Legal Tools for Managing a Public Health Crisis

By James E. Dering

Health Law Journal

Words cannot fully describe the impacts of the 2019 coronavirus (COVID-19) pandemic on individuals or our society, and the pandemic is not over.[1] Governor Andrew M. Cuomo fittingly described it as “a new war that no one has seen before.”[2]

The nature of the COVID-19 crisis demands a statewide strategy and response set by the governor. However, with regard to public health crises in general, New York state law provides legal tools to multiple levels of government for managing various magnitudes and kinds of threats, including those involving communicable disease and public health nuisances.

Here is a summary of some of the tools that are available.[3] Which ones or combinations are best for a particular crisis will depend on the specific circumstances. However, the options allow responses to public health threats to be tailored to each event.

I. The Governor

A. Executive Orders

Extraordinary times call for extraordinary measures,[4] and Governor Cuomo has issued executive orders[5] that have played a critical role in managing the COVID-19 crisis. Among other things, the executive orders have maximized resources available to fight the virus and reduced the spread of the virus by social distancing mandates.

While the requirements of Governor Cuomo’s COVID-19 executive orders are customized to address the unique circumstances of the pandemic, the use of executive orders in managing a public health crisis is not new. Governors’ executive orders are an important tool in addressing public health emergencies when local governments are not able to adequately respond.[6]

Under New York’s Executive Law, the governor shall declare a disaster emergency by executive order when he or she finds that a disaster has occurred or may be imminent.[7] Disaster is defined as “occurrence or imminent, impending or urgent threat of wide spread or severe damage, injury, or loss of life or property resulting from any natural or man-made causes.”[8] The definition includes an expansive list of causes, including but not limited to epidemic, disease outbreak, flood, hurricane, etc.[9]

Orders declaring disaster emergencies shall remain in effect for a period not to exceed six months or until rescinded by the governor, whichever occurs first, and can be extended for additional time periods.[10]

During a declared disaster emergency, the governor may “temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency” by executive order.[11] This can be done if compliance with such provisions would hinder action necessary to cope with a disaster or if it is otherwise necessary to aid in coping with a disaster.[12] Such authority is subject to the state and federal constitutions and federal statutes and regulations.[13]

In addition to suspending laws, regulations, etc., the governor can issue directives necessary to cope with a disaster by executive order.[14] Suspensions and directives must be in the interest of the health and welfare of the public and be reasonably necessary to aid a disaster effort.[15] They can be effective for up to 30 days and be extended for additional time periods.[16]

B. Examination and Abatement Orders

 The governor can require the state commissioner of health to examine nuisances or questions affecting the security of life and health and to report back within a prescribed time.[17]

The governor may then declare a matter a public nuisance and order that it be abated as he or she may direct.[18] The expense of the abatement shall be paid by the municipality where the nuisance existed, and the municipality can recover the cost from the people who maintained, or assisted with maintaining, the nuisance.[19] Payment of the cost may also be enforced by a sale of the lands where the nuisance existed.[20]

The governor used this authority in 2012 to compel the clean-up of debris caused by Hurricane Sandy in the counties of Bronx, Kings, Nassau, New York, Queens, Richmond, Rockland, Suffolk and Westchester.[21] The governor directed the commissioner to examine those conditions, and the commissioner found them to be public nuisances. Pursuant to Public Health Law § 1301, the governor declared such conditions public nuisances and ordered local officials to remove the debris.[22]

II. Local Chief Executives

New York’s Executive Law also allows the chief executive of any county, city, town or village to proclaim a local state of emergency within their jurisdiction.[23] The chief executive must find that the public safety is imperiled by, or that there is a reasonable apprehension of immediate danger of, a disaster, rioting, catastrophe or similar public emergency.[24] Such proclamations shall be in effect for a period not to exceed 30 days or until rescinded by the chief executive, whichever occurs first, and can be extended for additional time periods.[25]

During a proclaimed local state of emergency, the chief executive can issue local emergency orders to protect life and property or to bring the emergency situation under control.[26] The Executive Law provides illustrations of what such orders can require, including but not limited to “the regulation and closing of places of amusement and assembly” and “the prohibition and control of the presence of persons on public streets and places.”[27]

