by infectious disease experts. See Emerging Infectious Diseases: Threats to Human Health and Global Stability.

      16.3 Factors Influencing Emergence and Re-emergence

      World Health Organization (WHO) warned in a 2007 report that infectious diseases are emerging at an unprecedented rate. Since the 1970s, approximately 40 infectious diseases have been discovered, including COVID-19, SARS, MERS, EVD, avian and swine influenza, and Zika. As the world becomes more interconnected through globalization and increased travel over longer distances, the potential for novel diseases to emerge or old diseases to re-emerge increases dramatically. In addition, increased population density exacerbates this concern.

      Many factors are associated with the emergence of new infectious diseases or the re-emergence of an old one. Such factors include:

      • The evolution of pathogens over time;
      • Change in human migration;
      • Population growth and expansion into new geographic areas;
      • Climate change;
      • Wars and conflict;
      • Antimicrobial resistance;
      • Decline in vaccination coverage;
      • Destruction of the environment;
      • Increased contact with wild animals;
      • Increased travel;
      • Weak health systems;
      • Delayed emergency response; and
      • Inadequate public health infrastructure. 

      See Baylor College of Medicine Emerging infectious Diseases.

      As the nation’s capital, the District is a hub of international travel and often hosts international summits, conferences, and meetings; thus, emerging and re-emerging diseases are of particular concern to the District.

      16.4 Coronavirus Disease 2019

      As the new decade began, a novel coronavirus spread around the globe, originating in Wuhan, China. Extraordinary public health measures were employed by governments across the world, including stay-at-home orders and closure of schools and non-essential businesses; still, by May 8, 2020, nearly 4 million cases were reported by global authorities, with approximately 276,000 deaths worldwide. As of May 28, 2020, there were more than 100,000 COVID-19 related deaths in the U.S.

      The COVID-19 pandemic offers a prime illustration of the importance of all facets of preparedness. Here we include a brief overview of the disease caused by the novel coronavirus, how the pandemic unfolded, and legal aspects of the public health emergency response at the federal and District levels as of May 13, 2020.

      As the situation was unfolding at the time of this writing, it is critical to ensure that information regarding governmental legal actions and guidance related to COVID-19 are the most up to date.

      Information about the District’s response to the COVID-19 pandemic can be found at https://coronavirus.dc.gov/. The Centers for Disease Control and Prevention (CDC) provides a comprehensive website related to the COVID-19 pandemic at www.cdc.gov/coronavirus/2019-ncov/index.html.

      16.4.1    Transmission

      Coronaviruses are a large family of viruses, some causing illness in people and others circulating among animals, including camels, cats, and bats. Rarely, animal coronaviruses can spread to people. SARS-CoV-2, the virus that causes COVID-19, is the seventh coronavirus known to infect humans. Three (SARS-CoV, MERS-CoV and SARS-CoV-2) can cause severe respiratory illness and can be fatal; the other four produce mild, cold-like symptoms. SARS-CoV-2 likely originated in an animal and spread to humans, with bats currently thought to be the most likely reservoir host of the progenitor virus. See The proximal origin of SARS-CoV-2.

      COVID-19 is spread person to person, between people who are in close contact with one another (within about 6 feet). It is transmitted through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. It may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes, but this is not thought to be the primary mode of transmission. Coronaviruses on surfaces and objects naturally die within hours to days. Warmer temperatures and exposure to sunlight may reduce the time the virus survives on surfaces and objects. Emerging science suggests that aerosolized virus may also be transmissible, although this route of infection requires further study. See Aerodynamic analysis of SARS-CoV-2 in two Wuhan hospitals; Reopening Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools, and Homes.

      COVID-19 seems to be spreading easily and sustainably in the community in affected areas. Community spread means people have been infected with the virus in a geographic area, including some who are not sure how or where they became infected. COVID-19 appears to spread more easily than influenza but is less contagious than measles. See Centers for Disease Control and Prevention How COVID-19 Spreads.

      16.4.2    Symptoms

      The incubation period of COVID-19 is 2-14 days, with the median time of 4-5 days from exposure to onset of symptoms. Individuals with COVID-19 report a wide range of symptoms. The most prevalent symptoms are cough and shortness of breath or difficulty breathing. People also report a combination of the following: fever, chills, repeated shaking with chills, muscle pain, headache, sore throat, and loss of taste or smell. Other less common symptoms that have been reported include gastrointestinal symptoms like nausea, vomiting, or diarrhea. Reported illnesses have ranged from people with no or mild symptoms to people being severely ill with pneumonia and other complications. People are thought to be most contagious when they are most symptomatic (i.e., the sickest), although there have been reports of transmission before an infected person has symptoms and by infected individuals with no symptoms. See Centers for Disease Control and Prevention Symptoms of Coronavirus; Centers for Disease Control and Prevention Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease.

      Children infected by COVID-19 generally experience milder illness than adults: relatively few are hospitalized and they experience fever, cough, or shortness of breath less frequently than adults. However, severe outcomes, including three deaths as of April 2, 2020, have been reported among pediatric COVID-19 case in the U.S. See Centers for Disease Control and Prevention Coronavirus Disease 2019 in Children — United States, February 12–April 2, 2020. On April 27, 2020, an alert circulated from the United Kingdom about an emerging COVID-19-related syndrome in children, now being called “Pediatric Multi-System Inflammatory Syndrome Potentially Associated with COVID-19.” Temporally associated with COVID-19, the rare syndrome is characterized by persistent fever and features of Kawasaki disease and/or toxic shock syndrome, with abdominal symptoms being common. To date, most infected children have recovered. See COVID-19 and a serious inflammatory syndrome in children: Unpacking recent warnings.

      Cases of this rare syndrome have been reported in children in Europe and the U.S.; as of May 11, 2020, 93 cases have been reported in New York State, 39 of which were in New York City (NYC), with at least three deaths believed to have been linked to the emerging syndrome. See Coronavirus News: 93 children in NY diagnosed with inflammatory syndrome possibly linked to COVID-19.

      Based on currently available information and clinical expertise, older adults and people of any age who have serious underlying medical conditions may be at higher risk for severe illness from COVID-19. Based on age and living arrangements, individuals aged 65 years and older and people who live in a nursing home or long-term care facility are at increased risk. Medical conditions that may increase the risk of COVID-19 include: individuals with chronic lung disease or moderate to severe asthma, serious heart conditions, or a compromised immune system (e.g., due to cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled Human Immunodeficiency Virus (HIV), and prolonged use of immune-weakening medications). People of any age with severe obesity (BMI>40) or underlying, poorly controlled medical conditions, such as diabetes, renal failure, or liver disease, might also be at higher risk. See Centers for Disease Control and Prevention People Who Are at Higher Risk for Severe Illness.

      Based on current science, pregnant women seem to have the same risk of COVID-19 as those who are not pregnant. Because pregnancy causes changes in their bodies that may increase the risk of some infections, it is always important for pregnant women to try to protect themselves from illness whenever possible, including potential exposure to COVID-19. See Centers for Disease Control and Prevention Pregnancy and Breastfeeding.

      16.4.3    Testing

      Although there is currently no United States Food and Drug Administration (FDA)-approved test for SARS-CoV-2, the FDA has issued several emergency use authorizations (EUAs) related to testing. There are two types of tests: molecular and antibody. The molecular tests are nucleic acid amplification tests that detect the genetic material of the virus. Molecular tests analyze the virus in respiratory samples typically collected from the nose or throat with a special swab. They determine whether an individual is currently infected and can be used to directly diagnose COVID-19. The FDA has issued numerous EUAs for molecular tests, which are thought to be highly accurate.

      Antibody tests are serology tests to detect the body’s immune response to the infection; they do not detect the actual virus but rather antibodies in the blood with which the body is fighting the infection. However, antibodies may not be detected in the early days of an infection, causing the test to be a false negative. Antibody tests can also give a false positive if a person has antibodies from a previous infection by a different coronavirus. Therefore, antibody tests cannot be used in isolation to diagnose COVID-19. The FDA has also issued EUAs for antibody tests. The evidence regarding the effectiveness of antibody testing is evolving, so their accuracy or utility has not yet been definitively established. See United States Food and Drug Administration Medical Devices Including Tests for COVID-19; Centers for Disease Control and Prevention Testing for COVID-19.

      See section 5.7 of the Manual and United States Food and Drug Administration Emergency Use Authorizations for more information about EUAs.

      COVID-19 testing differs by location. CDC has issued guidance for who should be tested; however, decisions about testing are made by state and local health departments or healthcare providers. As of May 8, 2020 the total number of public health laboratories (PHL) that have completed verification and are offering testing is 97 – at least one PHL in all fifty states plus the District, Guam, Puerto Rico, and the U.S. Virgin Islands. The majority of testing, however, is being done by the private sector. See Centers for Disease Control and Prevention U.S. Viral Testing Data; The Association of Public Health Laboratories.

      In the U.S., CDC is typically the first developer of a diagnostic test to be distributed to their national network of public health labs for used in the U.S. to combat an emerging health threat. See United States Food and Drug Administration Coronavirus (COVID-19) Update: FDA expedites review of diagnostic tests to combat COVID-19. Therefore, despite WHO having listed two COVID-19 diagnostic tests for emergency use, CDC developed its own test that could identify COVID-19 and related viruses. See Centers for Disease Control and Prevention Lab Advisory: Reminder: COVID-19 Diagnostic Testing. Issues with false positive tests by, and potential contamination of, test kits distributed by CDC, compounded by the lack of a national strategy, caused a delay in distribution of test kits and limited access to testing across the U.S. Adequate access to testing has yet to be resolved. See Key Missteps at the CDC Have Set Back Its Ability to Detect the Potential Spread of Coronavirus; Officials Say C.D.C. Errors Caused Testing Delays; Contamination at CDC lab delayed rollout of coronavirus tests; Thousands of coronavirus tests are going unused in US labs; Contamination at CDC lab delayed rollout of coronavirus tests.

      CDC recommends that clinicians use their judgment to determine if a patient has signs and symptoms compatible with COVID-19 and whether the patient should be tested. Because there is a national shortage of testing supplies and reagents, CDC has developed suggested priorities for who should be tested. High priority individuals include hospitalized patients with symptoms, workers in healthcare facilities or congregate living setting and first responders with symptoms, and residents in long-term care facilities or other congregate living situations, such as prisons and shelters, with symptoms. Priority individuals for testing include persons with symptoms of potential COVID-19 infection and persons without symptoms who are prioritized by health departments or clinicians for any reason. See Centers for Disease Control and Prevention Evaluating and Testing Persons for Coronavirus Disease 2019.

      In the District, testing is available through the District PHL, commercial labs, and some hospital-based clinical labs. DC Health has established its own testing prioritization scheme, most recently updated on May 7, 2020. COVID-19 testing priorities in D.C. are as follows:

      • High Priority: Symptomatic hospitalized patients; workers in healthcare facilities, congregate living settings, and first responders with symptoms or history of close contact exposure; residents in long-term care facilities or other congregate living settings with symptoms or history of close contact exposure.
      • Priority: Persons with symptoms of potential COVID-19 infections, including fever, cough, shortness of breath, chills, muscle pain, loss of taste or smell, vomiting or diarrhea, and/or sore throat; asymptomatic persons who are greater than age 65, have underlying conditions, or are critical infrastructure workers; household contacts of laboratory-confirmed COVID-19 patients.
      • Non-Priority: Individuals without symptoms not listed above.

      See DC Health, Health Notice for District of Columbia Health Care Providers.

      Testing requirements and procedures continue to be modified based on additional availability of resources, as well as the evolution of our understanding of SARS-CoV-2 and COVID-19.

      DC Health has also issued guidance on infection control and specimen collection, including conservation of Personal Protective Equipment (PPE) and practices specific to skilled nursing facilities. See DC Health, Health Notices; DC Health March 26, 2020 - COVID-19 DC Health Guidance for Conservation of Personal Protective Equipment; DC Health March 13, 2020 - DC Health Infection Control Recommendations for Preparedness & Management of COVID-19 in Skilled Nursing Facilities; DC Health Health Notice for District of Columbia Healthcare Providers Coronavirus (COVID-19): Updated Priorities for Testing Patients with Suspected COVID-19 Infection and Updated Prioritization of Contact Tracing by DC Health.

      On April 21, 2020 the FDA authorized the first diagnostic test for home collection of COVID-19 testing specimens under an EUA. The re-issued EUA permits testing of samples self-collected outside of clinical settings using the LabCorp COVID-19 RT-PCR test, which are then mailed to the laboratory. Home-collection kits are only authorized for this specific lab and test and are not yet publicly available. See United States Food and Drug Administration Coronavirus (COVID-19) Update: FDA Authorizes First Test for Patient At-Home Sample Collection.

