Message From Executive Counsel - November 2009
The 2009 hurricane season opened with its usual fanfare and thankfully exited with a whimper. As we enter the “dog days of hurricane season”, the time period between the end of one hurricane season and the beginning of the next, our efforts shift to preparing for the 2010 hurricane season.
As we do so, Governor Jindal has just issued an emergency declaration in response to the severe weather which has played havoc on a number of parishes in the northwestern part of the state. There is also the shadow of a swine flu pandemic (see Newsletter) hanging over Louisiana and the entire country. As we view our current circumstances, GOHSEP and the parish offices of emergency preparedness realize that we must truly be “all hazards” capable. Having knowledgeable and effective legal support is crucial to the success of our organizations during times of emergencies and disasters.
I have a number of projects that I hope to bring to fruition in the next few months. Some of them, such as the annual Emergency Management Law Seminar are already in the preparation phase. The seminar is planned to be held in the Spring prior to the commencement of the Legislative Session. I have a small staff of volunteer attorneys who practice emergency management law. They are assisting me in organizing a workshop/table top exercise for the seminar. It will be a break from the usual lecture oriented format and much more instructive.
One of my projects which I am immediately implementing is the building of an emergency management law library. It will take some time to post all of the necessary documents in the web library. We are starting this month with the Louisiana Homeland Security and Emergency Assistance and Disaster Act and the Louisiana Health Emergency Powers Act. Additions will be added every month.
By last count, GOHSEP has received applications from six applicants requesting that their appeals be heard by the Arbitration Board. The first hearing has yet to be scheduled. It will be interesting to observe how the Arbitration Board handles the cases and what affect it will have on the appeals process. I will be watching closely and will provide you with my observations
A Happy Thanksgiving to all of you.
Bernard M. Plaia, Jr.
Newsletter - November 2009
Health Emergency and Their Application
As Louisiana faces the possibility of a swine flu epidemic, a review of the state laws and federal regulation and policy which govern public health emergencies seems to be in order. As you will see, the parishes have a more simplified process than the state, but an understanding of the process and exactly what the powers of the state are during a public health emergency is helpful.
The three state legal provisions which govern a public health emergency are:
- The Louisiana Health Emergency Powers Act (LHEPA), LRS 760-771
- Public Health and Safety LRS 40 Sections 4,5,7,10,15,16 and 18
- The Louisiana Homeland Security and Emergency Assistance and Disaster Act (LHSEADA), LRS 721-738
Pandemic influenza emergencies are governed by the following federal regulation and FEMA policy:
- Emergency Declarations, 44 CFR 206.35
- FEMA Disaster Assistance Policy (DAP) 9523.17
Prior to the Governor issuing any public health emergency declaration, the State Health Officer (SHO) has broad powers to control communicable disease(s) within the state. Once the Governor declares a public health emergency, the focus shifts from the SHO to the Governor and to the Director of the Governor’s Office of Homeland Security and Emergency management (GOHSEP).
Since the emergency powers granted to the Governor under the LHSEADA seem to be the same as those granted under the LHEPA, there appears to be no need for the Governor to issue a declaration under the LHSEADA if one is going to be issued under the LHEPA. A declaration under the LHEPA places the authority for the response and recovery of the state public health emergency with the Director of GOHSEP who shall exercise his authority and responsibility through consultation with the Secretary of the Department of Health and Hospitals.
Should a state require assistance from the federal government in response to the pandemic, FEMA currently interprets the Stafford Act as allowing a state to request an Emergency Presidential Declaration but not a Major Disaster Presidential Declaration. Should the emergency declaration be granted, FEMA will reimburse certain expenses as outlined in DAP 9523.17.
The LHEPA does not have any provisions which allow a parish president or a municipal chief executive officer to declare a public health emergency. They have to rely on the emergency powers granted to them under LHSEADA to respond to and recover from the incident.