Local government responsible for disaster planning – including for vulnerable populations
By Michael M. Barrick
Note: This is the second installment in a series of articles regarding emergency management and vulnerable populations. Read the first installment here. Additionally, I wish to thank James Farrell with the Upshur County, W.Va. Office of Emergency Management for first bringing this case to my attention.
Emergency planners are responsible for ensuring compliance to laws from various local, state and federal government agencies. This has been the case for roughly 40 years, but true collaboration and cooperation among emergency responders and planners didn’t start occurring until after the terrorist attacks of September 11, 2001 and then Hurricane Katrina four years later.
Even today, planning and cooperation is sporadic at best. Lessons have been learned, but primarily the hard way – through mistakes caused by the lack of preparedness.
Apparently, many in the emergency preparedness community are slow learners. This has been made painfully obvious by Judge Jesse M. Furman, United States District Judge for the Southern District of New York. As I recently reported, advocates of the disabled successfully argued before Furman that New York City’s emergency planners violated the Americans with Disabilities Act (ADA) by failing to plan for and accommodate the needs of the city’s vulnerable populations during Tropical Strom Irene.
The failure amounted to “benign neglect” according to Furman. While some may consider the decision another case of federal overreach in local affairs, the millions of Americans who are disabled will no longer be ignored by emergency planners. Indeed, regardless of one’s political philosophy, one would hope that any and all emergency planners would carefully consider vulnerable populations as they plan for disasters that will impact their communities. First, because it is the humane and responsible course of action, but also because experience teaches that the needs of vulnerable populations prior to, during and following a disaster are extensive and real. The community healthcare structure will be impacted by meeting the needs of the disabled. The only question is whether the response will be proactive or, as is most common, reactive.
The case was brought against the City of New York and then-Mayor Michael R. Bloomberg by the Brooklyn Center for Independence of the Disabled, the Center for Independence of the Disabled, New York, and two individuals. Prior to trial, Furman certified the lawsuit as a class action lawsuit on behalf of all disabled people – as defined by the ADA – in New York City.
The plaintiffs argued that the city failed to adequately address the needs of people with disabilities in its planning for and response to emergencies. Essentially, the judge concurred, though he did acknowledge that New York City in many ways has a robust emergency preparedness program. Yet, Furman did conclude “…that the City has violated the ADA … by failing to provide people with disabilities meaningful access to its emergency preparedness program in several ways.” He listed six specific areas in which the city failed to comply with the ADA in emergency planning and response. Those include:
(1) “The City’s evacuation plans do not accommodate the needs of people with disabilities with respect to high-rise evacuation and accessible transportation;
(2) “its shelter plans do not require that the shelter system be sufficiently accessible, either architecturally or programmatically, to accommodate people with disabilities in an emergency;
(3) “the City has no plan for canvassing or for otherwise ensuring that people with disabilities — who may, because of their disability, be unable to leave their building after a disaster — are able to access the services provided by the City after an emergency;
(4) “the City’s plans to distribute resources in the aftermath of a disaster do not provide for accessible communications at the facilities where resources are distributed;
(5) “the City’s outreach and education program fails in several respects to provide people with disabilities the same opportunity as others to develop a personal emergency plan; and
(6) “the City lacks sufficient plans to provide people with disabilities information about the existence and location of accessible services in an emergency.”
Ruling Rooted in a Maxim of Disaster Management
Judge Furman, early in the text of his ruling, states clearly what all emergency planners hold as a maxim of disaster management. Said the judge, “The task of planning for, and responding to, emergencies and disasters is one of the most important, and challenging, tasks any government faces. Emergencies can take many forms — from power outages, to hurricanes, to terrorist attacks — and a government, particularly a local government, must be prepared for them to strike at almost any moment.” In short, as all experienced emergency planners know, “All disasters begin and end locally.”
Concept of ‘Benign Neglect’
Furman did acknowledge “Notably, there is no evidence that these failures are a result of intentional discrimination by the City against people with disabilities.” He added, though, “But, the ADA … seek(s) to prevent not only intentional discrimination against people with disabilities, but also – indeed, primarily – discrimination that results from ‘benign neglect.’” As a result, concluded Furman, the ADA requires “affirmative accommodations to ensure that facially neutral rules do not in practice discriminate against individuals with disabilities.”
