COVID-19 Legal Public Health BOH Guidance

Public health professionals, especially local health departments and boards of health, are facing many questions from local public officials, residents, parents, health care providers and others about COVID–19. The following MAHB series of documents are meant to provide answers and guidance to health departments and boards of health. These documents are provided for educational purposes only and are not to be construed as legal advice. For legal advice, please contact your city or town attorney. Click on hyperlinked questions below to navigate to the answer. 

QUESTION 01.003b: What other local emergency powers exist for cities and town in the case of a public health emergency?(3/23/2020)

QUESTION 01.003a: What can a Board of Health do if a business that offers a service that is not essential refuses to shut down? (3/27/2020)

QUESTION 01.002: What local emergency powers exist for cities and town to close businesses that provide personal care services that require sustained physical contact and cannot comply with social distancing? (3/20/2020)

QUESTION 01.001: Can local boards of health and health departments provide information about the physical location of quarantined individuals to police departments, fire departments and other first responders?(3/20/2020)

 

QUESTION 01.003b: What other local emergency powers exist for cities and town in the case of a public health emergency? (3/23/2020)  — Retrieve PDF Copy of answer here —> Other Local Emergency Powers 3.23.2020 msbredlines3.23.20

ANSWER 01.003b: The authority of a board of health to respond to public health emergencies is embedded in many different state laws and regulations. The Massachusetts Supreme Judicial Court has made it clear that “[t]he right to engage in business must yield to the paramount right of government to protect the public health by any rational means.” Druzik vs. Bd. of Health of Haverhill, 324 Mass. 129, 139 (1949) (citing Lawrence v. Bd of Registration on Med., 239 Mass. 424, 428 (1921)).

Nuisance Law
Massachusetts General Laws Chapter 111, Section 122 requires boards of health to “examine into all nuisances, sources of filth and causes of sickness . . . which may [endanger] public health, [and] destroy, remove or prevent [them].” The statute also gives boards of health the authority to make regulations for public health and safety.
Typically, the board of health serves a “Cease and Desist Order” upon the individual or establishment responsible for the nuisance, orders the abatement of the nuisance, and requests the responsible party to come before the board for a hearing. The order must be in writing and served upon the owner or authorized agent of the establishment.1 These types of hearings are required by law to provide an individual with his or her due process rights. They are considered “quasi-judicial” because the board, after hearing the facts, can decide whether to shut down an establishment to prevent a public health threat.2
Emergency Situations and Due Process

The Massachusetts Sanitary Code permits boards of health to issue orders to address public health emergencies and require actions that are deemed necessary to meet the emergency, including shutting down establishments without holding a hearing. However, an individual who receives such an order may request a hearing by filing a petition and shall be granted a hearing no later than 10 days after the filing of the petition.The Department of Environmental Protection’s Environmental Code also permits boards of health to issue emergency orders. Similar to the Sanitary Code, an individual may request a hearing. However, under the Environmental Code, the hearing shall be granted “as soon as possible.”4

Board of Health Authority to Enact Reasonable Health Regulations

Massachusetts General Laws Chapter 111, Section 31 enables boards of health to make reasonable health regulations, including preventive regulations, to protect public health and safety. Once the board enacts a regulation, notice must be published in a local newspaper, and this publication shall be considered notice to all individuals. The only regulations that require a hearing prior to enaction are those that relate to the subsurface disposal of sanitary sewage.5 While MAHB’s position has always been that a public hearing should be held prior to enacting any regulation, a hearing is often not legally required.

1 SEE MASS. GEN. LAWS ch. 111, §§ 122-25.
2 See Nelson v. State Bd. of Health, 186 Mass. 330, 334-35 (discussing quasi-judicial nature of board of health’s powers).
3 105 CMR 400.200(B).
4 310 CMR 11.05.
5 MASS. GEN. LAWS ch. 111, § 31.

City and town attorneys are solely responsible for providing legal advice to their clients and MAHB urges boards of health and other municipal officials to consult with them prior to issuing any emergency orders.
This information is provided for educational purposes only and is not to be construed as legal advice.

QUESTION 01.003a: What can a Board of Health (BOH) do if a business that offers a service that is not essential refuses to shut down? 

