EM Forum Presentation January 25, 2012
Legal Issues and Disasters
Things You Should Know
Angelyn Flowers, J.D., PhD
Project Director, National Legal Preparedness Project
Professor of Criminal Justice and Graduate Program Director
Homeland Security Program, University of the District of Columbia
This transcript contains references to slides which can be downloaded from http://www.emforum.org/vforum/UDC/LegalIssues.pdf
A video recording of the live session is available at http://www.emforum.org/pub/eiip/lm120125.wmv
An audio podcast is available at http://www.emforum.org/pub/eiip/lm120125.mp3
[Welcome / Introduction]
Amy Sebring: Good morning/afternoon everyone and welcome back or for the first time to EMForum.org. We are very glad you could join us. I am Amy Sebring and will serve as your Moderator today.
Our topic today is a new course developed by the National Legal Preparedness Project at the University of the District of Columbia in Washington DC. Please note that we have a number of related handouts you can download by clicking on the icon of the three overlapping note pages at the top right. These include a course brochure, a list of locations where the course will be offered in the near future, and an excellent list of legal references with links to the sources. You can also access these from todays Background Page.
We are making a Live Meeting recording and an audio only MP3 version, which should be available later this today along with a copy of todays slides. The text transcript will be posted early next week. If you are not on our mailing list, you can subscribe from our home page, and then you will get a notice when these materials are ready as well as future program notices.
Now it is my pleasure to introduce todays guest: Dr. Angelyn Flowers is the Project Director for the National Legal Preparedness Project at the University of the District of Columbia. She is also Professor of Criminal Justice and Director of the universitys Homeland Security Graduate Program. Please see todays Background Page for additional biographical information and links to related Web resources.
Welcome Angelyn, and thank you very much for joining us today. I now turn the floor over to you to start us off please.
Angelyn Flowers: Thank you, Amy. I am glad to be here. I would like to take a couple of seconds to tell everyone a little bit about myself. I have a law degree from Georgetown University Law Center and a Ph.D. in Disciplinary Studies from Commonwealth Open University.
I am admitted to the D.C. bar, the Federal Court of Appeals D.C. of the Supreme Court. In terms of how I fell into thisI have just always had a passion for organizing people and logistics and it just seemed to fit really well with emergency management and homeland security efforts.
This current projectthe National Legal Preparedness Training Program was developed under auspices of the Universitys Institute for Safety and Justice as part of a cooperative agreement with the Federal Emergency Management Agency. This was intended to increase the legal preparedness of state, local and tribal governments.
This process has taken a couple of years and we began with a day and a half focus group that involved over 100 people all over the country. It included front line emergency responders, emergency managers, lawyers and judges. We gathered them all together and worked through a scenario that was designed to identify issues that could potentially arise in the event of a disaster.
Those issues were refined over a series of months through pilot sessions that were tested across the country. The end result was this courseLegal Issues in DisastersThings You Should Know.
What Im going to do for the next few minutes is give an overview of the course and Im going to talk about some of the issues that we cover in the training.
This is a course on legal preparedness so the first thing I want to do is talk about legal preparedness, just the background. Legal preparedness has a policy and an operational component. It askswhat is going to be done? Is there some authorizing statute or executive order or legislation that says, "This is what should be done."
The operational component of emergency preparedness is how it is going to be done. Are there rules or regulations or something else that says who does what and how they do it?
Now, in addition to all of that, we have two other questions: Is the existing legal authority consistent with protecting individual rights and liberties and protecting due process concerns? A particular concern for managers iswhat are the areas for potential liability and how can they be mitigated?
This course focuses on selected legal issues. Of course, we couldnt look at everything. As we all know, tremendous strides have been made over the past few years to increase the countrys readiness to confront an array of threats. The difficulty is that Homeland Security and Emergency Management are constantly changing and presenting new legal issues.
Sometimes we have federal authority that is controlling and sometimes the law can vary from state to state. The idea behind this course is to assist the training participants in first identifying the questions so that the development of their responses can be incorporated into their planning process.
The goal of the course is to enhance the ability of governments, managers, planners, first responders and non-profit organizations to identify potentially legal issues. To accomplish this we have one background module on planning that looks at issues that transcend the whole process. Then, we have four modules where we work through a scenario that unfolds, presenting new legal issues.
