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. Amy Sebring: First, for the benefit of any first-timers, we will go over the order of business. We will begin with a presentation and then we will proceed to your questions and comments. Amy Sebring: We will provide further instructions just before we begin the Q&A section, but you may wish to jot down your questions or comments as we go along. Amy Sebring: Please do not send private messages to our speaker or the moderator, as we will be busy with the presentation. If you need assistance, you may send a private message to Avagene. Amy Sebring: An edited transcript of today's session will be available by later this afternoon -- just check back on our home page or the background page (refresh the pages as needed). Amy Sebring: Now 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 Widener University School of Law, where he conceived and instructs a course entitled "Terrorism and Emergency Law." Amy Sebring: 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, ... Amy Sebring: 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. Amy Sebring: 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. Bill Nicholson: Thank you Amy. 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. Bill Nicholson: 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. Bill Nicholson: 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. Bill Nicholson: Perhaps most important to emergency managers from both the public and private sectors are the changing standards under which they must operate. Bill Nicholson: 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. Bill Nicholson: 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, Bill Nicholson: 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 ... Bill Nicholson: 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. Bill Nicholson: 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. Bill Nicholson: 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. Bill Nicholson: 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.) Bill Nicholson: 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." Bill Nicholson: 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. Bill Nicholson: 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. Bill Nicholson: 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. Bill Nicholson: 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. Bill Nicholson: 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 being closed for a month. Bill Nicholson: 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. Bill Nicholson: 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. Bill Nicholson: 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 ... Bill Nicholson: 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. Bill Nicholson: 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. Bill Nicholson: 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... Bill Nicholson: "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 EPCRA or other standards. As might be expected, environmental or other special interest groups have a different perspective, which they may litigate. Bill Nicholson: 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. Bill Nicholson: 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. Bill Nicholson: The Model Act grants broad powers to states. State Governors get wide powers to declare and enforce Public Health Emergencies. MSHEPA lets the state to seize medical supplies and drugs during a declared Public Health Emergency. Authorities could also take, use, and destroy property. Bill Nicholson: 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. Bill Nicholson: 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. Bill Nicholson: 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. Bill Nicholson: 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. Bill Nicholson: My contact info: William C. Nicholson Widener University School of Law 4601 Concord Pike Wilmington, DE 19803 (302) 477-2030 wcnicholson@widener.edu Bill Nicholson: 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 Bill. Now, to proceed to your questions. Our protocol for audience questions is to enter a question mark ? to indicate you wish to ask a question or make a comment. ricktobin: ? Amy Sebring: Then go ahead and compose your question or comment to have it ready, but do NOT hit your Enter key or click on the Send button until you are recognized by name. Please WAIT your turn. We will take questions in the order the question marks are sent to the screen. audra kunf-calif: ? Amy Sebring: ONE QUESTION AT A TIME please and please keep your questions or comments reasonably concise. William Cumming: ? Amy Sebring: PLEASE KEEP IN MIND, that Bill cannot be expected to know all the legal variations in each of the 50 states, nor do we want to get too specific in terms of detailed hypothetical situations ... Joe Adams: ? Amy Sebring: so please try to focus your questions on more general themes as much as possible. We are ready to begin now. Amy Sebring: Rick, when you are ready please. ricktobin: 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... Bill Nicholson: The ACLU is keeping close track of these developments. Amy Sebring: Audra next please. audra kunf-calif: i work for a city (very small) 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? (tried with the required DMA 2000 Haz Mit plan; i got English edits back; no legal feedback.) Bill Nicholson: So are universities through faculty. Bill Nicholson: Such a challenge! Bill Nicholson: As I mentioned, getting legal counsel on board through all phases of EM helps the understand the substance. Also - they could buy my book!!! Amy Sebring: William next please. William Cumming: Since 9/11 emergency management has placed new strains on the federal system and federalism requirements! Do have any comments or discussion on these developments? For example DHS seems to be a top down organization as opposed to leveraging state and local assets and systems! Nancy Nicholson: "?" 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... Bill Nicholson: As with NFPA 1600, the more widely it is accepted, the more likely NIMS will become THE standard. Amy Sebring: Joe next please. Joe Adams: What are the three most common problems that you see affecting Emergency Management today in ref to legal issues, and what are your recommendations for same? Bill Nicholson: 1. Getting competent legal advice. See previous discussion. Bill Nicholson: 2. Getting emergency managers to understand that the lawyer can be your friend. Same response. Lloyd Bokman: ? Bill Nicholson: 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. ricktobin: ? Amy Sebring: Nancy next please. audra kunf-calif: ? Nancy Nicholson: In the aftermath of 9/11, what are the legal rules re: protection for professionals like doctors during interstate mutual aid responses? Tim Newman: ? 