      16.4.4    Contact Tracing 

      Contact tracing is a core disease control measure utilized by health departments in any outbreak investigation. After defining a “case” based on what is known about the disease, infected individuals are interviewed to determine all individuals with whom they had contact during the period in which they were likely to have been infectious. Public health officials then educate all of the potentially exposed persons about their risk of infection (without revealing the personal information of the initially infected person), what they should do to separate themselves from others who are not exposed, how to monitor themselves for illness, and the possibility that they could spread the infection to others even if they themselves do not feel ill.

      In the case of COVID-19, contacts are encouraged to stay at home and practice social distancing from others (at least 6 feet) until 14 days after their last exposure. They are advised to monitor themselves by checking their temperature twice daily and watching for cough or shortness of breath. The extent of contract tracing and follow-up being done by health departments varies, depending on case load and capacity. To the extent possible, public health staff check in with contacts to make sure they are self-monitoring and have not developed symptoms. Contacts who develop symptoms should immediately isolate themselves and contact their healthcare provider. If they develop severe symptoms, such as trouble breathing, they should get emergency medical care immediately. See Centers for Disease Control and Prevention Contact Tracing; Part of a Multipronged Approach to Fight the COVID-19 Pandemic.

      Due to the community spread of COVID-19 in the District, DC Health has been conducting contact tracing in specific situations, e.g., outbreaks or persons working in occupations at high risk for spreading COVID-19. Therefore, DC Health recommends that clinicians who order COVID-19 tests be prepared to advise patients on home-quarantine while test results are pending and home-isolation when a patient’s tests are positive. DC Health provides additional guidance for persons who test positive, their contacts and household members. See DC Health March 19, 2020 - Guidance for Persons who Tested Positive for COVID-19; DC Health March 19, 2020 - Guidance for Contacts of a Person Confirmed to have COVID-19DC Health March 19, 2020 - Guidelines for Household Members, Intimate Partners, and Caregivers (in a Non-healthcare Setting) of a Person Confirmed to have COVID-19; DC Health, Health Notice for District of Columbia Healthcare Providers Coronavirus (COVID-19): Updated Priorities for Testing Patients with Suspected COVID-19 Infection and Updated Prioritization of Contact Tracing by DC Health.

      As the District reopens, contact tracing requirements and procedures continue to be modified based on additional availability of resources, as well as the evolution of our understanding of SARS-CoV-2 and COVID-19.

      16.4.5    Treatment and Vaccines

      Currently, there are no FDA-approved drugs to treat COVID-19. Several dozen potential treatments are now in development, some utilizing existing medications for other diseases and conditions and others that are newly developed medications. On May 1, 2020, the FDA issued its first EUA for the antiviral drug remdesivir for the treatment of confirmed or suspected cases in adults or children. It is administered intravenously by healthcare providers to patients hospitalized with severe disease. See United States Food and Drug Administration Coronavirus (COVID-19) Update: FDA Issues Emergency Use Authorization for Potential COVID-19 Treatment.

      On May 9, 2020 the United States Department of Health and Human Services (HHS) announced an allocation plan for remdesivir donated by Gilead Sciences, Inc., to the U.S. for use in areas of the country most impacted by the pandemic. Cases containing 40 vials of the drug were sent to seven states for distribution by their state health department: Indiana (38), Massachusetts (117), New Jersey (94), New York (565), Rhode Island (30), Tennessee (7), and Virginia (33). A second allocation went to Connecticut (30 cases), Illinois (140), Iowa (10), Maryland (30), Michigan (40), and New Jersey (110). See United States Department of Health and Human Services HHS announces shipments of donated remdesivir for hospitalized patients with COVID-19. Other allocations have been distributed since, including to the District.

      On May 1, 2020 the FDA issued guidance for healthcare providers and investigators on the administration and study of investigational convalescent plasma collected from individuals who have recovered from COVID-19. Because COVID-19 convalescent plasma is not yet FDA-approved, its use is restricted to clinical trials, expanded access treatment protocols, and single patient emergency use investigational new drug applications. Patient eligibility criteria include laboratory confirmation of COVID-19, severe or immediately life-threatening disease, and informed consent. See United States Food and Drug Administration Recommendations for Investigational COVID-19 Convalescent Plasma.

      Non-experimental treatment is largely symptomatic. Many persons with mild to moderate symptoms do not require hospitalization and can manage their illness at home. Persons with more severe symptoms may require hospitalization. Treatment of hospitalized patients involves supportive management of the most common complications of COVID-19, including pneumonia or other respiratory illness, organ failure, and secondary infections. See Centers for Disease Control and Prevention Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19).

      As of May 2020, there is no FDA-approved vaccine to prevent COVID-19. Multiple human clinical trials are currently underway around the world. The first National Institutes of Health (NIH)-funded, phase one trial in the U.S. started on March 19, 2020 at Kaiser Permanente Washington Health Research Institute using the experimental vaccine mRNA-1273. Researchers at Oxford University estimate that the vaccine being tested in their clinical trial, ChAdOx1 nCoV-19, could be available as early as fall, 2020. However, Dr. Anthony Fauci, Director of the NIH National Institute of Allergy and Infectious Disease, has told reporters that summer 2021 was his prediction on the availability of a vaccine, as it would take 12-18 months, to develop, test, and approve a vaccine for public use. See United States Food and Drug Administration Vaccines, Biologics, Human Tissues, and Blood ProductsNational Institutes of Health NIH clinical trial of investigational vaccine for COVID-19 begins; Oxford University’s timeline for a COVID-19 vaccine is shorter than previous estimates; When will a COVID-19 vaccine be ready?.

      16.4.6    Prevention

      The best way to prevent becoming infected with COVID-19 is to avoid being exposed to the virus. CDC recommends actions individuals should take to protect themselves and others. Self-protection includes activities such as regular handwashing, use of hand sanitizer containing at least 60 percent alcohol, avoiding touching one’s eyes, nose, or mouth with unwashed hands, and avoiding close contact with others (i.e., social distancing). Actions that individuals can take to protect others include staying home when sick (except to seek medical care), covering coughs and sneezes, mask usage when around others, especially in public spaces, and regular cleaning and disinfection of surfaces. See Centers for Disease Control and Prevention Prevent Getting Sick.

      16.4.7    Centers for Disease Control and Prevention Guidance for United States Hospitals

      CDC has issued specific guidance for infection control and use of PPE for direct healthcare providers, first responders, and healthcare facilities, as well as a Comprehensive Hospital Preparedness Checklist for COVID-19. The checklist advises that all hospitals should be prepared to deal with COVID-19 patients and ensure that their staff are trained, equipped, and capable of practices needed to prevent the spread of disease, identify and isolate potential COVID-19 patients and inform appropriate authorities, provide care for infected patients as part of routine operations, be prepared to expand capacity in the event of disease outbreaks while maintaining care for non-COVID-19 patients, monitor and manage exposed healthcare personnel, and communicate effectively within the facility and externally about COVID-19. 

      16.4.8    Select Global Timeline of the COVID-19 Pandemic

      On December 31, 2019, WHO was informed of a pneumonia of unknown cause, detected in the city of Wuhan in Hubei province, China, appearing to originate from the Huanan Seafood Market. On January 7, 2020, Chinese authorities identified the causative agent to be a novel coronavirus, one not previously identified as causing disease in humans, which was named SARS-CoV-2. China recorded its first death from SARS-CoV-2 on January 11, 2020. The first case outside of China was confirmed on January 13, 2020 in Thailand. The first case in the U.S. was reported on January 20, 2020 in a 35-year-old man in Snohomish County, Washington, who had recently returned from Wuhan. On January 20, 2020, Wuhan was placed under quarantine, with the entirety of Hubei province under quarantine within a few days. On January 24, 2020, the first cases were reported in Europe. WHO declared a Public Health Emergency of International Concern (PHEIC) on January 30, 2020. On January 31, 2020, President Trump banned foreign nationals from entering the U.S. if they had been in China within the prior two weeks.

      The first death outside China was recorded in the Philippines on February 2, 2020. The death toll in China surpassed that of the 2002-2003 SARS epidemic on February 9, 2020, with 811 deaths recorded. WHO announced that the disease caused by SARS-CoV-2 would be named Coronavirus Disease 2019, or COVID-19, on February 11, 2020. South Korea saw a spike of COVID-19 cases in mid-February, reporting its first death on February 20, 2020. Iran reported its first cases on February 19, 2020, with Italy following on February 21, 2020. California reported the first case in the U.S. with no clear source of exposure, indicating community spread, on February 26, 2020. The U.S. reported its first death on February 29, 2020.

      The Spanish outbreak began on March 3, 2020. The District announced its first case of COVID-19 on March 7, 2020. On March 8, 2020, Italy placed all 60 million residents on lockdown. WHO declared the outbreak a pandemic on March 11, 2020; President Trump banned all travel from 26 European countries on the same day. A national emergency was declared in the U.S. on March 13, 2020. On March 19, 2020, China reported no new locally spread infections for the first time since the pandemic began. The District announced its first COVID-19 death on March 20, 2020. NYC confirmed 21,000 COVID-19 cases on March 23, 2020, making it the largest epicenter of the outbreak in the U.S. On March 26, 2020, the total confirmed cases in the U.S. reached 82,404, the highest in the world, surpassing both China and Italy. That same day, the G20 Extraordinary Virtual Leaders’ Summit on COVID-19 was held to advance a coordinated global response to the COVID-19 pandemic and its human and economic implications. By the end of March, more than one-third of humankind was under some form of lockdown.

      One million COVID-19 cases were reported around the world by April 2, 2020; the global death toll surpassed 100,000 on April 10, 2020. By April 15, 2020, the global number of COVID-19 cases surpassed two million. On April 21, 2020, California officials announced that a person had died from COVID-19 on February 6, 2020, three weeks earlier than what authorities had thought had been the first U.S. COVID-19 death. On April 22, 2020, the U.S. reported the highest single-day death toll for any country, more than 2,600.

      The pandemic's epicenter moved to South America by May 2020. By May 8, 2020, nearly 4 million cases were reported by global authorities, with approximately 276,000 deaths worldwide. As of May 28, 2020, there were more than 100,000 COVID-19 related deaths in the U.S.

      See World Health Organization Coronavirus disease (COVID-19) Pandemic;   Centers for Disease Control and Prevention Coronavirus (COVID-19); Johns Hopkins University & Medicine Coronavirus Resource Center; New York Times.

      16.4.9    Select Federal Response Actions to the COVID-19 Pandemic 

      The Centers for Medicare and Medicaid Services (CMS) issued a number of waivers and guidance documents in response to the COVID-19 pandemic. See Centers for Medicare and Medicaid Services Coronavirus Waivers & Flexibilities for more information.

      The HHS Office for Civil Rights (HHS OCR) provided Bulletins, Notifications of Enforcement Discretion, Guidance, and Resources to help explain how patient health information may be used and disclosed in response to the COVID-19 nationwide public health emergency. See United States Department of Health and Human Services HIPAA and COVID-19.

      CDC issued interim final rules and took other actions related to its isolation and quarantine authority in response to the COVID-19 pandemic. See https://www.cdc.gov/quarantine/aboutlawsregulationsquarantineisolation.html for more information.

      The FDA took a number of actions in response to the COVID-19 pandemic. See https://www.fda.gov/emergency-preparedness-and-response/counterterrorism-and-emerging-threats/coronavirus-disease-2019-covid-19 for more information.

      1. Emergency Declarations 

      On January 31, 2020, United States Secretary of Health and Human Services (HHS Secretary) Azar declared that a public health emergency under section 319 of the Public Health Service Act existed nationwide since January 27, 2020 due to COVID-19. The declaration of public health emergency was renewed on April 21, 2020.

      President Trump declared dual emergencies, effective March 1, 2020, on March 13, 2020 under the National Emergencies Act (NEA) and section 501(b) the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (Stafford Act), which allows the federal government to declare an emergency without a governor’s request. See Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak.

      All 50 states, the District of Columbia, and four territories were approved for major disaster declarations to assist with additional needs identified under the nationwide emergency declaration for COVID-19. See Federal Emergency Management Agency COVID-19 Disaster Declarations.

      On March 10, 2020, HHS Secretary Azar issued a declaration under the Public Readiness and Emergency Preparedness Act (PREP Act) to provide liability immunity for activities related to medical countermeasures against COVID–19. This declaration was amended, effective March 27, 2020, to extend liability immunity to covered countermeasures authorized under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).

      See section 4.2 of the Manual for more information about federal declarations, section 5.8 of the Manual for more information about the PREP Act, and section 16.4.9 E of the Manual for more information about the CARES Act.

      The Office of the General Counsel of HHS (HHS OGC) issued an omnibus advisory opinion on April 17, 2020, and modified on May 19, 2020, to address questions and concerns raised about the scope of PREP Act immunity during the COVID-19 pandemic. This advisory opinion set forth the current views of the HHS OGC. It was not a final agency action or a final order, does not bind HHS or the federal courts, and does not have the force or effect of law.

