EIIP Virtual Forum Presentation – February 23, 2005

Legal and Policy Issues
in Emergency Management and Homeland Security

William C. Nicholson
Author and Adjunct Professor
Widener University School of Law
University of Delaware.

Amy Sebring
EIIP Moderator

The following version of the transcript has been edited for easier reading and comprehension. A raw, unedited transcript is available from our archives. See our home page at http://www.emforum.org

[Welcome / Introduction]

Amy Sebring: On behalf of Avagene Moore and myself, welcome to the EIIP Virtual Forum! Today's topic is Legal and Policy Issues in Emergency Management and Homeland Security. It is my pleasure to introduce today's speaker, Bill Nicholson. Bill is a nationally known expert in homeland security law and policy. He serves as an Adjunct Professor at the Widener University School of Law, where he conceived and instructs a course entitled "Terrorism and Emergency Law."

Bill also serves as an Adjunct Professor at the University of Delaware, where he teaches his "Homeland Security Law and Policy" course. He is author of the book, Emergency Response and Emergency Management Law, and has contributed a chapter to the FEMA Higher Education Project's Introduction to Emergency Management Textbook titled "Legal Issues in Emergency Management." His latest effort is a book, Homeland Security Law and Policy that is currently in press. Please see the Background Page for further biographical information and links to related material.

Welcome Bill, and thank you for joining us today. I now turn the floor over to you.

[Presentation]

Bill Nicholson: First, a message to all. I am not your attorney, and I am not here to provide legal advice. For legal advice, you need to talk to your own attorney. For those who work for organizations, that would be counsel for the organization. On the state level, legal standards vary, so it is vital to obtain local expertise. I am, however, happy to share information with you.

Today we are going to talk about Emergency Management and Homeland Security legal and policy issues. It's a tough topic, because these matters are many and constantly evolving. Perhaps most important to emergency managers from both the public and private sectors are the changing standards under which they must operate.

The Emergency Management Accreditation Program (EMAP) and NFPA 1600 Recommended Practices for Disaster Management which it uses as a structure, is a standard which may evolve into the status of law as it becomes the "industry norm" for emergency management. States also have laws that must be obeyed by emergency management. The private sector is under increasing pressure to adopt similar approaches to business continuity. The Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458 (IRTP Act), signed in December 2004, endorses NFPA 1600 as a "voluntary" national preparedness standard, and states as the sense of the Congress that the Secretary of Homeland Security should promote voluntary adoption of standards such as NFPA 1600 by businesses. Again, for the private sector, NFPA 1600 is on the way to becoming the "industry norm," a route that frequently leads to becoming a legal standard as well. NFPA 1600 also imposes a duty to adhere to current laws, policies, and industry practices, and is therefore an evolving standard.

A recent case out of Maryland is of interest to private sector emergency planners as well as to government sector folks. It involved a mall that had an evacuation. One store proceeded to evacuate its customers according to its plan, which included sending them through an underground area. A disabled woman was trapped there and unable to evacuate. Elevators had been shut down and all the exits had stairs. Evacuation plans were found to be "public accommodation's policies" under the Americans with Disabilities Act (ADA), resulting in their being covered under Title III. As a result, all places of public accommodation must consider the needs of people with disabilities in developing emergency evacuation plans. This applies to units of government as well. The case was a local one, but it has national implications. (Judge John W. Debelius III of the Circuit Court for Montgomery County, Maryland issued the decision on December 28, 2004.)

Given the constantly changing nature of homeland security and emergency management, it is important to consider involving legal counsel in all phases of emergency management. This approach is known as "litigation mitigation." The most important step is becoming a pro-active risk manager rather than a reactive risk ignorer. A key aspect of being truly pro-active is enlisting legal counsel as a partner in preventing future liability. Legal counsel can provide extremely helpful input before problems arise to lessen the likelihood of liability. Working together with legal counsel in this way is the essence of "litigation mitigation." The goals of litigation mitigation are threefold:

1. lowered exposure to legal claims;

2. increased life safety; and

3. greater property protection.

Legal counsel is trained to view the first of these three elements as his or her priority. All three are vital for a risk manager public or private risk manager. Safety and property protection flow naturally from legal shelter. Business owners and units of government that bring their attorneys on board as pro-active partners in mitigation will find many benefits.

For example, the lawyer will tell clients to obey fire and building codes, and suggest that individual businesses might view codes as floors for performance rather than ceilings. Business people and code writers might well have different goals in their approach to legal standards. Among others things, the code writer wants a fire resistant structure with good exiting. Statistics show that the average small business will fail if it can't open its doors after a month closure. The business owner may wish to upgrade fire resistance (installing sprinklers for example) to assure that any pause in business will be minimal. The results of such a step will be less liability exposure (going beyond the codes shows a safe mind set), more property protection (higher fire resistance), and greater life safety.

