James Hodge: Public Health Law During Hurricane Isaac, West Nile and Other Emergencies

Sep 4, 2012, 12:42 PM

The Network for Public Health Law, a program of the Robert Wood Johnson Foundation, provides legal assistance and resources for local, tribal, state and federal officials; public health practitioners; attorneys; policy-makers; and advocates. In the last few weeks James G. Hodge, Jr., Principal Investigator and Director of the Network’s Western region, and other staff attorneys, have fielded calls and distributed critical guidance on legal issues related to combating West Nile Virus and preparing for Hurricane Isaac. The hurricane has left seven dead, and, as of the Labor Day weekend, hundreds of thousands of people without power or unable to return home. NewPublicHealth caught up with James Hodge during an especially busy couple of weeks.

Scroll to the bottom for additional advice on combating West Nile Virus.

NewPublicHealth: What was your message to public health officials during Isaac?

James Hodge: My message was that if you need objective legal information about how best to support your responses to protect the public’s health, you can come to us. We’ve got our lines open here at our Western Region office here at the Arizona State University, and all across the country people know how to reach us through the Network through our other regional offices.

NPH: Have questions about Hurricane Isaac kept you busy?

James Hodge: Yes, we’ve been very much on standby on all those sorts of questions because they all are percolating. Not everyone is facing a severe disaster directly, but people are now at risk in other ways. They’re vulnerable. They have health care facilities and pharmacies, for example, that they’re no longer able to access. These are immediate issues, and they’re ones that require immediate responses. Officials are asking, legally, how do we help to facilitate protecting the public’s health during these times? There are all sorts of routes to do it, one of which includes declarations of emergency, which you’re seeing in all the states that were affected directly by the storms, as well as at the federal level.

These emergency declarations allow for very specific interventions to be taken that wouldn’t be possible in non-emergencies. I’ll give you one great example: In issuing both a state of emergency and a state of public health emergency, Louisiana was able to authorize and mobilize out-of-state emergency medical workers to practice as if they’re licensed in the state for the duration of the emergency through what is known as licensure reciprocity. This allows federal volunteers and other state volunteers that may come in from neighboring jurisdictions to step into Louisiana and provide care for persons who need it most. They’re showing up in shelters. They’re showing up in clinics. Having personnel able to provide care to those individuals that need it most, that’s really essential.

We’ve also advised on the potential to switch to a crisis standard of care, as the Institute of Medicine calls it, in these specific affected places. This allows doctors, nurses and others to alter their practice based on the urgency of the situation.

NPH: What would be an example of that?

James Hodge: In a non-emergency, what and how a medical practitioner may review a particular person’s specific diagnosis or needs is going to be very much set by the standard of care. But when we’ve got potential patients that need care now and quickly, and we don’t have all the very best available equipment, best supplies, and we can’t get them because of flood conditions, we switch to a crisis standard. That allows personnel to operate in a medical triage-like environment for a brief period of time for the purpose of ensuring we can get some care to some individuals without those practitioners feeling concerned that they’ve breached or acted inconsistent with the existing standard of care. Switching to a crisis standard of care allows those practitioners to engage in the type of triage practices they need maybe for 24 hours, maybe for longer. It will depend, of course, on how much and how long the disaster impacts the lives of these individuals. It’s a critical change, though.

An example might be that in a best-case scenario, we would be able to, let’s say, run an x-ray on a particular person who may, in their evacuation efforts, have potentially injured their leg. In a crisis standard, if we do not have access to working x-ray machines because power’s out or the hospital’s flooded or something along those lines, we’ll do the best we can to set the leg properly, and we’ll do it based on the best available data on site. It’s not ideal, it’s not perfect, but it is consistent with implementing a crisis standard of care.

NPH: How is this storm, albeit much less severe for most people, building on work you’ve done before?

James Hodge: Well, I think one of the great things that we all brought into the network was a lot of experience and a track record of how to address these types of issues. During Katrina, for example, I and other attorneys were working with federal and state partners quite extensively on some of the very same questions. Because of that track record, what we’re finding is that people are coming to us. They’re asking the right questions, and we’re getting them information that we know in real time because we’re hearing about it through various federal and state partners.

NewPublicHealth: You’ve been fielding two emergency situations. The Centers for Disease Control and Prevention says this may be the worst year yet for West Nile Virus. Has that increased the number of questions the Network is receiving?

James Hodge: West Nile virus has taken on a new life this particular summer and into the Fall. CDC is reporting massive new reported outbreaks, and, regretfully now at least 66 deaths have been attributed to West Nile across the nation. The types of questions we anticipate are starting to come up as states and localities work to respond to the spread.