      1. Section 1135 Waivers

      On March 13, 2020, HHS Secretary Azar issued a section 1135 waiver with a retroactive effective date of March 1, 2020, regarding:

      • Emergency Medical Treatment and Active Labor Act (EMTALA) sanctions for patient relocation purposes;
      • Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule regulations (for limited duration);
      • In-state licensure requirements for healthcare workers;
      • Participation restrictions on Medicare, Medicaid, & the Children’s Health Insurance Program (CHIP);
      • Medicare Advantage payment limitations; and
      • Sanctions under section 1877(g) (the Physician Self-Referral Law or the Stark Law).

      See section 4.3 of the Manual for more information about section 1135 waivers.

      See Section 1135 Waivers and COVID-19: An Overview for more information regarding section 1135 waivers during the COVID-19 pandemic.

      See Medicaid Emergency Authority Tracker: Approved State Actions to Address COVID-19 for more information on approved Medicaid emergency authorities to address the COVID-19 pandemic.

      1. Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020

      The Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020, which passed with near unanimous support in both the House and Senate, was signed on March 6, 2020. The bill provided $8.3 billion in emergency funding for federal agencies to respond to the coronavirus outbreak, both domestically and globally.

      See The U.S. Response to Coronavirus: Summary of the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 for more information.

      1. Families First Coronavirus Response Act

      The Families First Coronavirus Response Act (FFCRA) was signed on March 18, 2020. This Act addressed the domestic outbreak, including paid sick leave, insurance coverage of coronavirus testing, nutrition assistance, and unemployment benefits.

      See The Families First Coronavirus Response Act: Summary of Key Provisions for a summary of key provisions of the FFCRA.

      1. Coronavirus Aid, Relief, and Economic Security Act

      The CARES Act, which was signed on March 27, 2020, provided $2.2 trillion in economic stimulus funds relief to individuals and businesses suffering losses from the COVID-19 pandemic.

      See The Coronavirus Aid, Relief, and Economic Security Act: Summary of Key Health Provisions for a summary of key health provisions of the CARES Act.

      The CARES Act created a new category of covered countermeasures eligible for liability immunity under the PREP Act: respiratory protective devices approved by the National Institute for Occupational Safety and Health (NIOSH) that the HHS Secretary determines to be a priority for use during a declared public health emergency. See section 5.8 of the Manual for more information about the PREP Act.

      1. Paycheck Protection Program and Health Care Enhancement Act 

      The Paycheck Protection Program and Health Care Enhancement Act was signed on April 24, 2020. This Act provided $484 billion in additional funding to replenish and supplement key programs under the CARES Act, including the Paycheck Protection Program (PPP), small business disaster loans and grants, hospitals and healthcare providers, and testing.

      See The Paycheck Protection Program and Health Care Enhancement Act: Summary of Key Health Provisions for a summary of key health provisions of this act.

      16.4.10    Select State Response Actions to the COVID-19 Pandemic

      States took varying legal actions to prevent the spread of COVID-19 and mitigate the impact of the pandemic on the U.S. public health and healthcare systems. Using executive authority, governors, mayors, and state agencies issued executive orders, emergency proclamations, and emergency rulemakings to institute social distancing measures, including stay-at-home and shelter-in-place orders, travel restrictions, curfews, mandatory quarantine periods for travelers, mask-wearing requirements, business and school closures, and bans on gatherings of various sizes. States also restricted elective medical procedures and appointments, commandeered medical supplies, and ordered healthcare facilities to increase their capacity. Some states preempted local government efforts to enact localized mitigations measures; other states expressly permitted local government action. States also took various approaches to reopening, with some states reopening before COVID-19 cases dropped for 14 days, which was one of the criteria contained in White House guidance on reopening.

      Virginia declared a state of emergency due to the COVID-19 pandemic on March 12, 2020 and a public health emergency on March 20, 2020. Virginia’s stay-at-home order was originally issued on March 30, 2020. An amended order was issued on May 4, 2020. As of May 12, 2020, there were 25,800 COVID-19 cases and 891 COVID-19 deaths in Virginia. Virginia began reopening on May 15, 2020. 

      Maryland declared a state of emergency and a catastrophic health emergency due to the COVID-19 pandemic on March 5, 2020. The declaration was renewed on May 6, 2020. Maryland issued a series of prohibitions on mass gatherings as well as stay-at-home orders on March 12, 2020; the most recent order was issued on May 6, 2020. As of May 12, 2020, there were 33,373 COVID-19 cases and 1,573 COVID-19 deaths in Maryland. Maryland began reopening on May 15, 2020.

      See the following for more information about state and local government actions to address COVID-19:
      • State Data and Policy Actions to Address Coronavirus
                       • National Conference of State Legislatures State Action on Coronavirus (COVID-19)  
                       • National Governors Association What Steps Have States Taken To Address Coronavirus?
                       • Association of State and Territorial Health Officials Coronavirus Disease 2019 (COVID-19) Response Hub
                       • National Association of County & City Health Officials Coronavirus Resources for Local Health

      16.4.11    Select District of Columbia Response Actions to the COVID-19 Pandemic

      See Appendix 7.0 for a timeline of the events described below.

      See section 4.5 of the Manual for more information about mayoral authority to declare emergencies in the District.

      On February 28, 2020, District Mayor Bowser issued Mayor's Order 2020-035 to prepare District government agencies for the potential impacts of COVID-19 on the District’s residents, businesses, and visitors, and on the operations of the District government. The Mayor declared both a public emergency (Mayor's Order 2020-045) and a public health emergency (Mayor's Order 2020-046) due to the COVID-19 pandemic on March 11, 2020.

      DC Health took a number of actions on March 13, 2020, including issuing two administrative orders as well as issuing emergency rulemaking. Administrative Order 2020-01 sets forth certain authorities of DC Health necessary to address COVID-19. The DC Health Director may:

      • Coordinate emergency response activities with local, regional, or federal agencies, the private sector, and non-governmental organizations; 
      • Order an individual or groups of individuals to submit to quarantine, isolation, and/or medical treatment (collectively referred to as “detention”) when there is probable cause to believe that the individual or group is likely to be affected with or a carrier of a communicable disease and the presence of the individual or group is likely to cause death or seriously impair the health of others;
      • Waive any licensing, registration, or certification requirements, permits, or fees otherwise required by District law or regulations to allow healthcare providers from other jurisdictions appointed as temporary agents to respond to the public health emergency, provided that the temporary agents are licensed, registered, or certified and in good standing in their home jurisdictions in their fields of expertise and meet the District’s suitability requirements;
      • Register and appoint licensed, registered, and certified healthcare providers, either from the District or from other jurisdictions, as temporary agents of the District without compensation, provided that the temporary agents are licensed, registered, or certified and in good standing in their home jurisdictions in their fields of expertise and meet the District’s suitability requirements;
      • Register and appoint lay volunteers to support the efforts of the District’s medical response to COVID-19;
      • Exempt licensed healthcare providers, either from the District or from other jurisdictions, from civil liability for damages for any actions taken within the scope of the provider’s paid or unpaid service, except in instances of gross negligence for actions taken during the state of emergency;
      • Authorize the use of crisis standards of care or modified means of delivery of healthcare services in scarce resource situations;
      • Authorize DC Health to coordinate healthcare delivery for first aid within the limits of individual licensure in shelters or facilities provided in plans and protocols published by DC Health, as determined expedient by the DC Health Director;
      • Modify the scope of practice for certain licensed, registered, and certified healthcare providers as required, including authorizing certified paramedics to administer vaccines;
      • Modify DC Health operational processes and procedures as needed to ensure more efficient use of DC Health staff during the COVID-19 response;
      • Implement plans and protocols to address medical surge, including coordination of health and medical resources, disposal of hazardous waste, and other plans and protocols, as needed; and
      • Procure materiel, human capital, and other goods and services as needed to support the health and medical response to COVID-19.

      Administrative Order 2020-02 set forth requirements under which licensure, certification, or registration requirements, permits, and/or fees were waived for healthcare practitioners appointed as temporary agents of the District in order to respond to the COVID-19 public health emergency. The DC Health Director issued an emergency rulemaking that prohibits certain mass gatherings of 250 or more persons at the same time in a single room or other single confined or enclosed space to reduce the spread of COVID-19. In addition, gatherings of more than 10 individuals organized by an organization that is not a hospital, nursing home, assisted living facility, or other medical facility, that primarily serves or targets persons of 60 or older years of age, persons who have serious medical conditions (including heart disease, diabetes, lung disease, asthma, or chronic pulmonary obstructive disease), or persons who are immunocompromised, were also prohibited.

      On March 14, 2020, the District of Columbia Department of Health Care Finance announced emergency and proposed rulemaking for Medicaid providers who could now deliver in-home healthcare services via telemedicine. This policy change allowed Medicaid beneficiaries to receive telemedicine services at their home and required Medicaid telemedicine providers to ensure that any technology used met the standards of care when the beneficiary received telemedicine services at their home. The rule will remain in effect for 120 days or until July 10, 2020, unless superseded by publication of a Notice of Final Rulemaking in the D.C. Register.

      Mayor’s Order 2020-048, issued on March 16, 2020, prohibited mass gatherings of more than 50 persons at the same time in a single room or other single confined or enclosed space to reduce the spread of COVID-19. In addition, gatherings of more than 10 individuals organized by an organization that is not a hospital, nursing home, assisted living facility, or other medical facility, that primarily serves or targets persons of 60 or older years of age, persons who have serious medical conditions (including heart disease, diabetes, lung disease, asthma, or chronic pulmonary obstructive disease), or persons who are immunocompromised, continued to be prohibited. Restaurants and taverns were required to suspend table seating and could operate only delivery and grab-and-go services as of March 16, 2020. Night clubs, multi-purpose facilities, health clubs, health spas, massage establishments, and theatres were required to suspend operations on March 17, 2020.

      The COVID-19 Response Emergency Amendment Act of 2020 (D.C. Act 23-247) became effective on March 17, 2020. This expansive act provided the Mayor with additional authority and addressed critical needs of District residents and businesses during the COVID-19 declared public health emergency, including wage replacement, business relief, and additional authorities and exemptions regarding health, public safety, consumer protection, and government operation. For example, this act created a new category of leave available under the District’s Family and Medical Leave Act, declaration of emergency leave, and temporarily eased certain eligibility requirements for unemployment insurance compensation and other public benefit programs. The act also prohibited the disconnection of electric, water, and gas services, as well as evictions during a public health emergency.

      Mayor’s Order 2020-049, issued on March 19, 2020, stated that exemptions could be granted for overweight, over width, registration, licensing, and hours of service to all motor carriers and drivers transporting emergency relief supplies or otherwise providing direct assistance in support of emergency relief efforts to, through, and from any area of the District. This authorization applied to water, food, medical supplies and equipment, supplies and equipment necessary for community safety, sanitation, and prevention of COVID-19, supplies and equipment necessary to establish and manage temporary facilities in response to COVID-19, heating oil, motor fuels, and propane, agricultural products and supplies, equipment and supplies necessary to restore utilities, removal of waste, and any other equipment, services, supplies, and persons transported to support the COVID-19 response and recovery, regardless of their point of origin or destination.  The order also delegated authority to the District of Columbia Department of Transportation to issue temporary waivers of registration and licensing requirements for motor carriers and drivers and temporary waivers of normal weight and width restrictions on roads controlled by the District in order to ensure that these services, supplies, equipment, and persons reach impacted areas in a timely fashion.

      On March 20, 2020, under Mayor’s Order 2020-050, the Mayor extended the declarations of public emergency and public health emergency until April 24, 2020 and incorporated the emergency measures included in Mayor’s Order 2020-045 and Mayor’s Order 2020-046. Also, on March 20, 2020, Mayor’s Order 2020-051 was issued, which continued the prohibition on mass gatherings of more than 50 persons at the same time in a single room or other single confined or enclosed space to reduce the spread of COVID-19. The prohibition of table service and service to standing customers at restaurants, bars, taverns, and multi-purpose facilities in the District, including seated, fast food, and fast casual, continued. Such businesses could operate take out, grab-and-go, and delivery operations only. The suspension of operations for nightclubs, multi-purpose facilities, health clubs, health spas, massage establishments, and theatres that began March 17, 2020 was continued. In addition, all of Department of Parks and Recreation’s facilities, including playgrounds, parks, and athletic fields, were closed to the public and no member of the public allowed to enter upon or into such facilities.

      On March 23, 2020, pursuant to Mayor’s Order 2020-052, the Mayor delegated authority in order to execute actions required under the COVID-19 Response Emergency Amendment Act of 2020.

      Mayor’s Order 2020-053, issued on March 24, 2020, and based on guidance provided by the United States Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA), ordered the temporary closure of all non-essential businesses. In addition, essential businesses that remained open were required to comply with social distancing requirements. Both essential and non-essential businesses were required to take reasonable steps to allow employees to work remotely.