Such orders can also suspend local laws, ordinances or regulations.[28] For this authority to be triggered there is an additional prerequisite that (i) the governor must declare a state disaster emergency, or (ii) other specific statutory requirements must be met.[29] In addition, local laws, etc. can only be suspended if they may hinder necessary action in coping with a disaster or recovery from a disaster.[30] This authority is also subject to federal and state constitutional, statutory and regulatory limitations.[31]

Local emergency orders are effective for five days after promulgation or upon declaration of the chief executive that the state of emergency is over, whichever occurs first, and can be extended for additional time periods.[32]

III. The State Commissioner of Health

 A. Orders for Summary Action

 New York’s Public Health Law gives the commissioner authority to protect public health in various contexts. What is commonly referred to as a commissioner’s order, or order for summary action pursuant to Public Health Law § 16, is a significant tool that the commissioner can use to address many kinds of public health threats.

The statute does not require the declaration of an emergency and gives the commissioner unique and broad power:

Whenever the commissioner, after investigation, is of the opinion that any person is causing, engaging in or maintaining a condition or activity which in his opinion constitutes danger to the health of the people, and that it therefore appears to be prejudicial to the interests of the people to delay action for fifteen days until an opportunity for a hearing can be provided . . . the commissioner shall order the person, including any state agency or political subdivision having jurisdiction, by written notice to discontinue such dangerous condition or activity or take certain action immediately or within a specified period of less than fifteen days.[33]

The commissioner is required to provide recipients of such orders an opportunity to be heard and to present proof that the basis for the order does not constitute a danger to the public health.[34] No hearing occurs if one is not requested.

In 2014, the commissioner issued orders for summary action for the prevention and control of the ebola virus Ddisease (EVD). The first of such orders, issued on October 16, 2014, required that general hospitals, diagnostic and treatment centers, off-campus emergency departments, ambulance and advanced life support first responder services, funeral directors and funeral establishments implement and comply with prescribed requirements for EVD preparedness.[35]

The second order was issued on October 27, 2014.[36] It required that the New York City Department of Health and Mental Hygiene (DOHMH) and its commissioner, and the presiding officer of each local board of health in the state outside of New York City, quarantine individuals exposed to EVD who arrived at John F. Kennedy International Airport or were elsewhere in the state, pursuant to standards set forth in the order.

B. Directives to Local Boards of Health

Local boards of health serve a key role in public health. The commissioner exercises general supervision over their work unless otherwise provided by law.[37] Similarly, the department, which the commissioner heads, is responsible for supervising the control of disease and the abatement of nuisances affecting, or likely to affect, the public health.[38]

As part of that oversight authority pertaining to nuisances, pursuant to Public Health Law § 1303(4), the commissioner can direct a local board of health to take action that is necessary for the public good.

The commissioner used this tool in connection with banning the sale and distribution of drugs commonly referred to as bath salts and synthetic marijuana pursuant to Public Health Law § 16 in 2011 and 2012. Pursuant to Public Health Law § 1303(4), orders banning those substances also directed the presiding officer of each local board of health to disseminate the orders and to ensure compliance with them.[39]

Public Health Law § 1303 does not apply to the City of New York.[40] Accordingly, the commissioner cannot issue directives to New York City health officials under that provision. However, Public Health Law § 16 does not contain a similar restriction and expressly provides that the Commissioner can issue orders to, among others, any political subdivision. As referenced in section III. A. above, that is the statute the commissioner used to order DOHMH and its commissioner to take certain actions in connection with EVD.

C. Emergency Regulations

Emergency regulations are an additional tool available to the commissioner.[41] New York’s State Administrative Procedure Act, which governs the process for rulemaking, allows a state agency to immediately adopt a regulation if the agency finds it necessary for the preservation of the public health, safety or general welfare, and compliance with standard rulemaking requirements would be contrary to the public interest.[42] In those circumstances, an agency may dispense with standard rulemaking requirements, such as publication of a notice of proposed rulemaking in the New York State Register and affording the public an opportunity to comment on a rule before it is enacted.[43]

Generally, emergency rules remain in effect for 90 days after filing with the New York secretary of state and can be readopted for 60-day periods.[44]