Units of government and businesses need to work pro-actively with their lawyers to make sure that employees both fulfill their duties and create the proper records to document that they have done so. With the attorney's assistance, written standard operating procedures (SOPs) can be created to provide benchmarks for performance of physical tasks and record keeping. Attorney input helps create a system for periodic monitoring of both actions on the job and record keeping to ensure compliance with SOPs. SOPs need to address a variety of legal subjects, including OSHA compliance, employment practices, business and government ethics, conflicts of interest, etc.

Additional areas of potential liability must be considered today that would not have been of great interest to most risk managers even ten years ago. Leaders must think about terrorism and its consequences as part of comprehensive preparedness. One thing that has changed in the age of terrorism is our attitude toward public records. Prior to 9-11, in most states the burden was on the person who wished to keep government records confidential. The new attitude is "unless a type of record is ordered to be open, keep it confidential." This has led to changes in state laws, with emergency plans being taken off the Web and limited access allowed to records that might otherwise be available under Emergency Planning and Community Right-to-Know Act (EPCRA) or other standards. As might be expected, environmental groups have a different perspective, which they may litigate.

Another issue related to terrorism is isolation or quarantine for biological threats. The 2001 anthrax attacks, numerous copycat events, and the SARs epidemic brought up the sufficiency of existing powers for quarantine and evacuation. During the SARs epidemic, one non-cooperative patient was physically detained to prevent the spread of the disease. Authorities for public health are typically matters of state law.

The Centers for Disease Control and Prevention supported creation of a broadly accepted standard, the Model State Emergency Health Powers Act (MSEHPA). Many states have adopted MSEPHA or a variation on it. The Model Act grants broad powers to states. State Governors get wide powers to declare and enforce Public Health Emergencies. MSHEPA lets the state seize medical supplies and drugs during a declared Public Health Emergency. Authorities could also take, use, and destroy property.

Some say that the MSEHPA’s broad powers are overly intrusive on important freedoms. In contrast to the Privacy Rule of the Health Information Portability and Accountability Act of 1996 (HIPAA), MSHEPA uses a "disclose now, obtain consent later" approach to medical information. There are, however, many "preventative" cases from the health care arena. Their point is that, in an emergency, the government must have authority to fight dangers like bioterrorism. Pro-active involvement in terrorism and security matters has become ever more the norm. Lawyers need to be part of the team that deals with these and other matters during all phases of emergency management.

These are some of the legal and policy issues, some old, some new, that we are confronting today. There are others that may pertain to your practice in the emergency management profession.

My contact information:

William C. Nicholson
Widener University School of Law
4601 Concord Pike Wilmington, DE 19803
(302) 477-2030
wcnicholson@widener.edu

I will try to address your questions, and for that purpose, I will now turn the session back over to our Moderator.

Amy Sebring: Thank you very much Bill.

[Audience Questions & Answers]

Question:
Rick Tobin: Many of the uses of the Patriot Act are, in my opinion, overstepping the bounds of what was intended in the actual act. How is this being monitored by the legal profession?

Bill Nicholson: Good question. The ACLU is keeping close track of these developments. So are universities through faculty.

Question:
Audra Kunf: I work for a very small city that contracts its legal issues to a corporate law firm in another city and another county. How do I even get them interested in emergency management issues?

Bill Nicholson: Such a challenge! As I mentioned, getting legal counsel on board through all phases of EM helps them understand the substance. Also - they could buy my book!!!

Question:
William Cumming: Since 9/11 emergency management has placed new strains on the federal system and federalism requirements! Do you have any comments or discussion on these developments? For example, the Department of Homeland Security (DHS) seems to be a top down organization as opposed to leveraging state and local assets and systems!

Bill Nicholson: You are so correct. At the national level, NIMS mandates "establishing ... standards for ...personnel qualification and certification." NIMS is not mandatory, but it does have financial incentives to create national compliance. As with NFPA 1600, the more widely it is accepted, the more likely NIMS will become THE standard.

Question:
Joe Adams: What are the three most common problems that you see affecting Emergency Management today in reference to legal issues, and what are your recommendations for same?

Bill Nicholson: 1. Getting competent legal advice. See previous discussion. 2. Getting emergency managers to understand that the lawyer can be your friend. Same response. 3. Specific folks have specific issues, from quarantine to evacuation. A lot depends on the hazards they deal with. Need to get lawyers to understand local needs.

Question:
Nancy Nicholson: In the aftermath of 9/11, what are the legal rules re: protection for professionals like doctors during interstate mutual aid responses?