      All businesses with a facility in the District (except essential businesses as defined in the order) were required to cease all activity. Minimum basic operations were still permitted, defined as the minimum necessary activities to: maintain inventory, ensure security, process payroll/employee benefits, facilitate working remotely/teleworking, clean/disinfect facilities, and provide supervision of contractors and provide essential maintenance.

      Essential businesses were defined as:

      • Healthcare and public health operations pursuant to the guidelines from the CISA;
      • Veterinary care;
      • Essential infrastructure – public works and utilities;
      • Food and household products and services – establishments engaged in the sale/distribution of food products, alcohol, and any other household consumer products:
        • Laundry service providers;
        • Medical marijuana cultivation centers;
        • Stores that sell products necessary to maintain safety, sanitation, and operation of residences; and
        • Restaurants or facilities that prepare/serve food must be take-out or deliver only.
      • Social services providing the necessities of life (food and shelter);
      • Communications and information technology;
      • Energy and automotive services (e.g., gas stations, auto repair shops, and auto supply stores;
      • Financial services;
      • Educational institutions for the sole purpose of facilitating distance learning or modifying facilities/providing support;
      • Transportation and logistics (e.g., delivering/shipping goods, taxis and ride-share, mailing and shipping services, and bicycle shops);
      • Construction and building trades;
      • Housing and living facilities;
      • Professional services, including legal, insurance, notary, and accounting services, but only to assist in compliance with legally mandated activities, essential businesses, or essential government functions; and
      • Childcare facilities, with priority given for the children of essential employees.

      Any business that did not fall within a category listed as essential businesses in the order, but which provided goods or services necessary to maintain operations at an essential business, could apply for a waiver, processed through the District of Columbia Homeland Security and Emergency Management Agency (HSEMA).

      Essential government functions included first responders, police, fire and emergency medical services, emergency management, 311/911 call center, law enforcement functions, services needed to ensure the continued operation of the government agencies (local and federal) or their contractors and provide for the health, safety, and welfare of the public, District of Columbia Courts, inter‐governmental commissions, and entities performing such functions, including judicial and election functions.

      Social distancing requirements included maintaining at least 6 feet of distance from another individual, washing hands with soap and water for at least 20 seconds or using hand sanitizer frequently or after contact with potentially‐infected surfaces, covering coughs or sneezes preferably with a tissue immediately disposed of, or into the elbow or sleeve (not with hands), and regularly cleaning high‐touch surfaces and not shaking hands.

      On March 27, 2020, DC Health issued Administrative Order 2020-03. Under the order, COVID-19 was added to the list of notifiable diseases and conditions for the duration of the public health emergency. In addition, all public health and commercial labs were required to share data on notifiable diseases or conditions with the District of Columbia Health Information Exchange (D.C. HIE) and DC Health for the duration of the public health emergency. The D.C. HIE was authorized, for the duration of the public health emergency, to provide notification of positive test results to District of Columbia Fire and Emergency Medical Services providers in the event of their exposure to COVID-19.

      The Mayor issued a stay-at-home order on March 30, 2020 under Mayor’s Order 2020-054, which required all individuals in the District to stay in their residences except to perform essential activities, engage in essential business, provide or obtain essential government services, or engage in certain authorized recreational activities not involving close contact with others. Individuals experiencing homelessness were exempt, but were strongly urged to obtain shelter, with District agencies making such shelter available as soon as possible and to the extent practicable, using COVID-19 risk mitigation practices in their operations. Additional limitations were placed on individuals and businesses.

      Also on March 30, 2020, DC Health issued Administrative Order 2020-04, which provided that emergency medical services (EMS) agencies that were awarded Certificate of Need (CON) or CON exemption, either permanent or temporary, be offered a streamlined process and application for a provisional D.C. EMS Agency certification for the duration of the declared emergency plus 30 days thereafter. In addition, pursuant to 29 DCMR section 562, the DC Health Director was permitted authorize “Community Paramedicine” as a pilot project to improve patient care services. All other EMS certification requirements and/or fees were waived for healthcare practitioners for the duration of declared emergency.

      On March 31, 2020, effective immediately, DC Health issued a Notice of Emergency Rulemaking to amend DCMR Title 22, Subtitle B, Chapter 2, to require individuals living in the District to stay at their place of residence, with certain exceptions, to reduce the community transmission of SARS-CoV-2.

      DC Health issued Administrative Order 2020-05 on April 2, 2020, to authorize the use of crisis standards of care by healthcare facilities during the COVID-19 declared emergency. Healthcare facilities were required to have invoked their emergency operations plans in order to implement their crisis standards of care plans. Each facility’s crisis standards of care were deemed approved by the District, to be executed by health and allied professionals, or other licensed, registered, or certified professionals providing services in a healthcare facility or a District approved alternate care site facility in response to the District’s COVID-19 declared public health emergency. For the duration of the declared emergency, these crisis standards of care served as the standards of care and the degree of care owed to patients by licensed, registered, or certified healthcare professionals as set forth in each healthcare facility’s respective emergency plan.

      All healthcare professionals and their assisting personnel executing the crisis standards of care plan were required to do so in good faith, ethically, fairly, and equitably without regard to the patient’s disability, insurance status, or ability to pay.

      See section 11.4 of the Manual for more information on crisis standards of care and section 16.4.12 of the Manual for more information about equity concerns during the COVID-19 pandemic.

      Also on April 2, 2020, DC Health issued a Notice of Emergency and Proposed Rulemaking, effective immediately, to amend Chapter 13 (Prescriptions and Distribution) of Title 22, Subtitle B of the DCMR. This emergency rulemaking was deemed necessary to protect the health, safety, and welfare of the District’s residents by ensuring the continued availability of hydroxychloroquine, chloroquine, and azithromycin to patients who rely on these prescription medications for treatment of FDA-approved medical conditions and diseases to avoid disability, illness, and early death. The purpose of this rulemaking was to require that pharmacists only dispense hydroxychloroquine, chloroquine, and azithromycin for FDA-approved conditions and treatment or pursuant to the exceptions set forth in this rulemaking. The emergency rule expired 120 days from the date of adoption, July 31, 2020, or upon publication of a Notice of Final Rulemaking in the D.C. Register, whichever occured first.

      Mayor’s Order 2020-057, issued on April 6, 2020, placed restrictions on certain personnel, travel, and training due to the impacts of COVID-19 on District government finances and revenue shortfall.

      Mayor’s Order 2020-058, issued on April 8, 2020, required the implementation of social distancing protocols at indoor retail food sellers and declared that farmers’ markets and the Municipal Fish Market were no longer deemed “essential businesses,” meaning they could not operate without first obtaining a waiver. Furthermore, tennis and golf were removed from the definition of “allowable recreational activity” and individuals utilizing rooftop or courtyard spaces could only do so with members of their household and while practicing social distancing.

      On April 10, 2020, D.C. Act 23-286 “COVID-19 Response Supplemental Emergency Amendment Act of 2020” was enacted. This expansive act provided the Mayor with additional authority and addressed critical needs of District residents and businesses during the COVID-19 declared public health emergency, including wage replacement, business relief, and additional authorities and exemptions regarding health, public safety, consumer protection, and government operation, as well as authorized and provided for the issuance of certain District notes and bonds. For example, the Act amended the District Accrued Sick and Safe Leave Act (ASSLA) to create a new category of paid leave called “declared emergency leave;” employers were required to provide paid leave to employees for any covered reason provided by the FFCRA. The Act also required mortgage servicers to create a deferment program for residential and commercial mortgages during a declared public health emergency and 60 days thereafter.

      Also on April 10, 2020, pursuant to Mayor’s Order 2020-059, the Mayor delegated authority in order to execute actions required under the COVID-19 Response Supplemental Emergency Amendment Act of 2020.

      Mayor’s Order 2020-060, issued on April 13, 2020, delegated authority to the Director of the Department of General Services to procure goods and services for emergency medical facilities related to the COVID-19 public health emergency.

      On April 14, 2020, DC Health issued a Notice of Emergency Rulemaking to amend DCMR Title 22, Subtitle C, Chapter 57, which allowed District residents registered as qualifying patients to obtain medical marijuana from dispensaries registered in the District through delivery, curbside pickup, and at-the-door pickup options.

      Mayor’s Order 2020-063, issued on April 15, 2020, extended the public health emergency and public health emergency in the District through May 15, 2020. The order also designated individuals who perform direct support services within certain residences and facilities (e.g., community living residences and facilities for individuals with medical, physical, or other healthcare conditions that are funded in whole or part by the District, nursing homes and assisted living facilities, low-barrier and emergency shelters for individuals, families, or youth experiencing homelessness or fleeing domestic violence, psychiatric hospitals, and certain correctional and youth rehabilitation facilities) as essential healthcare providers necessary for the District’s COVID-19 public health emergency response. Protocols were required at these facilities for the safety of employees and residents, including the exclusion of visitors and non-essential personnel, screening of all individuals entering the facility for COVID-19 symptoms, social distancing measures, and the cancellation of group activities. Policies and procedures to address anticipated staff shortage and fast-tracking employment at these facilities were also included. In addition, the Department of Health Care Finance was ordered to review its claims data for 2019 and 2020 to identify beneficiaries who may have underlying health conditions that make them more vulnerable to severe illness or death from COVID-19, as well as conduct outreach activities to the identified individuals.

      DC Health issued Administrative Order 2020-06 on April 20, 2020, which provided liability protections for persons providing services to the District during the COVID-19 public health emergency declaration. Under this administrative order, any person, employee of the District not otherwise exempt under existing law, or contractor providing services under the direction of DC Health arising out of the COVID-19 response efforts, is exempt from civil liability for damages for actions taken while acting within the scope of their employment, voluntary service, or scope of work to prevent or control the spread of COVID-19, except in instances of gross negligence or intentional act or omission during the period of the declared public health emergency.

      See section 5.8 of the Manual for more information about liability protection.

      See https://www.dccourts.gov/coronavirus for more information about the operation of District of Columbia Courts during the COVID-19 pandemic.

      Mayor’s Order 2020-065, issued on May 9, 2020, provided technology guidelines for virtual meetings and delegated authority to the Chief Procurement Officer to exempt any contractor providing services arising out of a contract with the District government from civil liability for damages for actions taken while acting within the scope of services of their contract, except in instances of gross negligence, and solely for actions taken during the public health emergency.

      In preparation for medical surge in the District, local hospitals were directed to increase their bed capacity to accommodate as much as 125% of their licensed capacity. The District’s Alternate Care Site (ACS), a temporary hospital, was built to accept patients once hospitals exceed their capacity.  Designed and constructed in 22 days within the Walter E. Washington Convention Center and ready for operation as of May 12, 2020, the ACS had the ability to provide acute and non-acute care for mildly symptomatic COVID-19 patients referred from other licensed hospitals within the District. Coordinated by local and federal agencies, the ACS could accommodate 437 patients in fully equipped individual patient rooms, and provide a complete range of clinical and non-clinical providers, as well as support functions like radiology, laboratory, and pharmacy. The ACS was designed to expand to accommodate up to 1,900 beds, if needed.

      See https://www.cdc.gov/coronavirus/2019-ncov/hcp/alternative-care-sites.html and  https://asprtracie.hhs.gov/technical-resources/111/covid-19-alternate-care-site-resources/99 for more information and resources related to alternate care sites.

      On May 13, 2020, District Mayor Bowser issued Mayor’s Order 2020-066, which extended the District’s public emergency and public health emergency declarations until June 8, 2020. This order also outlined mask requirements and the District’s preparations for reopening.

      The ReOpen D.C. Advisory Group issued recommendations to Mayor Bowser regarding how to reopen the District safely via a phased reopening strategy with mitigation guidelines under sector on May 21, 2020. The ReOpen D.C. Advisory Group recommended a four-phase approach to reopening businesses, government operations, services, and activities in the District, with each phase reducing restrictions and moving toward Phase Four, when District restrictions based on protecting public health would lift.

      On May 27, 2020, District Mayor Bowser issued Mayor’s Order 2020-067, which declared that the District was in Phase One of reopening. The order established the applicable standards for reopening, lifted restrictions under the “Stay-at-Home” Order, and allowed certain businesses to reopen on May 29, 2020, under specified conditions. Large gatherings of more than 10 individuals continued to be banned. Healthcare providers were permitted to continue to offer, or resume offering, services, including outpatient or other surgical procedures in the District that would not unduly burden hospital capacity or COVID-19 related resources. Conditions were set for food establishments and taverns, nightclubs and other mixed-use facilities that offer food, to open for outdoor dining. Parks, dog parks, tennis courts, tracks, and fields could reopen; however, playgrounds, public pools, recreation centers, and indoor facilities were to remain closed. The District’s public emergency and public health emergency declarations were extended until July 24, 2020.