The way we structured the course is to make it extremely interactive. We have, as I said, the scenario that goes throughout and then periodically we have case studies that present particular issues for the audience to discuss. All of this is interspersed with the instructor presentation. What I want to do is not only identify some of the issues that are discussed in the training course but also give some examples of the kinds of case studies and discussion questions that we use.
Just for a little background, we usually are dealing with one of four types of events. We have rapid onset events which could be something like a tornado. We have isolating events that could be a pandemic or a hazardous materials spill. We have power failure events which could be temporary or they could be caused by an ice storm or some infrastructure failure. Then we have large scale events similar to 9/11 or something like a major hurricane.
The first module, as I noted earlier, kind of flows through everythingthe issues that arise here. It is basically a planning module and we go through activities that normally take place prior to the event occurring. Planning is a continual process and plans should be updated after a major event.
A particular concern of legal issues is that it is difficult to address them when they first arise as the event is occurring. What we really want as part of this process is to incorporate identification of legal issues into the planning process in advance.
We address a series of issues in module one. We cover NIMS because that is required in all FEMA training. We look at the "Whole Community" concept which is a recent emergence and has been used in reference to including those who are typically overlooked in emergency plans such as people with limited English proficiency, people with disabilities as well as people with functional access needs.
We look at emergence of issues that arise with emergency planning and working with tribal governments, as well as issues with the Americans with Disabilities Act, and Section 504, the Rehabilitation Act. We look at the Integration mandate as well as the Integrated Public Alert Warning Systems, as well as the public alert warnings for children and adults with functional access needs and the particular issues that go along with that.
One example of the types of issues we discuss in this module is that while many local jurisdictions have memorandums of agreement (MOA) with neighboring jurisdictions, few of them have MOAs with tribal governments that may be adjacent or overlap their geographic area. That is an important concern.
The Integration Mandate basically requires that programs and services be given at integrated settings in terms of the abilities of people and it has to be inclusive. There are legal issues and liabilities attached that we spend some time talking about.
Module two is where we begin our scenario. This module is an evacuation module. It looks at some legal issues and potential liability areas that can arise when governments attempt to evacuate part or all of their communities.
Some of the issues we cover are the authority to order an evacuationdoes the jurisdiction have someone designated who has that authority? You dont want to find out when the event happens that no one has. In one jurisdiction, they changed the person who had the authority but the law hadnt been finalized yet.
Are we looking at a voluntary or a mandatory evacuation and what are the issues, liabilities, and duty of care issues that arise with that? What are the liability issues related to transportation both in terms of requirements for transportation and duties that arise once you undertake to transport people? We look at issues with evacuation and pets as well as issues associated with the refusal to evacuate.
Now we come to one of our audience participation questions. A study by FEMAs Community Preparedness Division found that of the people who indicated they would need help in evacuating, what percentage said they needed help with transportation?
I see that the majority of the people thought it was 40%, but actually it is 50%. That has implications as you can imagine for the planning process. For instance, we believe it means that the plans have to make allowances for safe areas and other evacuation help for people who need it. All transportation has to be accessible for wheelchairs.
In addition all the information about the evacuation and transportation has to be accessible to everyone. As we can imagine, addressing these issues can create another set of liability questions.
One of the other things we can look at is reasons why people refuse to evacuate. If you notice, the Harvard School of Public Health found that one third of people refused to evacuate because they didnt want to leave their pets. That problem has now been addressed through the Pets Evacuation and Transportation Standards Act (PETS Act) which requires that emergency planning has to take into account transportation and shelter for household pets. This is another legal requirement so to speak.
I wanted to share an example of one of the case studies we use. In this case study, a bus company was under contract to evacuate residents and they supplied buses that were not wheelchair accessible. Several people with disabilities were killed or seriously injured waiting to evacuate.
Then what we would do is discuss with the participants so they could identify with us some issues involved. For instance, we know now that all transportation has to be wheelchair accessible. We talked about steps the jurisdiction could take to minimize their liability and simultaneously enhance the safety of their residents.
Module three talks about shelters. Some people have evacuated and we have other people in the scenario in emergency shelters. In this module we look at some of the legal issues and potential liability areas that can arise for government units or non-profit organizations that are attempting to provide emergency shelter.
