AN ACT relative to the emergency powers of the commissioner of health and human services.


SPONSORS: Rep. Marsh, Carr. 8; Rep. Lang, Belk. 4; Rep. Baldasaro, Rock. 5; Rep. Edwards, Rock. 4; Rep. Craig, Coos 4; Rep. Prout, Hills. 37; Rep. J. Osborne, Rock. 4; Rep. Salloway, Straf. 5; Rep. Blasek, Hills. 21


COMMITTEE: Health, Human Services and Elderly Affairs






This bill makes various changes to the powers of the commissioner of the department of health and human services during a public health emergency; authorizes the joint legislative oversight committee on health and human services to review, and rescind by a 2/3 vote, emergency orders issued by the commissioner; gives a person subject to a treatment order for a communicable disease a right to a hearing on the order; and amends the membership and duties of the ethics oversight advisory committee.


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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.






In the Year of Our Lord Two Thousand Twenty One


AN ACT relative to the emergency powers of the commissioner of health and human services.


Be it Enacted by the Senate and House of Representatives in General Court convened:


1  Department of Safety; Public Health Emergency Management Powers.  Amend RSA 21-P:53 to read as follows:

21-P:53  Public Health Powers and Duties.  During the existence of a state of emergency under this chapter, the commissioner of health and human services shall have the following powers and duties, subject to the direction and control of the governor, which are in addition to those set forth in RSA 141-C; provided that such powers and duties shall be limited to the specific nature of the emergency, its geographic limits, and the conditions that brought it about, as specified in the declaration of the state of emergency:

I.  The commissioner shall have the responsibility and authority to carry out all public health activities within the state in cooperation and collaboration with the division of homeland security and emergency management.

II.  The commissioner may, without the approval of the [governor's] executive council or the legislative fiscal committee, and notwithstanding the provisions of RSA 4:45, 9:13-d, and 9:19, [and any other law to the contrary,] purchase and distribute anti-toxins, serums, vaccines, immunizing agents, antibiotics, and other pharmaceutical agents that the commissioner deems to be in the interest of public health.

III.  If there is a statewide or regional shortage or threatened shortage of any anti-toxins, serums, vaccines, immunizing agents, antibiotics, and other pharmaceutical agents, the commissioner may control, [restrict] prioritize, and ration the use, sale, dispensing, distribution, or transportation of such products as necessary to best protect the health, safety, and welfare of the people of this state.  In making rationing or other supply and distribution decisions, the commissioner shall determine high risk or critical need groups that shall receive priority for such products.

III-a.  The commissioner shall have no power to restrict the ability of a licensed practitioner to prescribe pursuant to RSA 329 and RSA 326-B.

III-b.  If during a public health emergency, a treatment or vaccination should become available which is anticipated to be in limited supply, the commissioner shall develop, in consultation with the ethics oversight advisory committee, established in RSA 141-C:27, a plan for its distribution.

IV.  The commissioner may investigate any incident or imminent threat of any disease or health condition that may be caused by a natural disaster, radiation or chemical exposure, or the release of any microorganism, infectious substance, or naturally occurring or manufactured biological product, that poses a risk of a significant number of human fatalities or incidents of permanent or long-term disability.  Such investigations may include requiring information from any health care provider or other person affected by, or having information related to, the incident or threat, inspections of buildings and conveyances and their contents, laboratory analysis of samples collected during the course of such inspections, and requiring a physical examination and the provision of specimens of body secretions, excretions, fluids, and discharges for laboratory examination of any person having a disease or health condition that necessitates an investigation under this paragraph.

V.  The commissioner may order a person to undergo such medical care as may be necessary to treat or prevent an incident or threat of disease or other health condition prompting an investigation pursuant to paragraph IV.  Such care may include immunization of individuals as necessary to prevent the spread of contagious disease, except that an individual may refuse treatment or immunization pursuant to the provisions of [RSA 141-C:15, VI] RSA 141-C:16 and RSA 141-C:20-c.

VI.  Any order compelling an investigation, physical examination, the provision of specimens, medical treatment or care, or immunization, and any other order of the commissioner under this chapter, shall be subject to the due process requirements of RSA 141-C:14-a.