Answer 01.003a_03_27_2020:

By consulting with their Town Counsel and the DPH Guidance’s, the BOH of Health should get a legal opinion that the business is definitely not exempt and performs an essential service.  When it is certain that the business services or part of those services are non-exempt, then a Cease and Desist Order can be issued by the BOH.  A generic template of a Cease and Desist Order can be found  here –> COVID-19 Cease and Desist Order Template 3.27.2020 msbredlines032620

QUESTION 01.002: What local emergency powers exist for cities and town to close businesses that provide personal care services that require sustained physical contact and cannot comply with social distancing? (3/20/2020)  You can find a PDF version of this Guidance by clicking on –>Local Emergency Powers 3.20.2020 msbredlines032020 

Public health professionals, especially local health departments and boards of health, are facing many questions from local public officials, residents, parents, health care providers, and others about COVID–19. MAHB’s series of documents are meant to provide answers and guidance to health departments and boards of health. This document is provided for educational purposes only and is not to be construed as legal advice. For legal advice, please contact your city or town attorney.

ANSWER 01.002: On March 10, 2020, Governor Baker declared a state of emergency in Massachusetts to “facilitate and expedite the use of Commonwealth resources and deployment of federal and interstate resources to protect persons from the impacts of the spread of COVID-19.” (Executive Order No. 591: Declaration of a State of Emergency to Respond to COVID-19, available at https://www.mass.gov/executive-orders/no-591-declaration-of-a-state-of-emergency-to-respond-to-covid-19). As a result of the declaration, the Governor has taken the following steps to date:

• Suspended Elementary and Secondary School Operations from March 17, 2020 until April 6, 2020;
• Limited gatherings of individuals to 25 individuals;
• Prohibition of on-premises consumption of food and/or alcohol effective from March 17, 2020 until April 6, 2020;
• Placed restrictions on hospital visits, including a limitation of one visitor at a time, increased hand hygiene, a prohibition of visitors under the age of 18, and other restrictions;
• Placed restrictions on assisted-living-facility visits, with guidelines being issued by DPH (available at https://www.mass.gov/info-details/covid-19-guidance-and-directives#for-long-term-care-facilities) and the Executive Office of Elder Affairs (available at https://www.mass-ala.org/wp-content/uploads/2020/03/ALR-COVID-19-Guidance-03-11-20-_1_.pdf);
• Issued a Pharmacy Hand Sanitizer Order permitting pharmacists to compound and sell hand sanitizer that confirms to FDA requirements;
• Cancelled non-essential elective hospital procedures;
• Extended Registry of Motor Vehicles renewal timelines of certain credentials;
• Required that all insurers cover medically necessary telehealth services related to COVID-19;
• Modified certain requirements of the Open Meeting Law to enable state and local governments to carry out essential functions, including remote participation in meetings;
• Placed restrictions on Nursing home visits;
• Modified policies for nursing licensure applications to expedite processing of reciprocal licenses; and
• Expedited credentialing procedures for licensed independent practitioners.

Since the Governor’s declaration of a state emergency, some cities and towns have issued their own “emergency declarations.” The Governor’s authority to issue emergency declarations is clear pursuant to the Civil Defense Act of 1950. The authority of the Chief Executive Officer (CEO) of a municipality—typically the Mayor, City Council, City Manager, Board of Selectmen or Town Manager—to declare an emergency is found in this same act.1

However, the authority of the Board of Health to respond to public health emergencies is not clearly delineated in one law, but instead is embedded in many different state laws and regulations. The legal authority for Boards of Health to respond to the spread of dangerous and infection diseases is found in sections 95 through 105 of Chapter 111, of the Massachusetts General Laws, which address (i) monitoring and tracking people infected and people exposed to those infected, including the use of isolation and quarantine orders; (ii) reporting requirements; and (iii) means boards of health can use in protecting public health.
In implementing the above-described sections of the law, a board of health must use the least restrictive measure(s) available to accomplish its goal. Members of our society enjoy certain constitutionally protected individual rights. When the government restricts rights, it must carefully weigh the rights of individuals versus the obligation to protect public health. The Massachusetts Supreme Judicial Court has made it clear that “[t]he right to engage in business must yield to the paramount right of government to protect the public health by any rational means.” Druzik vs. Bd. of Health of Haverhill, 324 Mass. 129, 139 (1949) (citing Lawrence v. Bd of Registration on Med., 239 Mass. 424, 428 (1921)).