The commissioner has used this tool in connection with the COVID-19 pandemic. One package of emergency regulations amended, added and repealed multiple sections of department regulations to, among other things, “clarify the authority and duty of the New York State Department of Health . . . and local health departments to protect the public . . . through appropriate public health orders issued to persons diagnosed with or exposed to a communicable disease.”[45]

These regulatory changes included comprehensive amendments. Some of the changes relate to powers referenced in this article, including this sample of provisions:

  • the commissioner may issue, or direct the local health authority to issue, isolation and quarantine orders;[46]
  • that does not relieve local health authorities of their duty to issue isolation and quarantine orders in the absence of such direction from the commissioner;[47] and
  • under certain circumstances, the commissioner may elect to lead outbreak investigations, but local health authorities shall still assist and take action as the commissioner deems appropriate.[48]

In a second regulatory package, the department added by emergency adoption a new Subpart 66-3 to Title 10, titled “COVID-19 Emergency Regulations.”[49] The department’s filing states the purpose of these regulations is to codify existing obligations imposed by Governor Cuomo’s executive order 202.8, ordering the reduction of in-person workforces of non-essential businesses by 100%, and executive order 202.10, ordering the cancellation/postponement of non-essential gatherings of any size for any reason.[50]

The new subpart states that it shall apply for the duration of any state disaster emergency declared pursuant to sections 28 and 29-a of the Executive Law related to the outbreak of COVID-19 in New York State.[51] As the governor authorizes the incremental re-opening of the state, the department will likely need to examine the extent to which these emergency regulations may need to be revised.

IV. Local Health Officers / Local Boards of Health

 Pursuant to the Public Health Law, local health officers[52] and local boards of health[53] have responsibilities concerning enforcement of the Public Health Law.[54] This includes, among other things, obligations related to the control of illness outbreaks and public health nuisances.[55]

Isolation and quarantine orders are tools local health officers and local boards of health have to manage communicable disease.[56] For public nuisances, local boards of health can order the “suppression and removal of all nuisances and conditions detrimental to life and health found to exist within their health districts.”[57]

The Public Health Law exempts New York City from these statutes.[58] This includes the majority of sections in Article 3 and provisions regarding the powers of local health officers and boards of health.[59]

Accordingly, the Public Health Law is not the source of New York City’s authority to issue isolation and quarantine orders[60] or to abate public health nuisances.[61] Instead, such powers of DOHMH and its commissioner are set forth in the New York City Charter, the Administrative Code of the City of New York and the Rules of the City of New York.

Despite these distinctions regarding New York City, the governor’s authority to issue executive orders applies statewide. As addressed in section III. B. above, the commissioner’s authority to issue orders for summary action under Public Health Law § 16 is also statewide.

In addition, although New York City is generally exempt from Article 3, it gives the commissioner statewide authority to annul or modify an order, regulation, bylaw or ordinance of a local board of health concerning a matter which affects the public health beyond the board’s geographic jurisdiction.[62] Accordingly, that power of the commissioner applies to New York City as well.

V. Conclusion

Public health crises can have numerous causes, and a crisis can be statewide or limited to a small portion of a municipality. Therefore, a “one size fits all” approach does not apply to public health concerns of this nature. In recognition of that, New York State law provides a variety of legal tools — to multiple levels of government — so the response to a public health threat can be tailored to fit the specific needs.

James E. Dering is a Partner at Garfunkel Wild, P.C. Mr. Dering formerly served as General Counsel of the New York State Department of Health. He has also served as the Bureau Chief of the New York State Attorney General’s Health Care Bureau.     

[1] This article was submitted for publication on May 1, 2020.

[2] NBC New York report with live stream of Governor Cuomo’s March 15, 2020 daily COVID-19 briefing at https://www.youtube.com/watch?v=74PCeiORZog (retrieved March 30, 2020).

[3] This article focuses on some of the tools that exist in state statute. It is not intended to be all-inclusive in that regard. Similarly, the article does not focus on authority that exists in regulations, local laws, or common law (e.g., police powers).

[4] Benet Wilson.

[5] N.Y. Comp. Codes R. & Regs. tit. 9, § 8.202 et seq. (N.Y.C.R.R.).

[6] N.Y. Executive Law § 28(1) (Exec. Law).

[7] Id.