In module three, the legal issues we look at include shelter accessibility, the requirements for functional needs support services, the requirements for household animals, service animals, discrimination in emergency shelters as well as infectious disease and social distancing. For instance, general population shelters must be able to accommodate people with disabilities and people with access and functional needs.
Service animals must be co-mingled in the shelters. Household pets are to be co-located. We talk about the differences. We also identify about some issues that might not have arisen in some jurisdictions and it is important to think about before it happens.
For instance, how many jurisdictions have guidelines regarding what general population shelter providers should do if a registered sex offender shows up at this shelter? That could be a problem.
This leads us to another question. Remember, we are still in shelters and that is the context for this question. During an infectious outbreak, what distance from others does the Centers for Disease Control and Prevention recommend?
a. One foot
b. Two feet
c. Three feet
d. Four feet
e. Five feet
It looks like most people said five feet, but the answer is actually three feet. The question in terms of planning iswhat does this requirement mean when people are still in emergency shelters? How do shelters maintain this kind of distance in conditions that are sometimes crowded? What are the liability issues if someone contracts an infectious diseaselets say there is a pandemic influenza going aroundand they contract that while in the shelter?
I also want to briefly touch on service animals in shelters. Service animals are co-mingled in the shelter with their owners. What issues does that present to someone else in the shelter that has animal allergies? Those are types of things that seem like small issues, but they are potential liability issues that shelter owners and managers need to have already thought of so they have a plan to address.
In the scenario we are using as the hurricane unfolded and went away, an outbreak of pneumonic plague broke out which was the reason for the infectious disease. Now we have lots of very ill people. We have an influx in the scenario of out-of-state volunteers.
As all emergency managers know, volunteers are wonderful but managing large numbers of volunteers can be problematic. In addition to volunteers in response to mutual aid agreements like EMAC or organizations that have contractual agreements to provide services, oftentimes spontaneous volunteers who are unaffiliated with a government entity or an organization show up to help. Module four talks about the issues and liabilities presented when that happens.
FEMAs Citizen Corps Volunteer Liability Guide is an excellent resource and what we cover in this module are the different types of volunteers which then affects the kind of liability and we also talk about examples of liability protection.
[Slide 21, 22]
Liability can be civil liability. It can be resulting from a person operating who is not properly licensed or does not have the proper credentials. It can be injury or death to a volunteer, for instance. Liability can sometimes result against an individual or the organization that was using the individual.
The issues that we talked about in module four are the types of volunteers, different types of liability, the examples of liability protection and the different sources of those protections.
In the final module we talk aboutnow were down to the end of the scenario and once past the immediate disaster and issues dealing with that, we now have the issue of how do we pay for it. Module five is federal financial assistance and reimbursement. Basically we are talking about the Stafford Act. Of the three categories, we focus on public assistance which includes debris removal, mass care, and critical infrastructure, legal issues with the repair, restoration or replacement of damaged facilities as well as others. The area we focus on for the purpose of the scenario is debris management.
The issues we cover in this module are the disaster declaration process, the types of financial assistance, eligibility under the Stafford Act, eligible and ineligible debris removal, debris removal on private property, permissible and prohibited contracts, and common reasons for FEMA claim rejection. Many of those reasons can be avoided if they are addressed prior to the onset of a disaster.
That brings me to the conclusion of my overview. I have the names of the project staff listed. The course is currently available. It has been certified by FEMA and it is available in the states where the SAA has given approval. The FEMA course number is MGT-366.
The email contact is firstname.lastname@example.org. She is handling our schedule. Thank you for the opportunity to talk with you about the program and I am happy to answer any questions you have.
Amy Sebring: Thank you very much Angelyn. Before I turn it over to our audience for Q&A could you clarify just a little bit. I believe your funding is making available this coursethat you are reaching out to the States Administrative Agencies to schedule this course at no cost to them. Is that correct?
Angelyn Flowers: Yes. FEMA has provided us funding through September 30, 2012. We will come and deliver the course free of charge. Also if you are a tribal nation we dont require SAA approval.
Amy Sebring: Again, in the handouts there is a list of the courses that are currently scheduled to be delivered however that will be expanded as they get responses from the various states. Angelyn, are they going to post the course schedule on your website ultimately?
Angelyn Flowers: Yes we will.
Amy Sebring: The link to the website is on our background page. That will be a good place to check for updates.