Bill Nicholson: Great question! For professionals like doctors, paramedics, architects, etc. who are certified on a state level, there are no national standards for certification during a mutual aid response. That is a state-by-state matter, left so by the Emergency Management Assistance Compact (EMAC). MSHEPA authorizes public health authorities to set such standards during an event. DHS representatives say that interstate responders MUST be National Incident Management System (NIMS) certified. The definition of first responder in the Homeland Security Act of 2002 includes medical personnel, hospitals, and emergency management.

Question:
Lloyd Bokman: Bill, since NFPA 1600 is a generic, macro level, umbrella type document, how would you recommend going about complying with it at the local level? How would you translate it from the macro to the micro level, so to speak, from a legal viewpoint?

Bill Nicholson: Great issue Lloyd, on which you have good perspective. I think it has to start with the EMAP process. Further, for those who will comply with NIMS, there are the 514 NIMS standards to consider

Question:
Rick Tobin: With the onset of the national mutual aid process through EMAC (only two states haven't signed) there is the likelihood of more use of cross country resources, even outside of fire, law and Search & Rescue (like the medical folks previously mentioned). I've seen some real horror stories about injuries and even fatalities that were not covered by a State's worker's comp or life insurance policies during out-of-state missions. Has the legal profession expressed this concern to the federal offices of FEMA and Department of Homeland Security so the little guy or gal doesn't take a hit during their dedication to duty?

Bill Nicholson: Important ongoing issue, Rick. These issues are currently matters of state law, and their standards vary widely. Indiana, for example, has a great statute dealing with liability during response that includes workers comp issues. The most important thing is to KNOW WHO YOU HAVE Mutual Aid Agreements (MAAs) with! Make sure that the agreement specifies carrying a workers comp rider for emergency management volunteers and mutual aid responders.

Comment:
William Cumming: My three issues would be (1) Federalism-meaning who, what where, and how will the response and recovery be run! State and locals still don't know exactly who the feds are that will show up, nor their training or expertise, nor what financial assistance will be provided. (2) Standard setting-the vendors don't care if they sell ineffective equipment; and (3) Protection and training of responders-See May 2004 Rand/NIOSH report recommending safety officer at each major incident so that inferentially heroes don't die unnecessarily.

Bill Nicholson: Good points Bill. Locals need to understand that THEY are the responders, and that control stays with locals even after feds arrive.

Comment:

David Zocchetti: Rick, it is very likely you will see a bill emerge in the California legislature in the next few weeks addressing EMAC. Also, Nevada will be introducing legislation regarding EMAC. Apparently, they didn't follow state law when they signed EMAC a few years ago.

Comment:

William Cumming: There is a legal question as to whether signatory states that signed after enactment of the federal statute require some further statutory recognition by Congress under its Constitutional authority to ratify all Interstate Compacts.

Question:
Audra Kunf: I'm doing contract work for both private and public sectors; a lot more contracts are requiring emergency managers to post bonds--which can be pretty costly. (Example: $50,000 contract requiring $1 million bond.) Is there anything in the works (references, resources, a union??) to help out with getting a bond and how much liability is 'reasonable'? I mean, writing a plan--my plans are more in the nature of 'guidance'-- NOT guarantees against disaster. Well, I guess what I am asking is--how much is an emergency manager responsible for? What are our 'accountability' parameters?

Bill Nicholson: Wow, that's a tough one. These standards vary by state. Maybe you can check with International Association of Emergency Managers (IAEM) to see if they have any help. Remember that the responsibility for writing a current plan rests on the unit of government and they can't just put that over on a contractor.

Comment:

William Cumming: The so-called Miller Act (a federal statute) might be explored as facilitating bonding of emergency management contractors. This statute is administered by the Treasury Department.

Question:
Tim Newman: Since the development of Citizen Corps programs such as Medical Reserve Corps and CERT (which I am coordinator of both here locally), neither the DHHS, DHS nor FEMA has given much guidance in protecting the agency from liability. All the focus has been on protecting the volunteer. This leaves local governments wary of letting these volunteers do anything. How do we affect change in this attitude from the local government's insurers?

Bill Nicholson: You need to check out your state's law on emergency management volunteers. This is different from the Good Samaritan laws.

Comment:

William Cumming: The liability of the organization (usually based on deep pockets analysis) or the individual may exempt the individual. But defense costs can be enormous.

Question:
Audra Kunf: Regarding all the new standards and requirements coming at us from the Federal level: the feds are shrinking the dollars for funding (completely wiped out for CERT)--yet we are expected to comply. And so, if we don't have the money; and can't use these volunteers in our programs because of potential liabilities to us personally and to our organization(s), what recourse do we at the local level have regarding non-compliance?