      16.4.12    Equity Concerns Raised by the COVID-19 Pandemic 

      See section 14.0 of the Manual for more information regarding at-risk populations.

      The COVID-19 pandemic shined a spotlight on existing health inequities in the United States. African Americans, Latinx, and Native American communities were disproportionately impacted by both the disease and its accompanying economic devastation. Individuals experiencing homelessness had no home in which to shelter or access to sanitation facilities to wash their hands. Older adults and individuals with disabilities became concerned that policies regarding the allocation of scarce resources (e.g., ventilators and intensive care unit beds) would result in scoring systems that would put them at lower priority to receive such resources. Individuals from Asia and Asian Americans experienced increased racism and stigmatization for being responsible for the “Chinese virus.” The environments of nursing homes, residential facilities, and correctional facilities led to significant outbreaks of COVID-19, putting older adults, individuals with disabilities, and incarcerated persons, at risk. Families who relied on schools to provide their children with food were faced with sudden food insecurity, as were those who relied on federal nutrition assistance programs.

      The United States District Court for the District of Columbia issued a nationwide preliminary injunction on March 13, 2020, to halt a federal rule that would remove an estimated 700,000 individuals from the Supplemental Nutrition Assistance Program (SNAP) by limiting a state’s ability to request a waiver of SNAP work requirements for certain adults without dependents. The United States Department of Agriculture (USDA) may not enforce the regulation while the court considers the legality of the challenged rule. The court reasoned that the plaintiffs were likely to win on the merits of the case because aspects of the rule are “likely unlawful because they are arbitrary and capricious.” The court also held that the injunction was needed to prevent irreparable harm to multiple states, nonprofits, and SNAP recipients. The court highlighted SNAP’s importance to national pandemic response efforts “[e]specially now, as a global pandemic poses widespread health risks, guaranteeing that government officials at both the federal and state levels have flexibility to address the nutritional needs of residents and ensure their well-being through programs like SNAP, is essential."

      HHS OCR issued a bulletin on March 28, 2020, designed to ensure that entities covered by civil rights authorities keep in mind their obligations under laws and regulations that prohibit discrimination on the basis of race, color, national origin, disability, age, sex, and exercise of conscience and religion in HHS-funded programs. See United States Department of Health and Human Services Office for Civil Rights in Action Bulletin: Civil Rights, HIPAA, and the Coronavirus Disease 2019 (COVID-19). This bulletin was released after several disability rights organizations filed complaints with HHS OCR regarding state protocols regarding treatment and the allocation of scarce resources during the COVID-19 pandemic. See HHS-OCR Complaints Re COVID-19 Treatment Rationing.

      For more information about equity issues and the COVID-19 pandemic, please see the following:
      • State Policies May Send People with Disabilities to the Back of the Line for Ventilators
                        • Ten Equity Implications of the Coronavirus COVID-19 Outbreak in the United States
                        • American Medical Association COVID-19 health equity resources
                        • American Public Health Association COVID-19 and Equity
                        • Centers for Disease Control and Prevention Interim Guidance for Homeless Service Providers to Plan and Respond to Coronavirus Disease 2019 (COVID-19)
                        • COVID-19 and Health Equity Resources  

      16.5 Ebola

      The Ebola virus causes an acute, serious illness that is often fatal if left untreated. EVD was first discovered in 1976 in two consecutive outbreaks in different parts of Central Africa. The first one occurred near the Ebola River in what is now the Democratic Republic of the Congo (DRC), giving the virus its name. See Centers for Disease Control and Prevention Ebola (Ebola Virus Disease) History of Ebola Virus Disease. Since that time, periodic outbreaks have occurred in several African countries. The 2014-2016 outbreak in West Africa was the largest and most complex outbreak, with more cases and deaths in this outbreak than all others combined spread across several countries. See World Health Organization Ebola Virus Disease. In 2018, the DRC declared its ninth and tenth outbreaks of EVD, the latter of which is still ongoing. See European Medicines Agency Ebola. This is considered to be the second largest Ebola outbreak.

      DC Health has an Ebola information page: https://dchealth.dc.gov/page/ebola-information.

      16.5.1    Transmission 

      The natural wildlife host of Ebola virus has not been definitely identified but African fruit bats may be the reservoir. The virus is introduced into the human population through close contact with the blood, secretions, organs, or other bodily fluids of infected animals like chimpanzees, monkeys, gorillas, and fruit bats. EVD is then spread from human to human via direct contact with the blood, secretions, organs, or other bodily fluids of infected individuals, and with surfaces and materials contaminated with these fluids like bedding or clothing.

      Healthcare workers who have close contact with patients with suspected or confirmed EVD have frequently become infected when infection control precautions are inadequate and PPE is not available. EVD may also be transmitted through traditional burial ceremonies that involve direct contact with the deceased individual. Pregnant women infected with EVD may transmit the virus via breastmilk or pregnancy-related fluids and tissue. EVD transmission may occur from semen from a man who recovered from EVD, but has not been shown to be transmitted through vaginal fluids from a woman.

      See Overview, Control Strategies, and Lessons Learned in the Centers for Disease Control and Prevention (CDC) Response to the 2014-2016 Ebola Epidemic.

      16.5.2    Symptoms 

      The incubation period of EVD is 2-21 days; symptoms usually appear within 8-10 days after exposure. First symptoms include the sudden onset of fever, fatigue, muscle pain, headache, and sore throat; these symptoms are similar to other infectious diseases such as malaria and Lassa fever, making diagnosis difficult. Initial symptoms are followed by vomiting, diarrhea, rash, and in some cases, both internal and external bleeding. In severe cases, multi-organ dysfunction such as kidney and liver failure can develop. An infected person becomes contagious once symptoms appear.

      See Overview, Control Strategies, and Lessons Learned in the CDC Response to the 2014-2016 Ebola Epidemic.

      16.5.3    Treatment and Vaccines 

      Currently, there are no anti-viral drugs approved by the FDA. Two of the four investigational treatments utilized in the 2018 DRC outbreak that demonstrated higher survival rates, regenerin (REGN-EB3) and mAb114, are currently being used to treat confirmed cases of EVD. See Centers for Disease Control and Prevention Ebola (Ebola Virus Disease). Symptomatic treatment, early supportive care with intravenous hydration and supplemental oxygen, and treatment of co-infections improve the likelihood of survival.

      On November 11, 2019, a vaccine, Ervebo (Ebola Zaire Vaccine [rVSV∆G-ZEBOV-GP, live]) was granted EU-wide conditional marketing authorization, following a recommendation by the European Medicines Agency (EMA). See European Medicines Agency Ebola. On November 19, 2019, WHO prequalified Ervebo, fast-tracking its licensing, access, and rollout in countries at highest risk. See WHO prequalifies Ebola vaccine, paving the way for its use in high-risk countries. On December 19, 2019, Ervebo became the first FDA-approved vaccine for the prevention of EVD. Prior to licensure, it was used during the 2018 outbreak in the DRC as an investigational vaccine under the FDA’s Expanded Access Program to protect persons at highest risk of the Ebola outbreak under a “ring vaccination” strategy that continues today. This strategy tracks the epidemic, recruiting individuals at increased risk of infection due to their connection to a patient confirmed with EVD. See World Health Organization Uganda’s groundwork in preparedness bodes well for stopping Ebola’s spread within its borders.

      16.5.4    2014-2016 Ebola Virus Disease Outbreak: West Africa

      The first reported cases in the 2014-2016 Ebola outbreak in West Africa were reported to WHO on March 23, 2014 in the forested rural region of southeastern Guinea bordering Liberia and Sierra Leone. The lack of public health infrastructure, including the absence of adequate surveillance capabilities, impeded a rapid and effective response in the affected countries. The outbreak spread to urban areas and exploded into an epidemic, overwhelming the isolation, laboratory testing, and treatment capacities of the three countries. The epidemic was further exacerbated by poor infection control in healthcare facilities as well as the high mobility and intermixing of populations. By late summer 2014, EVD had reached the densely populated capitals of all three countries. On August 8, 2014, WHO declared the situation a PHEIC.

      CDC Emergency Operations Center (EOC) was activated from July 9, 2014 until March 31, 2016. CDC’s response was the agency’s largest emergency response in its history. Approximately 4,000 CDC staff directly participated in the response, with 1,897 deployed in Guinea, Sierra Leone, Liberia, and other African countries affected to provide surveillance, contact tracing, data management, laboratory testing, and health education.

      Airport screenings were required for travelers leaving West Africa to prevent the spread of EVD to other countries. CDC trained over 24,000 healthcare workers in West Africa on infection prevention and control. By the end of 2015, laboratory capacity was expanded in Guinea, Sierra Leone, and Liberia, to 24 laboratories able to test for EVD. See Overview, Control Strategies, and Lessons Learned in the CDC Response to the 2014-2016 Ebola Epidemic.

      WHO lifted the PHEIC status for the West Africa Ebola crisis on March 29, 2016. During the outbreak 28,616 cases of EVD and 11,310 deaths were reported in Guinea, Sierra Leone, and Liberia. See 2014-2016 Ebola Outbreak in West Africa.

      16.5.5    2014-2016 Ebola Virus Disease Outbreak: United States 

      During the 2014-2016 Ebola outbreak, 11 individuals were treated for EVD in the U.S. On September 30, 2014, CDC confirmed the first travel-associated case of EVD diagnosed in the U.S. in a patient who traveled from West Africa to Dallas, Texas. The patient died on October 8, 2014. Two nurses who provided care for the patient became infected with EVD, were hospitalized, and recovered. A fourth case was confirmed in a healthcare worker who volunteered in Guinea and returned to NYC in October 2014; the individual was hospitalized there and recovered. An additional seven individuals with EVD symptoms were transported by charter aircraft from West Africa for treatment at U.S. hospitals; six of these patients recovered. See, e.g., 2014-2016 Ebola Outbreak in West Africa.

      After her return to the U.S. after caring for EVD patients in West Africa, nurse Kaci Hickox was asked by Maine public health officials to quarantine herself in her home for the 21-day EVD incubation period, receive direct active monitoring from a public health nurse, and restrict her movements to avoid contact with others. While Hickox agreed to participate in direct active monitoring, she refused to self-quarantine or restrict her movements absent the onset of symptoms. Under Maine law, Maine public health officials are required to request court intervention to effectuate their detention order, which will be issued if the court finds by clear and convincing evidence that a public health threat exists. See ME Rev Stat Ann tit 22, § 805 and ME Rev Stat Ann tit 22, § 812. Maine public health officials filed such a petition. A Maine court ruled that while Hickox was required to comply with direct active monitoring and other steps, the state had not shown by clear and convincing evidence that restricting Hickox’s movements was necessary to protect public health, as Hickox did not have EVD symptoms and was therefore not infectious. See Mayhew v. Hickox, No. CV-2014-36 (Me Dist Ct, Fort Kent, October 31, 2014).

      16.5.6    2018-2019 Ebola Virus Disease Outbreak: Democratic Republic of the Congo 

      A new outbreak of EVD was declared by the Ministry of Health of the DRC in North Kivu Province on August 1, 2018 and is still ongoing. As of May 3, 2020, 3,462 EVD cases and 2,243 deaths were reported, with an overall case fatality ratio of 65%. See World Health Organization Ebola virus disease – DRC. Four EVD cases were reported in Uganda in June 2019, three in June and one in August. All four patients had recently traveled to the DRC and died from EVD. In response, the Ugandan Health Ministry registered 108 of their contacts for follow-up. There have been no reports of non-travel related cases of EVD in Uganda. See U.S. Food and Drug Administration First FDA-approved vaccine for the prevention of Ebola virus disease, marking a critical milestone in public health preparedness and response.

      On July 17, 2019, WHO declared that the EVD outbreak in the DRC was a PHEIC. The declaration followed a meeting of the International Health Regulations Emergency Committee for EVD in the DRC. The Committee cited recent developments in the outbreak in making its recommendation, including the first confirmed case in Goma, a city of almost two million people on the border with Rwanda, and the gateway to the rest of DRC and the world.

      16.5.7    CDC Guidance for United States Hospitals 

      To facilitate a coordinated response to a suspected or confirmed case of EVD in the U.S., in 2014 CDC issued the Interim Guidance for U.S. Hospital Preparedness for Patients Under Investigation (PUIs) or with Confirmed EVD: A Framework for a Tiered Approach. Under this framework, state and local health officials, in consultation with hospital officials, urgent/emergency care settings, and emergency medical services providers in each state were advised to develop a concept of operations plan that described a networked approach to the evaluation, care, and testing of PUIs and the transfer and treatment of patients with confirmed EVD. To create a coordinated, networked approach, state and local health officials, in collaboration with hospital executives, designated acute healthcare facilities to serve in one of three roles:

      • Frontline healthcare facilities;
      • Ebola assessment hospitals; and
      • Ebola treatment centers.