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. .. Bill Nicholson: That is a state by state matter, left so by EMAC. MSHEPA authorizes public health authorities to set such standards during an event... Bill Nicholson: DHS representatives say that interstate responders MUST be NIMS certified. The definition of first responder in the Homeland Security Act of 2002 includes medical personnel, hospitals, and emergency management. Amy Sebring: Lloyd next please. 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... Bill Nicholson: I think it has to start with the EMAP process... Bill Nicholson: Further, for those who will comply with NIMS, there are the 514 NIMS standards to consider. Amy Sebring: Rick next please. ricktobin: 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 SAR (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... Bill Nicholson: 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... William Cumming: Comment! 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: The most important thing is to KNOW WHO YOU HAVE MAAs with! Make sure that the agreement specifies carrying a workers comp rider for emergency management volunteers and mutual aid responders. Amy Sebring: Taking a moment to absorb William's comment. Amy Sebring: Bill, do you want to comment on William's comment? Bill Nicholson: Good points Bill. Locals need to understand that THEY are the responders, and that control stays with locals. Amy Sebring: Audra next please. audra kunf-calif: 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. (exp: $50K contract requiring $1 mil 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! Bill Nicholson: Even after feds arrive. Bill Nicholson: Wow, that's a tough one. These standards vary by state. Maybe you can check with EMAI to see if they have any help. audra kunf-calif: ? Amy Sebring: EMAI=? 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 Dept. audra kunf-calif: well, I guess what I am asking is--how much is an emergency manager responsible for? What are our 'accountability' parameters? David Zocchetti: Hi Rick - It is very likely you will see a bill emerge in the Calif. 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. Amy Sebring: Can you address Audra's clarification Bill? Bill Nicholson: sorry don't know what happened Bill Nicholson: International Association of Emergency Managers (IAEM) not EMAI Amy Sebring: Lost you for a second I guess ... Amy Sebring: Audra had clarified that she is asking how much potential liability would an EM have ... Bill Nicholson: That's hard o say... Amy Sebring: for planning. I suppose it may be different for public vs. private employees? Bill Nicholson: Remember that the responsibility for writing a current plan rests on the unit of gov't... 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. Bill Nicholson: They can't just put that over on a contractor. Amy Sebring: Thanks. Tim is next please. 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? 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. audra kunf-calif: ? Bill Nicholson: You need to check out your state's law on emergency management volunteers. This is different from the good Samaritan laws. Avagene Moore: ? Amy Sebring: Audra next please. Bill Nicholson: Bill is correct. ricktobin: ? Nancy Nicholson: "?" Amy Sebring: Audra, you can break your question up if needed. audra kunf-calif: 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 requires a lot in the way of cost estimates and economic impact analysis... Isabel McCurdy: ? Bill Nicholson: NRP and NIMS were not, however, adopted as rules (unlike the EPA HAZMAT Spill Plan) so they did not get this analysis. Amy Sebring: Ava next please. 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 their any hard evidence that this is occurring? Bill Nicholson: Well, let's put it this way.... Amy Sebring: ? Bill Nicholson: There is more understanding of the need for legal counsel, but it founders on the rocks of insufficient funding. Amy Sebring: Rick next please. ricktobin: 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 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 renew Amy Sebring: er that's a little long Rick! Bill Nicholson: But a huge issue... Bill Nicholson: Please write your members of Congress. Amy Sebring: Nancy next please. 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.. Bill Nicholson: More involvement in MAAs is the trend. NIMS and NFPA 1600 support it, as do statutes in many states... Bill Nicholson: Intrastate agreements are growing as well - IAEM has a form intrastate agreement on their site. Amy Sebring: Isabel next please. Isabel McCurdy: Bill- didn't understand your comment- '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. 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 changed. Would you agree Bill that when in doubt, research, research? audra kunf-calif: ? 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. Amy Sebring: Audra next please. Amy Sebring: ? audra kunf-calif: regarding Health emergency stuff: I am finding that the UASI jurisdictions are getting a LOT of money thrown at them for planning audra kunf-calif: so they are scrambling to hire and contract out to use this $$ ricktobin: ? audra kunf-calif: however, what is in place for quality control? seems to me that they are getting dreck for their money audra kunf-calif: our money?! Amy Sebring: Any comment Bill? 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. Amy Sebring: I would like to touch on a couple of issues we have not yet discussed as we get near the end ... Amy Sebring: Bill, is there anything going on nationally on the issue of the States Sovereign Immunity ... Bill Nicholson: If the product is bad, the purveyor may be liable - as may the purchaser if it's bought for public protection. Amy Sebring: 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. Amy Sebring: Ok, and secondly, is there anything going on regarding the issue of military support to civilians? Bill Nicholson: remember that public employees themselves are not the target - it's the unit of gov't. that has the $ William Cumming: Comment on military/civil issues? Bill Nicholson: Yes, actually 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.) Amy Sebring: William I will come back to you on that. Rick is waiting. ricktobin: 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. Amy Sebring: Let's wrap up with your comment William regarding military support? William Cumming: DOD is focusing almost completely on force protection and WMD response issues. This also includes research (mostly classified)! Amy Sebring: Thanks. Let's wrap it up for today. Thank you very much Bill for taking the time and effort to share this information with us. We hope you enjoyed the experience. Bill Nicholson: In a large event, however, they have more "stuff" than anyone else. Amy Sebring: 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. Amy Sebring: We stand adjourned but before you go, please help me show our appreciation to Bill for a fine job.