Perhaps in part because of the lack of intentional discrimination, and because Furman, by his own admission is not expert in emergency management and preparedness, issued a unique remedy. He left it to the plaintiffs and defendants to develop a solution. He explained, “Given the complexity and potential expense involved, there is no question that crafting an appropriate remedy would be better accomplished by those with expertise in such matters and through negotiation, whether court-supervised or otherwise, than by Court order.” So, he ordered, “The parties are therefore directed to meet and confer – in person and with representatives of the Department of Justice, if the elect to participate – about the most productive means of resolving the question of remedies through alternative dispute mechanisms.”
However, Furman added, “…the Court will impose remedies if the parties cannot agree on them…”
This case is 119 pages long. The evidence presented in trial seems to support Furman’s decision. Of course, others may disagree and it may be some time before a final resolution to this case is determined. I strongly encourage emergency planners to take the time to read it. Because Furman’s ruling applies only to New York City, it would be tempting for emergency planners across the nation to pay scant attention to it. That would be a mistake. Furman’s ruling could well become the law of the land. However, one thing is certain now – most communities are probably no better prepared to meet the needs of the disabled in a disaster than is New York City.
That is my experience in West Virginia, which with an aging and relatively unhealthy population, has a high number of vulnerable people. This may be mitigated some by the rugged individualism that is characteristic of the people of Appalachia; still, when disaster strikes, the topography and geography of the mountains isolate the people from one another – and emergency responders – during a disaster.
As a member of a two-county Local Emergency Planning Committee, where I first learned of this case thanks to Mr. James Farrell, I began asking members what we were doing to define, identify and make contact with disabled people. I asked not to accuse local emergency planners of not doing their job, but because hospitals are required by its accrediting agency – The Joint Commission – to make provisions for vulnerable populations in its emergency plans. I wanted to gather information to determine what gaps and vulnerabilities we might have, as a hospital, to meet the needs of the disabled. What I learned instead was that not only does our hospital have its works cut out for it in preparing to meet the needs of the disabled, our entire community does. Then, as I traveled the state, and called upon my colleagues in other states, I discovered that local communities are doing very little, if anything, to plan and prepare for the needs of the disabled in a disaster.
There is no excuse for this. We have simply grown complacent.
The ADA defines a person as disabled if he or she has a physical or mental impairment that substantially limits one or more major life activities, or has a record of such impairment, or is regarded as having such an impairment. A physical impairment is defined by the ADA as “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.”
Needless to say, that is a rather comprehensive list. In fact, in New York City, it constitutes roughly 900,000 people. Here, in central West Virginia, as many as one in four people may fit that definition. But we don’t know where they are. Even in our little town of Weston, with just roughly 5,000 souls, we don’t know who in one of the low-income high rises needs oxygen or mobility assistance. We don’t know who will need medicines if they are isolated from pharmacies for days. We don’t know who will need assistance eating or drinking, or access to dialysis. In short, we don’t even know what we don’t know.
Again, while I find that disturbing and am confident we have folks here willing to honor their obligation to the most vulnerable among us, I am also fearful that we just aren’t taking it seriously. As of this writing, it has been roughly three months since I first suggested a questionnaire be sent to local authorities and agencies who deal with vulnerable populations to see if there are ways we can identify and locate them should they need and desire assistance when disaster strikes. Of the dozens it was sent to, only a handful of folks have responded.
So, many of those charged with caring for people in disasters may not want to tackle the shortcomings identified by Judge Furman in his ruling. However, most of those who are disabled or considered vulnerable almost certainly want and expect help during a disaster. Otherwise, folks would not have made a federal case out of it.
We can only hope that the parties on both sides of this case reach a remedy that will benefit not only the people of New York City, but disabled Americans everywhere. We must hope that. Otherwise, a judge who knows nothing about disaster preparedness and management will impose a remedy. That may be less than desirable, but it is more than doing nothing.
That is our choice as emergency planners. We all know disasters begin and end locally. We know that all those within our jurisdictions are our responsibility. Certainly, we don’t need a judge to tell us that. Or do we?
© Michael Barrick / Barrick Report, 2014.