      While states were not required to adopt a three-tiered approach, CDC strongly encouraged all states to identify Ebola assessment hospitals that could effectively manage PUIs until the diagnosis of EVD was confirmed or ruled out. This was especially important in states where there was not expected to be an Ebola treatment center. As of July 2012, 55 hospitals in 17 states and D.C. had established Ebola treatment centers. See Centers for Disease Control and Prevention Overview, Control Strategies, and Lessons Learned in the CDC Response to the 2014–2016 Ebola Epidemic.

      CDC also worked with the United State Department of Homeland Security, United State Customs and Border Control, and health departments to institute a process for screening and monitoring travelers returning from West African countries with EVD outbreaks. After being screened at one of five designated airports, these returning travelers were monitored by their state or local health department for Ebola symptoms over the 21-day incubation period. From October 2014 through December 2015, roughly 29,000 individuals were monitored. See Centers for Disease Control and Prevention Overview, Control Strategies, and Lessons Learned in the CDC Response to the 2014–2016 Ebola Epidemic.

      Although the CDC has stopped issuing EVD guidance, current information is available at: https://www.cdc.gov/vhf/ebola/index.html.

      16.5.8    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 and 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 has additional information regarding transporting infectious substances available at https://www.phmsa.dot.gov/transporting-infectious-substances/transporting-infectious-substances-overview.

      A patient 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 a 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.

      16.6 Measles

      Measles is a serious, and sometimes fatal disease caused by a virus in the paramyxovirus family. It is typically transmitted through direct contact and through airborne droplets. The virus infects the respiratory tract, then spreads throughout the body. Measles is not spread by animals. Before the introduction of measles vaccine in 1963 and widespread uptake in vaccinations, major epidemics occurred approximately every 2–3 years, causing an estimated 2.6 million deaths each year. More than 140,000 people died from measles worldwide in 2018, mostly children under the age of 5 years, despite the availability of a safe and effective vaccine. See World Health Organization Measles.

      On March 26, 2019, the DC Health Division of Epidemiology-Disease Surveillance and Investigation (DE-DSI) issued a health notice for District of Columbia Healthcare Providers regarding guidance on measles testing and control measures. DC Health urges healthcare providers to maintain an increased index of suspicion for measles in patients with clinically compatible symptoms, and ensure that all patients are up to date on measles, mumps, rubella (MMR) vaccine, including before international travel.

      16.6.1    Transmission 

      Measles is a highly contagious virus that lives in the nose and throat mucus of an infected person. It can spread to others through coughing and sneezing. The measles virus can live for up to two hours in an airspace where the infected person coughed or sneezed. Measles is so contagious that if one person is infected, up to 90% of the people close to that person who are not immune will also become infected. Infected people can spread measles to others four days before the rash appears and remain contagious for four days after the rash presents. See Centers for Disease Control and Prevention Measles (Rubeola) Transmission.

      16.6.2    Symptoms 

      Measles symptoms include high fever, cough, runny nose, and red, watery eyes. Symptoms appear 7-14 days after exposure. Measles rash appears 3-5 days after the first symptoms appear. The rash usually begins as flat red spots that appear on the face at the hairline and spread downward to the neck, trunk, arms, legs, and feet. Small raised bumps may also appear on top of the flat red spots. The spots may become joined together as they spread from the head to the rest of the body. When the rash appears, a person’s fever may spike to more than 104° Fahrenheit. See Centers for Disease Control and Prevention Measles (Rubeola) Signs and Symptoms.

      16.6.3    Complications and Vaccines 

      Common complications from measles include otitis media, bronchopneumonia, laryngotracheobronchitis, and diarrhea. Even in previously healthy children, measles may cause serious illness requiring hospitalization.

      • One of every 1,000 measles cases will develop acute encephalitis, which often results in permanent brain damage.
      • One to three of every 1,000 children who become infected with measles will die from respiratory and neurologic complications.
      • Subacute sclerosing panencephalitis (SSPE) is a rare, but fatal degenerative disease of the central nervous system characterized by behavioral and intellectual deterioration and seizures that generally develops 7 to 10 years after measles infection.

      People at high risk for severe illness and complications from measles include:

      • Infants and children under 5 years old;
      • Adults over 20 years old;
      • Pregnant women; and
      • People with compromised immune systems, such as from leukemia and HIV infection.

      See Centers for Disease Control and Prevention Measles (Rubeola) for Healthcare Professionals.

      Measles can be prevented with an MMR vaccine. The vaccine protects against three diseases: measles, mumps, and rubella. MMR vaccine is given later than some other childhood vaccines because antibodies transferred from the mother to the baby may provide some protection from disease and make the MMR vaccine less effective until about 1 year of age. Two doses of MMR vaccine are 97% effective at preventing measles; one dose is approximately 93% effective. See Centers for Disease Control and Prevention Measles (Rubeola) Vaccine for Measles.

      16.6.4    Measles History in the United States 

      In 1912, measles became a nationally notifiable disease in the U.S. Before the vaccine was available, nearly all children got measles by the time they were 15 years of age. The measles vaccination program started in 1963; prior to this, an estimated 3 to 4 million people got measles each year in the U.S. Approximately 500,000 cases were reported each year to CDC; of these, 400 to 500 people died, 48,000 were hospitalized, and 1,000 developed encephalitis (inflammation of the brain) from measles. See Centers for Disease Control and Prevention Measles (Rubeola) Vaccine for Measles.

      In 1978, CDC sought to eliminate measles in the U.S. by 1982. Although this goal was not met, by 1981, the number of reported measles cases was 80% fewer than the previous year. A 1989 measles outbreak among vaccinated school-aged children prompted the Advisory Committee on Immunization Practices (ACIP), the American Academy of Pediatrics (AAP), and the American Academy of Family Physicians (AAFP) to recommend a second dose of MMR vaccine for all children. Following widespread implementation of this recommendation and improvements in first-dose MMR vaccine coverage, reported measles cases declined even more. Measles was declared eliminated (absence of continuous disease transmission for greater than 12 months) from the U.S. in 2000. See Centers for Disease Control and Prevention Measles (Rubeola) History of Measles.

      16.6.5    Cases and Outbreaks 

      As vaccination rates began decreasing in the U.S., cases and outbreaks of measles became more frequent. In addition, travelers bring measles into the U.S. from countries where the disease still occurs or where outbreaks are occurring. See Centers for Disease Control and Prevention Measles (Rubeola) Questions About Measles. In 2014, Disneyland California experienced an outbreak during which at least 131 California residents, as well as residents from six other states, Mexico, and Canada, were infected with measles. See California Department of Public Health Immunization Branch Measles.

      The U.S. experienced a significant measles outbreak in 2019: 2019, 1,282 individual cases of measles were confirmed in 31 states, the greatest number of cases reported in the U.S. since measles was declared eliminated in 2000. In 2020, as of April 5, 12 cases in seven jurisdictions have been reported. See Centers for Disease Control and Prevention Measles (Rubeola) Cases and Outbreaks.

      1. Washington State – On January 25, 2019, Washington State Governor Jay Inslee declared a state of emergency for all counties in the state due to measles outbreaks. At the time of the declaration, there were 25 confirmed measles cases in Clark County and one confirmed case in King County. Another outbreak began on May 9 in three Puget Sound counties. As of July 16, 2019, there were a total of 85 confirmed measles cases in the state. See Washington State Department of Health Measles 2019.
         
      2. New York City – A significant measles outbreak began in NYC in late 2018 centered in regions with a large Orthodox Jewish population. On April 9, 2019, the NYC Health Commissioner declared a public health emergency and ordered every adult and child who lives, works or resides in certain zip codes in NYC to be vaccinated. On April 17, 2019, the NYC Board of Health voted unanimously to adopt a resolution supporting the Commissioner's order and the vaccination requirement. People who are immune to measles or have a medical condition that prevents them from receiving the vaccine are exempt. Noncompliant individuals can be fined $1,000. As of July 15, 2019, 31,299 doses of the MMR vaccine have been administered to people who are under 19 years old in these areas. From September 2018 to July 15, 2019, there have been 623 confirmed measles cases in NYC. See NYC Health Measles.

        Parents of unvaccinated children challenged the NYC order, claiming it was disproportionate to the circumstances and failed to use the least restrictive means to control measles while protecting individual autonomy, informed consent, and free exercise of religion. The order was upheld by a New York state court on April 18, 2019, which held that the petitioners had not offered a demonstrably better, safer, or more efficient alternative to support their argument that the mandatory vaccination fails the “least restrictive means” standard. The court dismissed religious objections because the petitioners did not offer affidavits of a religious official or other doctrinal documentation to support their claim of religious exemption. Finally, with respect to informed consent, the issue was inappropriately raised in the context of a measles outbreak: “A fireman need not obtain the informed consent of the owner before extinguishing a house fire. Vaccination is known to extinguish the fire of contagion.” See C.F. v New York City Dept. of Health and Mental Hygiene, 2019 NY Slip Op 31047(U) (April 18, 2019).
         

      3. Rockland County, New York – On March 26, 2019, Rockland County, a suburb outside of NYC, declared a state of emergency due to a measles outbreak. As part of the declaration, unvaccinated individuals under the age of 18 were prohibited from being in public places, including restaurants, civic centers, houses of worship, shopping malls and schools. At the time of the declaration, there were more than 150 confirmed cases of measles in the county, the majority of whom had not received the MMR vaccine. See Rockland County Measles Information.
        Parents of unvaccinated children sued Rockland County, arguing that the county executive overstepped his powers because the current measles outbreak did not qualify as an emergency. On April 5, 2019, a New York State court ruled that the number of measles cases did not rise to an epidemic or constitute a disaster, thereby not meeting the requirements of Executive Law section 24.

      The judge who upheld NYC’s mandatory vaccination order disagreed with the judge who overturned the Rockland County public health emergency/quarantine order on the basis of the definition of the word “epidemic.” While the Rockland County judge looked at the percentage of the overall population affected to determine whether there is an epidemic, the judge in the NYC case stated that the appropriate measure is the sudden percentage rise in infection experience by the subject population. “If one were to wait till a significant percentage of overall population were infected, disaster would inevitably ensue.” See C.F. v New York City Dept. of Health and Mental Hygiene, 2019 NY Slip Op 31047(U) (April 18, 2019).

      After an appellate panel upheld judge’s order, the Rockland County Department of Health (RCDOH) Commissioner issued a Communicable Disease & Exposure Exclusion Order, which has three components:

      1. Any person diagnosed with the measles or exposed to a person diagnosed with the measles as evidenced by laboratory evidence or a measles tracing investigation conducted by RCDOH must be excluded from indoor and outdoor places of public assembly located in Rockland County for a period of up to 21 days.
      2. The individual is prohibited from going to or being present at any place of public assembly for any period of time with exceptions for medical care, emergency situations and court appointments.
      3. Individuals are required to cooperate with RCDOH public health authorities by providing information regarding details of one's illness, exposures and contacts.

      Failure to comply can result in a $2,000 fine per violation per day. 

      16.7 Other Emerging and Re-emerging Diseases

      EVD and measles are just two of the many emerging and re-emerging diseases of concern. Other infectious diseases of concern include whooping cough, polio, chikungunya, and avian influenza. Most of these diseases are reportable under District law.

      See section 7.0 and Appendix 5.0 of the Manual for more information about notifiable diseases.

      CDC developed A CDC Framework for Preventing Infectious Diseases: Sustaining the Essentials and Innovating for the Future (CDC’s ID Framework) to provide a roadmap for improving the U.S.’s ability to prevent known infectious diseases and to recognize and control rare, highly dangerous, and newly emerging threats through a strengthened, adaptable, and multi‐purpose U.S. public health system. While the primary purpose of CDC’s ID Framework is to guide CDC’s infectious disease activities, the document also seeks to advance collective action to prevent and control infectious diseases, recognizing the realities of the current fiscal climate and our changing public health and healthcare environments.

  16. FEDERAL CONTROL OF COMMUNICABLE DISEASES

    • 17.1 Summary

      Under section 361 of the Public Health Service Act (42 U.S.C. § 264), the United States Secretary of Health and Human Services (HHS Secretary) is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the U.S. and between states. This authority has been delegated to the Centers for Disease Control and Prevention (CDC). CDC is authorized to detain, medically examine, and release individuals coming into the U.S. and traveling between states who are suspected of carrying certain communicable diseases. CDC and United States Department of Homeland Security (DHS) have developed a public health Do Not Board (DNB) list and Public Health Boarder Lookout (Lookout) to prevent individuals with certain communicable diseases from entering, leaving, or traveling within the U.S. CDC has also issued criteria for requesting federal travel restrictions for public health purposes.

      CDC has published a Questions and Answers about the Final Rule for Control of Communicable Diseases: Interstate (Domestic) and Foreign Quarantine.

