September 2009 - Dealing with the H1N1 Virus

DUFF, WHITE & TURNER, L.L.C.
Attorneys And Counselors At Law

DEALING WITH THE H1N1 VIRUS

With the opening of the school year, and the beginning of the flu season, there has been much discussion of efforts to control the spread of the H1N1 influenza virus. The U.S. Centers for Disease Control and Prevention (CDC) has identified children ages six months to 24 years as among the groups most likely to be infected, and many school districts already are experiencing student and staff absences because of flu or flu-like symptoms. The H1N1 virus is not expected to be any more severe than the usual strands of seasonal flu, at least in those who do not have underlying health conditions; however, the H1N1 virus is easily spread, particularly among certain groups, including school-age children.

South Carolina law requires school districts to have a comprehensive emergency plan that sets out communication and management procedures in the event of a crisis. Plans should include specific procedures for short-term, high impact events, such as inclement weather, intruders, criminal acts, or accidents. A flu outbreak, however, may have more wide-spread and long-term effects, amounting to what is referred to as a pandemic. Therefore, district emergency plans should be reviewed to ensure that they adequately address pandemic procedures related to 1) coordination with local health departments and health care providers, 2) preventive education and hygiene programs, 3) school or district-wide vaccination programs, 4) school cleanliness and sanitation, 5) student and staff screenings, 6) accommodation of absences, 7) medical homebound requests, 8) data reports to the proper authorities, 9) isolation of infected persons, 10) handling the effects of staffing shortages for an extended period, and 11) cancellation of school classes and/or events.

Because school-age children are among those most likely to be infected with the H1N1 virus, the S. C. Department of Health and Environmental Control (DHEC) is soliciting assistance from school districts in its efforts to prevent and/or contain a pandemic through vaccination programs. District participation is voluntary; because districts have an interest in minimizing the spread of the virus, however, a district may elect to participate. DHEC has suggested three possible school-based vaccination program options, operated either by: 1) district nurses and other employees; 2) DHEC personnel, with assistance from district employees; or 3) an outside entity, such as a local hospital or a physician’s office, with assistance from school employees. Since the vaccination must be administered by a nurse, and only pursuant to a physician’s order, one advantage of partnering with DHEC is that school nurses can act under the authority of the “standing” physician’s order issued by DHEC. The terms and conditions of a written agreement between DHEC and school districts, necessary before implementing a school-based program, are still being determined. If a district does choose to become involved in one of these vaccine programs, it also should be certain that, before administering the vaccine to students, parents are fully informed about the vaccine and sign an appropriate consent form. Similarly, informed, written consent should be obtained before the vaccine is administered to any district employees.

Another issue for districts is whether to become “ship-to” sites for the vaccines, where districts accept and store shipments of the vaccines for use in a school-based vaccination program. Before agreeing to becoming a site, districts should be certain that they have appropriate, refrigerated storage and transportation equipment. Districts also will need sufficient numbers of trained staff to handle the vaccines and associated record-keeping duties. Districts have no obligation to undertake this role, and should carefully consider their capacity to fulfill the duties of a ship-to location before agreeing to serve in that capacity.

The Secretary of the U.S. Department of Health and Human Services (DHHS) issued a declaration on June 15, 2009, that the 2009 H1N1 virus constitutes a public health emergency. As a result, the federal Public Readiness and Emergency Preparedness Act will provide immunity to districts and their employees who are involved in measures to control the virus, including the administration of the H1N1 flu vaccine. Districts also may have liability protections under the S. C. Tort Claims Act or, if working through DHEC, the S.C. Government Volunteers Act and/or the S.C. Emergency Health Powers Act. Nevertheless, districts should consult their insurance carriers to assure they have liability coverage for the district and its employees. When working through DHEC, the district and its employees may be covered under DHEC insurance policies, depending in part on when clinics are operated and whether district employees assume the status of unpaid DHEC volunteers for the purposes of the vaccine administration.

The possibility of an H1N1 pandemic provides a strong impetus for school districts to review and update their procedures and guidelines for crisis situations. State and federal agencies such as the CDC, DHHS, DHEC, and the U.S. Department of Education have valuable information, guidance, and checklists for schools and school districts about the H1N1 influenza pandemic on their websites. For example, the CDC’s guidance for school administrators can be found at www.flu.gov/professional/school/k12techreport.html and the DHHS’s school checklist is posted at www.pandemicflu.gov/plan/schoolchecklist.

Should you have questions about your district’s plans and procedures for pandemics in general, or the efforts to contain the H1N1 virus in particular, please feel free to contact this firm.