One key question is to what degree do the pesticides themselves pose risk to humans, and spraying raises environmental concerns as well, and was litigated in New York State back when West Nile virus originated in 1999 as a major threat. Jurisdictions now have made adjustments to their particular practices and are using the safest pesticides possible. They’re spraying in the early morning hours when people aren’t out and about and providing advanced notice of when they will be spraying as well.

We haven’t heard about the potential environmental claims coming up presently that we saw in New York State, but another technique that’s being used to try to stem the outbreaks, can raise additional legal concerns—abatement of public nuisances. One of the things public health authorities are empowered to do is to abate the public nuisance that is exacerbating the spread of the virus, which is standing water that may exist in people’s property such as a swimming pool that’s half full and not being used. These are great breeding grounds for mosquitoes. So, public health authorities want to gain access to people’s land in order to drain a pool or tip over a bucket of water. Public health authorities have the ability to abate nuisances, but they tend to have to get some sort of legal authority like a warrant in order to enter property. What you’re seeing in some jurisdictions is authority to allow authorities to step onto those properties without having to go through all the rigmarole that it might take otherwise to gain access to private property.

NPH: What other approaches are public health authorities taking that have needed some legal thinking?

James Hodge: Some jurisdictions may consider limited curfews in which they’re voluntarily asking individuals, especially persons at increased risk, to remain indoors for some period of time, especially during the early morning hours or the late evening hours when mosquitoes tend to be more active. These curfews are voluntary. They’re highly consistent with public health practice, generally not restricted or objected to by citizens. To the degree to which those are implemented voluntarily, they don’t raise any legal concerns particularly.

NPH:  What are you doing now to help prepare for a situation that you know could occur, so for example, hurricane season is June through November. Has the network put in place educational materials that are accessible as well as phone opportunities?

James Hodge: Yes. First of all, we have not waited for these questions. We have solicited these questions, so we sent out very systematic email communications, built a brief website to post some of the documents that we’re becoming aware of, and we sent that out to thousands of people that we’re aware might find that relevant.

And, emergency preparedness questions are one of our dominant areas that we receive inquiries on. Every month we get more and more inquiries on emergency legal preparedness, and the reason for that is, of course this is always an ongoing activity in states, in the federal government, local governments as well, but we’ve produced tools that have made this hopefully easier for them. One very prominent example of that in conjunction with the National Association of County and City Health Officials, we produced a really systematically delivered curriculum that is something public health officials can use in their own jurisdictions on how to prepare legally for emergencies.

It provides lots of advanced knowledge of the types of tools and legal questions that will arise so that local counsel in those areas can be better informed, and so that public health and emergency management officials there are much better informed about the types of questions they’ll deal with. While we stand ready to be a resource whenever people need us, I’ll be the first to say you’ve got to be ready in real time as well. When we have emerging issues like what we saw with Isaac, no matter how much preparation you do on the legal front, questions will arise and without real time answers, the law can become an impediment to their response efforts, and we do not want to see that happen.

NPH: And, the law could be an impediment not because officials believe something to be illegal, but they simply don’t act because they’re concerned that there could be legal repercussions afterwards?

James Hodge: Correct. It’s something we’ve seen time and time again. There really are two major themes here. It’s the worker at a public health department or a health care worker or emergency management official who, first of all, acts without knowledge of the law in a way that could be highly inconsistent and potentially damaging. That’s a problem, but it’s more so the problem of the individual who fails to act because of concerns about what the legal implications are. All they know is they might be required to act in a way that they understand is outside the convention of what they would do in a non-emergency event. Too often, what they don’t know is the law, through these declarations, through the institution of emergency or crisis standard of care, is supporting what they could do. It’s giving them authority to go forward and enact certain initiatives. If they don’t know that, they may sit on the sidelines waiting for that answer. We can’t have that in an emergency response. If you have people waiting on the sidelines anticipating they won’t be authorized to respond until they get that piece of legal information, people will continue to suffer.

  • The easiest and most effective way to avoid West Nile is to prevent mosquito bites.
  • When outside, use insect repellent that contains an EPA-registered active ingredient, such as DEET. Never use DEET on infants under 2 months old. Young children should not apply DEET on themselves, and do not apply to their hand, eye or mouth areas or on any wounds. Use caution and use lower concentrations of DEET (such as 10 percent) especially on young children.
  • Mosquitos are most active when it is darker such as during dawn or dusk. Wear long sleeves and pants during that time or consider staying indoors during those hours.
  • Put screens on any windows or sliding doors to keep mosquitos out.
  • Get rid of standing water near your house or in your lawn, such as puddles, flower pots, buckets, barrels and child wading pools when they’re not in use. These are mosquito breeding sites. Keep fountain waters flowing if possible and maintain clean gutters around your property.
  • Don’t handle dead birds. Mosquitos become infected when they feed on infected birds. Contact your local health department for instructions on reporting and disposing the body.

This commentary originally appeared on the RWJF New Public Health blog.