Angelyn Flowers: Or just email any of us and we will be happy to give the information.
Amy Sebring: Now, to proceed to our Q&A and audience comments.
[Audience Questions & Answers]
Bill Nicholson: I would like the attendees to be aware of a new resource. My book "Emergency Response and Emergency Management Law: Cases and Materials" first published in 2003 is currently in press at Charles C. Thomas Publisher Ltd. (ccthomas.com) It will be published in the next few months. Over 50% of the material is new, largely focused on the emergency management area. For example, the book treats in great depth legal requirements for services to limited English proficient (LEP) populations and their inclusion in all aspects of EM and offers practical advice for this task. The book is comprehensive in scope, addressing all phases of EM.
Angelyn Flowers: Bill Nicholson was one of the participants in that initial focus group we held.
Debra R. Buff: What is the length of the course?
Angelyn Flowers: It is a one-day course.
Ari Schein: Where do you see the current stream of ADA based shelter lawsuits going in terms of guidance/best practices?
Angelyn Flowers: The direction and the trend seem to be toward full inclusion. Best practices are that jurisdictions need to move in the direction that general population shelters accommodate people with disabilities. That is the direction.
Guy Corriveau: In one of your first modules, you speak to the important issue of statutes and other legislative guidance. I wonder how much time you spend on germane acts and regulations, i.e., the Cleary Act.
Angelyn Flowers: In the training in the different modules we actually do spend substantial time on the federal acts that apply to everyone and then some issues are really governed by state law. We talk about with those the different things that jurisdictions would want to consider. Within the training itself, we spend time on the relevant federal acts.
Isabel McCurdy: Can international individuals take the course?
Angelyn Flowers: It is an in-person course and we are funded to offer it to all the U.S. states and territories. If there was training near you and you could cross the border that would be fine. We arent funded to deliver in Canada.
Dr. Jacqueline McBride: What are some of the liability issues and concerns in relationship to plan development (or lack of), integration and sheltering to address human trafficking and violence against women and girls (children) in the aftermath of a disaster, catastrophic event, and terrorist incident; and are they addressed in this course?
Angelyn Flowers: They are touched on. To be perfectly honest, they would require a full course in and of themselves, particularly violence and trafficking. We spend substantial amount of time talking about integration issues and what is required. Part of that is really looking at children and their unique needs as well as others that have needs that have to be addressed.
Again we spend a lot of time talking about integration and the liabilities issues for jurisdictions for not complying with a lot of the new mandates. Violence and trafficking would be a course by itself.
Steven Kay: Local municipalities often present legal obstacles for volunteerism, early response credentialing, etc. What is FEMA doing to help work with States and municipality legal departments to implement Good Samaritan protections and standardized approaches to disasters?
Angelyn Flowers: That is a FEMA policy question that I cant answer, but I can say that states have the ability to do some of this for themselves. There are several model and uniform acts that cover cross licensing of people who register in advance that if states adopt then they have that in place.
NEMA is a resource for some of this material. If they are government employees they are covered under EMAC, but there is a larger issue with people say who are not government employees who come and want to help. There is a federal volunteer protection act that has some coverage.
There is also the Uniform Emergency Health Practitioners Act which was promulgated by the Uniform Law Commission which states adopt. It has a system where health practitioners pre-register and then they can perform in states that have also signed the agreement. As of last November, twelve states had signed that agreement or had adopted various aspects of it.
That is separate from EMAC which NEMA has because it covers non-government employees.
Guy Corriveau: What types of incidents are the bases for the most litigated cases? Are there some general percentages that you can give?
Angelyn Flowers: It really varies because of the different types of things that happen. For instance, of the 50% of people most likely to be killed, a third of those are volunteer firefighters. You can have liability there. A lot of the newer liability is coming over the inclusion mandates and failures of jurisdictions to meet those.
Richard Yazbek: Are you going to rely solely upon your own cadre of instructors who will travel around the country, or will you be seeking assistance in teaching the course for various regions?
Angelyn Flowers: What we are trying to do is develop a cadre of instructors from different regions so after this is over there is a regional resource. We do require that they be lawyers. If you are interested, email Deborah Robinson email@example.com she will get back to you to follow up on your interest, if that answers the question.
Avagene Moore: Are there performance measures / evaluations that will determine the continued training and potential updates to the course after this fiscal year?