[8] Exec. Law § 20(2)(a).

[9] Id.

[10] Exec. Law § 28(3).

[11] Exec. Law § 29-a(1).

[12] Id.

[13] Id.

[14] Id.

[15] Exec. Law § 29-a(2)(b).

[16] Exec. Law § 29-a(2)(a).

[17] N.Y. Public Health Law § 1301(1) (PHL).

[18] PHL § 1301(2).

[19] PHL § 1301(4).

[20] Id.

[21] 9 N.Y.C.R.R. § 8.63.

[22] Id.

[23] Exec. Law § 24(1). Note: Undoubtedly to allow a coordinated response to the COVID-19 pandemic, Governor Cuomo’s Executive Order 202.5 (9 N.Y.C.R.R. § 8.202.5) provides that notwithstanding Exec. Law § 24 authorizing local orders, no locality or political subdivision shall issue any local emergency order or executive order with respect to COVID-19 without approval of the NYS Department of Health.

[24] Id.

[25] Id.

[26] Id.

[27] Exec. Law § 24(1)(c),(e).

[28] Exec. Law § 24(1).

[29] Exec. Law § 24(1)(g),(7).

[30] Exec. Law § 24(1)(g).

[31] Id.

[32] Exec. Law § 24(2). See also Exec. Law § 24(1)(i) specific to suspensions of local laws, ordinances and regulations.

[33] PHL § 16.

[34] Id.

[35] https://www.health.ny.gov/diseases/communicable/ebola/docs/commissioner_order.pdf (retrieved March 30, 2020).

[36] https://www.health.ny.gov/diseases/communicable/ebola/docs/commissioner_order_2.pdf (retrieved March 30, 2020).

[37] PHL § 206(1)(b).

[38] PHL § 201(c),(n).

[39] See Order for Summary Action dated March 28, 2012: https://www.health.ny.gov/press/releases/2012/docs/synthetic_cannabinoids_order_summary_action.pdf (retrieved March 30, 2020); Order for Summary Action dated August 7, 2012: https://www.health.ny.gov/professionals/narcotic/docs/summary_order.pdf (retrieved March 30, 2020). The related Order for Summary Action dated May 20, 2011, referenced on p, 2 of the Order for Summary Action dated August 7, 2012, is no longer available on the Department’s website. Accordingly, it cannot be viewed to determine if it also utilized PHL § 1303(4).

[40] PHL § 1309.

[41] Note that the Public Health and Health Planning Council (PHHPC     ), subject to the approval of the Commissioner of Health, must adopt certain regulations of the NYS Department of Health. Accordingly, some emergency regulations of the Department must be approved by a vote of PHHPC, unless that requirement is suspended by an Executive Order issued by the Governor.

[42] State Administrative Procedure Act § 202(6)(a) (SAPA).

[43] SAPA § 202(1),(6)(a).

[44] SAPA § 202(6)(b).

[45] https://regs.health.ny.gov/sites/default/files/pdf/emergency_regulations/Investigation%20of%20Communicable%20Disease%3B%20Isolation%20and%20Quarantine.pdf (retrieved March 30, 2020).

[46] 10 N.Y.C.R.R. § 2.13(a)(1).

[47] 10 N.Y.C.R.R. § 2.13(a)(2).

[48] 10 N.Y.C.R.R. § 2.6(d)(1).

[49] https://regs.health.ny.gov/sites/default/files/pdf/emergency_regulations/20-07_social_distancing_measures_0.pdf (retrieved March 30, 2020).

[50] Id., see Regulatory Flexibility Analysis.

[51] 10 N.Y.C.R.R. § 66-3.1.

[52] The term “local health officer” means the health officer of a county, part-county, city, village, town or a consolidated health district. PHL § 2(1)(j).

[53] The term “local board of health” means the board of health of a county, part-county, city, village, town or consolidated health district. PHL § 2(1)(h).

[54] See, e.g., PHL §§ 308, 309, 324, 1303, 1304, 2100.

[55] Id.

[56] PHL § 2100.

[57] PHL § 1303(3).

[58] PHL §§ 312, 1309, 2110.

[59] Id.

[60] PHL § 2110.

[61] PHL § 1309.

[62] PHL § 310.

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