      17.2 Federal Authority

      The United States Secretary of Health and Human Services (HHS Secretary) is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the U.S. and between states under section 361 of the Public Health Service Act (42 U.S.C. § 264). This authority has been delegated to the Centers for Disease Control and Prevention (CDC). CDC updated its regulations regarding control of interstate and foreign communicable disease in 2017. Under 42 Code of Federal Regulations parts 70 and 71, CDC is authorized to detain, medically examine, and release persons arriving into the U.S. and traveling between states who are suspected of carrying certain communicable diseases. Under this authority, CDC routinely monitors individuals in the U.S. for signs or symptoms of communicable diseases. If a quarantinable disease is suspected or identified, CDC may issue a federal isolation or quarantine order. An individual may be conditionally released from quarantine if they comply with medical monitoring and surveillance. See Legal Authorities for Isolation and Quarantine.

      CDC exercised its isolation and quarantine authority in 2020 during the novel coronavirus pandemic. See COVID-19: Current Travel Restrictions and Quarantine Measures; Covid-19 — The Law and Limits of Quarantine.

      17.3 Interstate Quarantine

      17.3.1    Definitions

      • “Quarantinable communicable disease” is one of the diseases listed in an Executive Order and is currently limited to cholera, diphtheria, infectious tuberculosis (TB), plague, smallpox, yellow fever, and viral hemorrhagic fevers (such as Marburg, Ebola Virus Disease (EVD), Lassa fever, and Crimean-Congo), severe acute respiratory syndromes (SARS), and influenza caused by novel or re-emergent influenza viruses that are causing or have the potential to cause a pandemic). 42 C.F.R. § 70.1, Executive Order 13295 (April 4, 2003), as amended by Executive Order 13375 (April 1, 2005) and Executive Order 13674 (July 31, 2014).
         
      • “Reasonably believed to be infected” is specific articulable facts upon which a public health officer could reasonably draw the inference that an individual has been exposed, either directly or indirectly, to the infectious agent that causes a quarantinable communicable disease and that as a consequence of the exposure, the individual is or may be harboring in the body the infectious agent of that quarantinable communicable disease. 42 C.F.R. § 70.1.
         
      • “Qualifying stage” is (1) the communicable stage of a quarantinable communicable disease, or (2) the precommunicable stage of the quarantinable communicable disease, but only if the quarantinable communicable disease would be likely to cause a “public health emergency” if transmitted to other individuals. 42 C.F.R. § 70.1.
         
      • “Precommunicable stage” is the stage beginning upon an individual's earliest opportunity for exposure to an infectious agent and ending upon the individual entering or reentering the communicable stage of the disease or, if the individual does not enter the communicable stage, the latest date at which the individual could reasonably be expected to have the potential to enter or reenter the communicable stage. 42 C.F.R. § 70.1.
         
      • “Public health emergency” is:
        (1) Any communicable disease event as determined by the CDC Director with either documented or significant potential for regional, national, or international communicable disease spread or that is highly likely to cause death or serious illness if not properly controlled; or
        (2) Any communicable disease event described in a Department of Health and Human Services (HHS) public health emergency declaration pursuant to the Public Health Service (PHS) Act; or
        (3) Any communicable disease event the World Health Organization (WHO) is notified about that may constitute a Public Health Emergency of International Concern (PHEIC); or
        (4) Any communicable disease event the WHO determines to be a PHEIC; or
        (5) Any communicable disease event for which the WHO issues temporary or standing recommendations for preventing or detecting the occurrence or reoccurrence of the communicable disease.
        42 C.F.R. § 70.1.
         
      • “Non-invasive” is procedures conducted by an authorized public health worker (i.e., an individual with education and training in the field of public health) or another individual with suitable public health training, and includes the visual examination of the ear, nose, and mouth; temperature assessments using an ear, oral, cutaneous, or noncontact thermometer, or thermal imaging; and other procedures not involving the puncture or incision of the skin or insertion of an instrument or foreign material into the body or a body cavity excluding the ear, nose, and mouth. 42 C.F.R. § 70.1.
         
      • “Conditional release” is the temporary supervision by a public health official or designee of an individual or group who may have been exposed to a quarantinable communicable disease to determine the risk of disease spread, including public health supervision through in-person visits, telephone, or through electronic or Internet-based monitoring. 42 C.F.R. § 70.1.
         
      • “Medical examination” is the assessment of an individual by an authorized and licensed health worker to determine the individual's health status and potential public health risk to others and may include the taking of a medical history, a physical examination, and collection of human biological samples for laboratory testing as may be needed to diagnose or confirm the presence or extent of infection with a quarantinable communicable disease. 42 C.F.R. § 70.1.

      See section 8.2 of the Manual for quarantine and isolation definitions.

      17.3.2    Apprehension and Detention of Person with Quarantinable Communicable Disease 

      The CDC Director may authorize a person’s apprehension, medical examination, quarantine, isolation, or conditional release when the person is reasonably believed to be infected with a quarantinable communicable disease in a qualifying stage and is:

      • Engaging or about to engage in interstate travel; or
      • A probable source of infection to others who may be engaging in interstate travel.

      42 C.F.R. 70.6(a).

      Individuals who have been apprehended or held in quarantine or isolation must be provided with adequate food and water, appropriate accommodation, appropriate medical treatment, and means of necessary communication. 42 C.F.R. 70.6(b).

      Some legal scholars have criticized the “reasonable belief” standard provided in 42 C.F.R. § 70.6(a) for federal quarantine authority, arguing that it provides the federal government with too much enforcement discretion. They point to the Supreme Court’s decision in Foucha v. Louisiana, 504 U.S. 71 (1992), where the court explained that involuntary commitment does not violate the constitutional rights of people with mental illnesses when there is sufficient evidence to conclude that they have a mental illness and present a danger to themselves or others, as providing the proper standard: government officials should have to prove that the person has a quarantinable communicable disease and presents a risk of harm to public health in order to avoid potential constitutional due process violations.

      17.3.3    Measures in the Event of Inadequate Local Control 

      If the CDC Director determines that the measures taken by state or territorial health authorities are not sufficient to prevent the spread of communicable diseases to other states or territories, the CDC Director may take measures to prevent the spread of such diseases as deemed reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection. 42 C.F.R. § 70.2.

      17.3.4    Public Health Prevention Measures to Detect Communicable Disease

      The CDC Director may conduct public health prevention measures at U.S. airports, seaports, railway stations, bus terminals, and other locations where individuals may gather to engage in interstate travel, through non-invasive procedures deemed appropriate by the CDC Director to detect the presence of communicable diseases. 42 C.F.R. § 70.10(a). The CDC Director may require individuals to provide contact information such as addresses, telephone numbers, email addresses, and other contact information, information regarding their intended destination, health status, known or possible exposure history, and travel history. 42 C.F.R. § 70.10(b).

      17.3.5    Medical Examinations

      The CDC Director may require an individual to undergo a medical examination as part of a federal order for quarantine, isolation, or conditional release for a quarantinable communicable disease. 42 C.F.R. § 70.12(a). As part of the federal order, the individual must be advised that the medical examination, which must be promptly arranged, will be conducted by an authorized and licensed health worker, and with prior informed consent. 42 C.F.R. § 70.12(b).

      As part of the medical examination, the individual may be required to provide information and undergo such testing as may be reasonably necessary to diagnose or confirm the presence or extent of infection with a quarantinable communicable disease. 42 C.F.R. § 70.12(c). Individuals reasonably believed to be infected based on the medical examination results may be isolated. If such results are inconclusive or unavailable, individuals may be quarantined or conditionally released in accordance with 42 C.F.R. part 70. 42 C.F.R. § 70.12(d).

      At CDC’s sole discretion and subject to the availability of appropriations, the CDC Director may authorize payment for the care and treatment of individuals subject to medical examination, quarantine, isolation, or conditional release. 42 C.F.R. § 70.13(a)-(b).

      17.3.6    Requirements Related to Federal Orders for Quarantine, Isolation, or Conditional Release 

      A federal order authorizing quarantine, isolation, or conditional release must be in writing, signed by the CDC Director and contain the following:

      • The identity of the individual or group subject to the order;
      • The location of the isolation or quarantine or, in the case of conditional release, the entity to and means by which the individual must report for public health supervision;
      • An explanation of the factual basis underlying the CDC Director’s reasonable belief that the individual is in the qualifying stages of a quarantinable communicable disease;
      • An explanation of the factual basis underlying the CDC Director’s reasonable belief that the individual is moving or about to move from one state into another or constitutes a probable source of infection to others who may be moving from one state into another;
      • An explanation that the federal order will be reassessed no later than 72 hours after it has been served, as well as an explanation of such medical review, including the right to request a medical review, present witnesses and testimony at the medical review, be represented at the medical review by either an advocate (e.g., an attorney, family member, or physician) at the individual’s own expense, or, if indigent, have representatives appointed at the government’s expense;
      • An explanation of the criminal penalties for violating a federal order of quarantine, isolation, or conditional release; and
      • An explanation that if a medical examination is required as part of the federal order, the examination will be conducted by an authorized and licensed health worker, and with the individual’s prior informed consent.

      42 C.F.R. § 70.14(a).

      A federal order authorizing quarantine, isolation, or conditional release must be served on the individual no later than 72 hours after the individual has been apprehended, except that the federal order may be published or posted in a conspicuous location if the federal order is applicable to a group and individual service would be impractical. 42 C.F.R. § 70.14(b). Translation or interpretation services must be arranged by the CDC Director as needed. 42 C.F.R. § 70.14(c).

      17.3.7    Mandatory Reassessment of Federal Orders for Quarantine, Isolation, or Conditional Release

      No later than 72 hours after service of the federal order, the CDC Director must reassess the need to continue the quarantine, isolation, or conditional release of an individual. 42 C.F.R. § 70.15(a). As part of the reassessment, CDC must:

      • Review all records considered in issuing the federal order, including travel records, records evidencing exposure or infection with a quarantinable communicable disease, as well as any relevant new information; and
      • Consider and make a determination regarding whether less restrictive alternatives would adequately serve to protect public health.

      42 C.F.R. § 70.15(b).

      Upon a request by an individual under federal quarantine, isolation, or conditional release, the CDC Director must arrange for a medical review as soon as practicable. Such request may only occur after the CDC Director’s mandatory reassessment under 42 C.F.R. § 70.15 and following service of a federal order continuing or modifying the quarantine, isolation, or conditional release. The purpose of the medical review is to determine whether the CDC Director has a reasonable belief that the individual is infected with a quarantinable communicable disease in a qualifying stage. 42 C.F.R. § 70.16(a)-(c). The medical reviewer is a physician, nurse practitioner, or similar medical professional qualified in the treatment and diagnosis of disease who is appointed by the HHS Secretary or the CDC Director provided that the employee differs from the CDC official who issued the federal order for isolation, quarantine, or conditional release. 42 C.F.R. § 70.1.

      42 C.F.R. part 70 does not specify penalties for violations. However, the PHS Act provides penalties for persons who violate regulations promulgated under 42 U.S.C. § 264. Such penalties are a fine of not more than $1,000 or imprisonment for not more than one year, or both. 42 U.S.C. § 271(a).

      Nothing in 42 C.F.R. § 70.14 affects the constitutional or statutory rights of individuals to receive judicial review of their federal detention. 42 C.F.R. § 70.14(d).

      See Appendix 3.0 for a federal public health orders and interstate travel flowchart.

      17.4 Foreign Quarantine

      17.4.1    Definitions 

      • “Quarantinable communicable disease” is one of the diseases listed in an Executive Order and currently limited to cholera, diphtheria, infectious TB, plague, smallpox, yellow fever, and viral hemorrhagic fevers (such as Marburg, EVD, Lassa fever, and Crimean-Congo), severe acute respiratory syndromes, and influenza caused by novel or re-emergent influenza viruses that are causing or have the potential to cause a pandemic). 42 C.F.R. § 71.1, Executive Order 13295 (April 4, 2003), as amended by Executive Order 13375 (April 1, 2005) and Executive Order 13674 (July 31, 2014).
         
      • “Non-invasive” is procedures conducted by an authorized public health worker or another individual with suitable public health training and includes the visual examination of the ear, nose, and mouth; temperature assessments using an ear, oral, cutaneous, or noncontact thermometer, or thermal imaging; and other procedures not involving the puncture or incision of the skin or insertion of an instrument or foreign material into the body or a body cavity excluding the ear, nose, and mouth. 42 C.F.R. § 71.1.
         
      • “Conditional release” is surveillance as defined under 42 CFR part 71 and includes public health supervision through in-person visits by a health official or designee, telephone, or through any electronic or internet-based means as determined by the CDC Director. 42 C.F.R. § 71.1.
         
      • “Surveillance” is the temporary supervision by a public health official or designee of an individual or group, who may have been exposed to a quarantinable communicable disease, to determine the risk of disease spread. 42 C.F.R. § 71.1.