Angelyn Flowers: As I said earlier, we are funded through September 30. Each training session, there are a series of FEMA mandated evaluations that the participants do to assess the training. Performance measures are the number of deliveries and our ability to actually reach out to all the different jurisdictions. In terms of future funding, that is probably up in the air.
We would be happy to be funded to continue it because we are getting a lot of interest and there is a lot of need. It is questionable that we can actually get to everyone before September 30.
Amy Sebring: When you developed the course, I presume you piloted it with some folks in the practitioner community. What kinds of feedback did you get from them?
Angelyn Flowers: Yes, we did pilot it with people in the practitioner community and actually each time we piloted it, it resulted in significant revamping of the course in terms of the issues that we addressed. The overriding feedback we got was that they felt there was a need for this type of training.
The other feedback we got is that there were so many issues people wanted to have addressed that it was beginning to make the training too long. We could have spent a week and still not addressed all the issues. We really worked with the practitioners in the pilot sessions in terms of narrowing down the issues that would be addressed.
Jean: What sort of outreach are you doing to inform jurisdictions that this course is available, esp. for Tribal?
Angelyn Flowers: What we have done is we are in the process of reaching out to the SAA in each jurisdiction. If they approve the course they are letting all the local jurisdictions know. In addition we are reaching out to the tribal governments because as I indicated, they dont require SAA approval.
We are also letting volunteer organizations know about it and just generally trying to spread the word. In those areas where the SAA has not approved it and people want the training, they can let their SAA know.
Amy Sebring: Wouldnt you say that this isnt just for emergency managers? Isnt it a multi-disciplinary type of focus since you cover so many public health issues?
Angelyn Flowers: It is multi-disciplinary. It could include not just emergency managers but the front line responders, non-profit organizations who provide shelters or healthcare. In response to an earlier questionthat was the biggest issuewas having enough for each of the different groups without having too much that only would apply to one group and others would be uninterested. We are trying to reach a broad group of people.
Carlos Garcia: The State of Indiana has developed a course that we have provided to our emergency management directors and staff over the last 10 years. The course is very Indiana-specific. Will your course also incorporate a state-flavor or provide relevant information to the state where it may be provided?
Amy Sebring: I have a similar question. You said you helped identify questions that need to be asked, but do you provide assistance in telling folks where to go look for answers?
Angelyn Flowers: One of the things we are not permitted to do is anything that sounds like we are giving legal advice. We help them identify questionswe can generally say you might want to talk to a person or look at a particular statute, but that would be the limitation on what we could do in terms of specific state-oriented information.
The other thing we are finding about this is on the issues that are really dependent on state law, some states have addressed them and some states have not. In some instances it is like local cities and counties that havent addressed them so it is helpful to them in a large group of people to hear how other people have addressed that issue so they can take it back to their decision and policy makers and say we need to look at this.
Amy Sebring: Do you provide any recommendations as to how to actually incorporate these issues into planning documents?
Angelyn Flowers: In terms of writing the actual planning document itself, no, but what we do is we are fairly specific in terms of what the requirements are. Hopefully people will be able to take that and incorporate it into their planning documents.
Amy Sebring: I would be interested in getting any feedback from our audience members who have done this. I know in some states there may be an actual legal annex to a local plan or even perhaps a state plan. So if you have any experience in this area, please let us know what you did.
Bill Nicholson: FYI I originated the Indiana course when I was the General Counsel for Indiana SEMA.
Avagene Moore: Who has the loudest voice re: legal issues as result of disaster experience? Local, State or Federal level?
Angelyn Flowers: Ultimately as we know all disasters are local. They are generally suing a local jurisdiction but oftentimes they are suing them for violation of a federal law.
Amy Sebring: Time to wrap for today. On behalf of Avagene and myself and all our participants today, thank you very much Angelyn for taking time to share this information with us. We wish you every success as you move forward to the next stage of the project with the field delivery.
Angelyn Flowers: Thank you so much. And as I said earlier if anyone is interested in having a delivery or inquiring about being a trainer please dont hesitate to contact us.
Amy Sebring: We would also like to thank Executive Director, Dr. Deborah Robinson for her assistance with preparing for todays program.
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In the meantime, thanks to everyone for participating today. Have a great afternoon. We are adjourned.