Bill Nicholson: Unfunded mandates - what fun! This is exactly why the procedures for adopting federal rules require a lot in the way of cost estimates and economic impact analysis. NRP and NIMS were not, however, adopted as rules (unlike the EPA HAZMAT Spill Plan) so they did not get this analysis.

Question:
Avagene Moore: Bill, are you seeing more and more local emergency management agencies including an attorney in their inner circle for policy advice, etc? Is there any hard evidence that this is occurring?

Bill Nicholson: Well, let's put it this way, there is more understanding of the need for legal counsel, but it founders on the rocks of insufficient funding.

Question:

Rick Tobin: I don't want to beat an issue to death here but an ugly little truth must be told. The feds gave specific immunity to liability to some of the largest Fortune 500 consulting firms in the country so that they don't have to have special liability for doing terrorism planning. Meanwhile, the rest of the contracting community had to scramble for errors and omissions (E&O) coverage that sometimes costs as much as a contract for coverage. Small companies are also usually denied if the words, "terrorism, hazards, disasters, or emergencies" are found anywhere in their name, brochures, Websites or previous contracts. I have to say, many of my colleagues have had to weasel word around this, which leaves the client on the hook if there is a claim because the insurer can claim the application was fraudulent. Many local and state agencies who are contracting folks have no idea what they told their insurers they were doing. I took the high road on this issue, and it cost me a pot of gold to get coverage and there is no guarantee of renewal.

Bill Nicholson: A huge issue. Please write your members of Congress.

Question:

Nancy Nicholson: Also in the aftermath of 9/11, do you see more EM entities entering into MAAs with neighboring folks? If not, are there any particular legal reasons for NOT doing so?

Bill Nicholson: Good question Nancy. More involvement in MAAs is the trend. NIMS and NFPA 1600 support it, as do statutes in many states. Intrastate agreements are growing as well - NEMA has a form intrastate agreement on their site.

Question:

Isabel McCurdy: Bill, I didn't understand your comment during your presentation - 'codes as floors for performance than ceilings". Would you elaborate, please?

Bill Nicholson: Building codes, for example. Buildings are designed to perform up to the level of the code typically, rather than being designed for additional resistance that might allow continuity of operations after an event. The FEMA Mitigation Web page has great examples.

Question:

Amy Sebring: I have a caution I would like to share from my own experience. I recently found state guidance on public health related legal issues. The problem was, the guidance was already outdated although it appeared from the publication date to be fairly recent, since the laws had been subsequently changed. Would you agree Bill that when in doubt, research, research?

Bill Nicholson: Absolutely - and remember that you are paying lawyers to be up on current law. You might remind them that failure to do so may be malpractice - exposing THEM to liability.

Question:

Audra Kunf: Regarding health emergency stuff, I am finding that the Urban Area Security Initiative (UASI) jurisdictions are getting a LOT of money thrown at them for planning so they are scrambling to hire and contract out to use this money; however, what is in place for quality control? Seems to me that they are getting dreck for their money, our money!

Bill Nicholson: It's always a problem with entities whose funds wax and wane yearly. There is pressure to get it spent, and some thinking that bad is better than none. If the product is bad, the purveyor may be liable - as may the purchaser if it's bought for public protection.

Question:

Amy Sebring: I would like to touch on a couple of issues we have not yet discussed as we get near the end. Bill, is there anything going on nationally on the issue of the States Sovereign Immunity that might have impact for emergency responders?

Bill Nicholson: Sovereign immunity is a complex issue. I suggest reading my chapter for FEMA on EM Legal issues at the Higher Ed website. Remember that public employees themselves are not the target - it's the unit of government that has the money.

Question:

Amy Sebring: Secondly, is there anything going on regarding the issue of military support to civilians?

Bill Nicholson: Yes, actually the Defense Advanced Research Project(s) Agency (DARPA) recently issued a guide for military support. (The author wrote a chapter on the subject in my upcoming book Homeland Security Law and Policy.)

Question:

Rick Tobin: Bill, and colleagues: I think it would be ever so valuable if a legal guide (brief and to the point) was delivered to every single person approving and handling funds from DHS and CDC. There seem to be some grievous errors being committed with new people who do not understand what the color of money means, or deobligation, or OMB audit authorities. Your opinion?

Bill Nicholson: My first book Emergency Response and Emergency Management Law has a chapter on legal issues in grant administration.

[Closing]

Amy Sebring: Thank you very much Bill for taking the time and effort to share this information with us. We hope you enjoyed the experience.

Thanks to everyone for participating today. Again, a transcript will be available later today. For our first-timers, we hope you enjoyed the session and will come again. If you are not currently on our mailing list, and would like to get program announcements and notices of transcript availability, please see the Subscribe link on our home page.

We stand adjourned but before you go, please help me show our appreciation to Bill for a fine job.