      17.4.2    Public Health Prevention Measures to Detect Communicable Disease 

      The CDC Director may conduct public health prevention measures at U.S. ports of entry or other locations through non-invasive measures to detect the potential presence of communicable diseases. 42 C.F.R. § 71.20(a). The CDC Director may require individuals to provide contact information such as addresses, telephone numbers, email addresses, and other contact information, as well as information regarding their intended destination, health status, known or possible exposure history, and travel history. 42 C.F.R. § 71.20(b).

      17.4.3    Detention of Persons with Quarantinable Communicable Disease 

      If the CDC Director has reason to believe that any arriving person is infected with or has been exposed to a quarantinable communicable diseases, such person may be isolated, quarantined, or placed under surveillance. 42 C.F.R. § 71.32(a).

      Individuals who have been apprehended or held in quarantine or isolation must be provided with adequate food and water, appropriate accommodation, appropriate medical treatment, and means of necessary communication. 42 C.F.R. § 71.33(a).

      17.4.4    Medical Countermeasures 

      The CDC Director may require that an individual arriving in the U.S. undergo a medical examination as part of a federal order for quarantine, isolation, or conditional release. 42 C.F.R. § 71.36(a). As part of the medical examination, the individual may be required to provide information and undergo testing reasonably necessary to diagnose or confirm the presence, absence, or extent of infection with a quarantinable communicable disease. 42 C.F.R. § 71.36(c). Individuals reasonably believed to be infected, based on the medical examination results, may be isolated; if such results are inconclusive or unavailable, individuals may be quarantined or conditionally released. 42 C.F.R. § 71.36(d).

      At the CDC’s sole discretion and subject to the availability of appropriations, the CDC Director may authorize payment for the care and treatment of individuals subject to medical examination, quarantine, isolation, or conditional release. 42 C.F.R. § 71.30(a)-(b).

      17.4.5    Requirements Related to Federal Orders for Quarantine, Isolation, or Conditional Release 

      A federal order authorizing quarantine, isolation, or conditional release must be in writing, signed by the CDC Director and contain the following:

      • The identity of the individual or group subject to the order;
      • The location of the isolation or quarantine or, in the case of conditional release, the entity to and means by which the individual must report for public health supervision;
      • An explanation of the factual basis underlying the CDC Director’s reasonable belief that the individual is in the qualifying stages of a quarantinable communicable disease;
      • An explanation of the factual basis underlying the CDC Director’s reasonable belief that the individual is moving or about to move from one state into another or constitutes a probable source of infection to others who may be moving from one state into another;
      • An explanation that the federal order will be reassessed no later than 72 hours after it has been served, as well as an explanation of such medical review, including the right to request a medical review, present witnesses and testimony at the medical review, be represented at the medical review by either an advocate (e.g., an attorney, family member, or physician) at the individual’s own expense, or, if indigent, have representatives appointed at the government’s expense;
      • An explanation of the criminal penalties for violating a federal order of quarantine, isolation, or conditional release; and
      • An explanation that if a medical examination is required as part of the federal order that the examination will be conducted by an authorized and licensed health worker, and with the individual’s prior informed consent.

      42 C.F.R. § 71.37(a).

      A federal order authorizing quarantine, isolation, or conditional release must be served on the individual no later than 72 hours after the individual has been apprehended, except that the federal order may be published or posted in a conspicuous location if the federal order is applicable to a group and individual service would be impractical. 42 C.F.R. § 71.37(b). Translation or interpretation services will be arranged by the CDC Director as needed. 42 C.F.R. § 71.37(c).

      17.4.6    Mandatory Reassessment of Federal Orders for Quarantine, Isolation, or Conditional Release 

      No later than 72 hours after service of the federal order, the CDC Director must reassess the need to continue the quarantine, isolation, or conditional release of an individual. 42 C.F.R. § 71.38(a). As part of the reassessment, CDC must:

      • Review all records considered in issuing the federal order, including travel records, records evidencing exposure or infection with a quarantinable communicable disease, as well as any relevant new information; and
      • Consider and make a determination regarding whether less restrictive alternatives would adequately serve to protect public health. 42 C.F.R. § 71.38(b)-(c).

      Upon a request by an individual under federal quarantine, isolation, or conditional release, the CDC Director must arrange for a medical review as soon as practicable. Such request may only occur after the CDC Director’s mandatory reassessment under 42 C.F.R. § 71.38 and following service of a federal order continuing or modifying the quarantine, isolation, or conditional release. The purpose of the medical review is to determine whether the CDC Director has a reasonable belief that the individual is infected with a quarantinable communicable disease in a qualifying stage. 42 C.F.R. § 71.39(a)-(c). The medical reviewer is a physician, nurse practitioner, or similar medical professional qualified in the treatment and diagnosis of disease who is appointed by the HHS Secretary or the CDC Director and may include a HHS or CDC employee provided that the employee differs from the CDC official who issued the federal order for isolation, quarantine, or conditional release. 42 C.F.R. § 71.1.

      Individuals in violation of 42 C.F.R. part 71 are subject to a fine of no more than $100,000 if the violation does not result in a death or one year in jail, or both. If the violation results in a death, the person is subject to a fine of no more than $250,000 or one year in jail, or both. 42 C.F.R. § 71.2.

      See Appendix 3.0 for a federal public health orders and foreign travel flowchart.

      17.5 Public Health Do Not Board List

      In June 2007, CDC and the United States Department of Homeland Security (DHS) developed a public health Do Not Board (DNB) list to prevent commercial air travel by individuals with certain communicable diseases of public health concern (e.g., TB, measles) arriving into, departing from, or traveling within the U.S. See Federal Air Travel Restrictions for Public Health Purposes --- United States, June 2007--May 2008. The public health DNB list is administered by DHS based on CDC’s requests and is intended to supplement state and/or local public health measures to prevent individuals who are infectious, or reasonably believed to have been exposed to a communicable disease, from boarding commercial aircraft. 80 Fed. Reg. 16400 (March 27, 2015). The communicable disease for which the DNB list may be used are those diseases that would pose a public health threat to travelers if the infected individual was permitted to board a flight. While a state or local health department is usually the initiator of such requests, other agencies, such as the United States Department of State, or foreign public health authorities may also make a request.

      Once an individual is placed on the DNB list, airlines are instructed not to issue the individual a boarding pass for any commercial domestic flight or for any commercial international flight arriving into or departing from the U.S. If an individual is able to board regardless of placement on a DNB list, CDC staff are notified upon detection by DHS to facilitate public health intervention. An individual is typically removed from the DNB List upon receipt by CDC of the treating physician’s or public health authority’s statement or other medical documentation that the individual is no longer infectious, or that the period the individual is at risk of becoming infectious without developing symptoms has lapsed. 80 Fed. Reg. 16400 (March 27, 2015).

      The public health DNB list does not apply to other forms of transportation, such as buses and trains. See Federal and State Quarantine and Isolation Authority.

      See section 17.7 of the Manual for criteria for requesting federal travel restrictions for public health purposes.

      17.6 Public Health Border Lookout

      The Public Health Border Lookout (Lookout) was also developed by CDC and DHS to ensure that any person placed on the DNB list is found if they try to enter or leave the U.S. through any port of entry. Individuals included on the DNB list are assigned a Lookout record. If an individual on the DNB list tries to enter or depart the U.S. through a port of entry, CDC is notified by U.S. Customs and Border Protection. CDC then notifies state and local public health authorities that a person on the Lookout list has been detected so that a thorough public health inquiry and evaluation can be conducted and appropriate actions taken to protect public health if necessary, including quarantine, isolation, and treatment. See https://www.cdc.gov/quarantine/do-not-board-faq.html.

      An analysis of requests for travel restrictions from May 22, 2007 to December 31, 2015 revealed that 396 individuals were placed on the DNB list/Lookout during that time period; the majority were for suspected or confirmed cases of pulmonary TB.

      17.7 Criteria for Requesting Federal Travel Restrictions for Public Health Purposes

      CDC initially published criteria for consideration when making requests to DHS to include an individual on the DNB list and associated Lookout record in 2008. Updated criteria were published in 2015 in the wake of the 2014 Ebola outbreak. 80 Fed. Reg. 16400 (March 27, 2015).

      For an individual to be added to the DNB list, an individual must be known or believed to be infectious with, or at risk for, a serious communicable disease that poses a public health threat to others during travel. In addition, the individual must satisfy one of the following criteria:

      • Not be aware of their diagnosis, have been told of their diagnosis and is non-compliant with public health recommendations, or be unable to locate;
      • Be at risk of traveling on a commercial flight or of traveling internationally by any means; or
      • Need to be placed on the DNB list and Lookout to effectively respond to outbreaks of communicable disease or other conditions of public health concern. 80 Fed. Reg. 16400 (March 27, 2015).

      CDC published an FAQ related to the DNB list and Lookout. See https://www.cdc.gov/quarantine/do-not-board-faq.html. It also published questions and answers related to the updated criteria for adding an individual to the DNB list. See https://www.cdc.gov/quarantine/criteria-for-recommending-federal-travel-restrictions.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fquarantine%2Fqas-frn-travel-restriction.html.

      Diplomatic privileges and immunities are not intended to benefit individuals but to ensure the efficient and effective performance of their official missions on behalf of their governments. Although diplomatic law dictates certain immunities apply to members of diplomatic missions, the U.S. still has a duty to protect its populace and police authorities may intervene to the extent necessary to prevent the commission of a crime or in instances where public safety is in imminent danger. Immunities are intended to benefit the mission of the foreign government or international organization; therefore, an individual does not “own” his or her immunity and it may be waived, in whole or in part, by the mission member’s government. Additionally, the Department of State may request a waiver of immunity in such cases in which the prosecutor advises that they would prosecute but for immunity. To learn more about diplomatic immunity and specific privileges for the various categories of diplomatic mission personnel, visit https://www.state.gov/wp-content/uploads/2019/07/2018-DipConImm_v5_Web.pdf.

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. D.C. Official Code § 7-133(a).
      DC Health 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). D.C. Official Code § 7-133(a)(c).
      Order executed by MPD or designated District employee, who provides the affected person(s) with notice of the order’s contents and a copy of the order. D.C. Official Code § 7-133(b).
      Order expires 24 hours after issuance and individual is released. D.C. Official Code § 7-134(a).
      Order continued by Superior Court judge if probable cause found that individual is likely to cause death or serious harm to others. D.C. Official Code § 7-134(a).
      Detained individual may petition for a discharge hearing. D.C. Official Code § 7-134(b).

      Medical Examination Flowchart

      Individual is detained under D.C. Official Code § 7-131 and 22B DCMR § 210.8.
      DC Health orders examination by appropriate medical personnel (22B DCMR § 210.4) or submission of specimens by individual to determine whether individual is affected with a communicable disease (22B DCMR § 210.5).
      If individual refuses to submit to medical examination, DC Health Director may issue a Removal and Detention Order. 22B DCMR § 210.8.
      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. D.C. Official Code § 7-135(a).
      Individual must be immediately discharged if found not to be affected by communicable disease. D.C. Official Code § 7-135(a).
      Individual may be detained for as long as necessary to protect public health if found to be affected by communicable disease. D.C. Official Code § 7-135(b).
      Individual may petition Superior Court at any time for a discharge hearing. D.C. Official Code § 7-135(b).
      Counsel will be appointed if individual cannot afford counsel. D.C. Official Code § 7-135(b).

      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. D.C. Official Code § 7-2304(a).
      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 D.C. Official Code § 7-2304(a).
      Publication of Order Order must be published in D.C. Register, two general circulation daily newspapers, and posted in public places as soon as practicable given the nature of the emergency. D.C. Official Code § 7-2306(d).
      Powers Given To Mayor • Expend funds • Implement response plans without regard 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 D.C. Official Code § 7-2304(b)
      Duration and Extension of Order Lasts 15 days and may be extended for 15 additional days upon approval of D.C. Council D.C. Official Code § 7-2306

      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, or other emergency events that create an acute and immediate need for volunteer health practitioners. D.C. Official Code § 7-2304.01(a).
      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 D.C. Official Code § 7-2304.01(c).
      Publication of Order Order must be published in D.C. Register, two general circulation daily newspapers, and posted in public places as soon as practicable given the nature of the public health emergency. D.C. Official Code § 7-2306(d).
      Powers Given To Mayor Mayor may appoint healthcare 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. D.C. Official Code § 7-2304.01(d).
      Duration and Extension of Order Lasts 15 days and may be extended for 15 additional days upon approval of D.C. Council. D.C. Official Code § 7-2306.

      Federal Public Health Orders And Interstate Travel, Part 70 Flowchart

      Federal Public Health Orders And Foreign Travel, Part 71 Flowchart

      Inspection and Condemnation Flowchart

      Inspection and Condemnation (click to download)