City and town attorneys are solely responsible for providing legal advice to their clients and MAHB urges boards of health and other municipal officials to consult with them prior to issuing any emergency orders. Massachusetts General Laws Chapter 111, Section 104 permits “the selectmen and the board of health [to] use all possible care to prevent the spread of [an] infection” that is dangerous to public health. (See Mass. Gen. Laws. ch. 111, § 104). Typically, the CEO declares a public health emergency and the Board of Health issues orders pursuant to that declaration. However, as stated above, municipal attorneys are the only attorneys who can provide legal advice on these topics.

Currently many municipalities, including but not limited to, Boston, Walpole, Worcester, Brookline, Somerville, Marlborough, Medford, Weymouth, Malden, and Winchester have issued Executive Orders that declare public health emergencies and complement the statewide order. Brookline’s order limits lines at retail stores to 10 people or less, except in grocery stores and pharmacies. Somerville closed all social clubs until at least April 6, 2020.

Several boards of health, like those in Malden, Medford and Winchester, have ordered that all services offered to the public that require sustained physical contact and cannot comply with social distancing requirements be closed until further notice. These orders, which are available on the municipalities’ websites, apply to services like hair salons, barber shops, nail salons, and tattoo and massage establishments.
Guidance on board of health legal authority pursuant to the nuisance laws and pursuant to the legal authority to enact reasonable public health regulations will follow.
This information is provided for educational purposes only and is not to be construed as legal advice.

1. 1950 Mass. Acts 520.

 

QUESTION 01.001: Can local boards of health and health departments provide information about the physical location of quarantined individuals to police departments, fire departments and other first responders? 

The previous ANSWER 01.001 was revised  on Friday, March 20, 2020 4:56 PM — see notices below.

ANSWER 01.001_RV_03_20_2020:

The Guidance and Order described below was circulated to all BOHs by
From: Ohannessian, Dana (DPH) <dana.ohannessian@state.ma.us>
Sent: Friday, March 20, 2020 4:56 PM
Subject: DPH and 911 – Joint Guidance for Local Boards of Health Re: COVID-19 Information Sharing

Dear Local Public Health Colleagues,

As you know, on March 18, 2020, the Massachusetts Department of Public Health (DPH) issued an Order of the Commissioner regarding the sharing of critical information with first responders.  Local boards of health shall disclose to the (Receiving Entity) the addresses of persons living in their jurisdiction who the local board of health has been informed have tested positive for COVID-19.  The disclosure of information shall be limited to the address, and shall not include any other identifying information, including name.

The “Receiving Entity” is described in the Order as “the official with the responsibility for administering the response to emergency calls in their jurisdiction.”  For local Boards of Health, there may be some misunderstanding about to whom they should forward that information.

To avoid any confusion, DPH and the Massachusetts State 911 Department would like to make it clear that the local boards of health should disclose the addresses to the Public Safety Answering Point of jurisdiction.  The PSAP of jurisdiction for each city or town is the appropriate Receiving Entity.

Please find  a copy of the guidance

DPH – 911 GUIDANCE – SHARING OF CRITICAL INFORMATION WITH FIRST RESPONDERS  and copy of the signed Order

LBOH first responders order.3-18-20

Thank you for your ongoing partnership with us in our response to the COVID-19 pandemic.

Kelly Driscoll
Covid-19 Response Team
Executive Office of Health and Human Services
(857) 283-3655

Ron O’Connor, MPH
Director, Office of Local and Regional Health
(617) 938-4437

 

 

COVID-19 Information for Local Boards of Health – https://www.mass.gov/info-details/covid-19-information-for-local-boards-of-health

COVID-19 web site: www.mass.gov/covid19

 

MDPH online resources

 

Website:    www.mass.gov/dph

Local and Regional Health pages:  www.mass.gov/dph/olrh

Blog:             http://blog.mass.gov/publichealth
Twitter:       www.Twitter.com/MassDPH

LinkedIn:     www.linkedin.com/company/massachusetts-department-of-public-health