VII.  The department of health and human services shall acquire and retain only the minimum amount of information, specimens, and samples relating to individuals necessary to carry out its obligations under this section.  Any genetic testing of specimens and samples shall be limited to the viruses, bacteria, fungi, or other microorganisms therein.  Personally identifiable information shall not be acquired or retained unless necessary for the department to carry out its responsibilities under this section, RSA 141-C, or any other provision of law.  Such information shall not be retained beyond the duration of the state of emergency without the approval of the governor and executive council, which information shall be subject to the confidentiality provisions of RSA 141-C:10.

VIII.  Any emergency order issued under this section shall be subject to review by the joint legislative oversight committee on health and human services, established in RSA 126-A:13, and may be rescinded by a 2/3 vote of that committee.  The commissioner shall notify the ethics oversight advisory committee established in RSA 141-C:27 of any emergency order issued under this section, and the joint legislative oversight committee shall consider the input of the ethics committee, if provided, in any decision.  If the emergency precludes either committee from meeting in person, they shall be  authorized, notwithstanding any other provision of law, to meet remotely for this purpose.

2  Communicable Disease; Treatment and Care of Sick.  Amend RSA 141-C:15, VI to read as follows:

VI.  When an individual subject to an order for treatment by the commissioner refuses to undergo such ordered treatment, the commissioner may issue a complaint, which shall be sworn to before a justice of the peace.  Such complaint shall set forth the reasons for the order imposing treatment, the nature of the treatment to be provided, and the place or facility where the treatment shall be provided.  Upon being presented with such an order, the individual may petition the superior court in the county in which the person resides for a hearing on the order.  If a hearing is granted, the superior court shall  hear the matter within 48 hours of the date of the order, excluding weekends and holidays.  The superior court shall issue a decision as soon as practicable after completion of the hearing.  An aggrieved individual may petition the supreme court for an expedited appeal.  If no appeal is granted or the commissioner's order is affirmed on appeal, any law enforcement officer shall take such individual into custody and transport the individual to the place or facility where the treatment is to be provided.

3  Communicable Disease; Ethics Committee.  Amend RSA 141-C:27 to read as follows:

141-C:27  Ethics Oversight Advisory Committee.  

I.  There is hereby established an ethics oversight advisory committee to offer advice to the commissioner relative to the ethical issues that may be identified in the course of planning for, and responding to, outbreaks of communicable disease that threaten to become epidemic or pandemic and to review and provide recommendations for investigations, orders, and treatment ordered by the commissioner.

II.  The committee shall:

(a)  Consider the ethical implications of any of the powers that may be exercised by the commissioner under the provisions of this chapter including, but not limited to, the confiscation, distribution, and rationing of anti-toxins, serums, vaccines, immunizing agents, antibiotics, and other pharmaceutical agents, and mechanical equipment; the issuance and enforcement of orders of isolation, quarantine, medical examination, and medical treatment; issues relative to information sharing and confidentiality; and the provisions for due process for orders issued pursuant to this chapter.

(b)  Review investigations initiated pursuant to RSA 141-C:9, orders issued pursuant to RSA 141-C:12, and treatment ordered pursuant to RSA 141-C:15.

(c)  Review orders issued by the commissioner pursuant to RSA 141-C:16-a and RSA 141-C:16-b not appealed to the superior court.  If the committee should determine any such orders to be inappropriate, they may by majority vote direct the commissioner to rescind the order.  When meeting for this purpose, and when discussing protected health information obtained for public health purposes pursuant to 45 C.F.R. 164.512(b)(1)(i), as provided by RSA 91-A:5 IV, the committee's proceedings shall be exempt from RSA 91-A.

(d)  Consider the competing rights of disabled persons who might be unable to comply with certain orders, health care workers who are entitled to a safe workplace, and the need to protect the public from communicable disease, and may recommend modification of orders to address specific concerns.

(e)  Consider both the need to protect the most vulnerable members of society as well as the need for the most efficacious means to control a public health emergency when consulting with the commissioner pursuant to RSA 21-P:53, III-b in developing a plan for the distribution of a new treatment or vaccination.

III.  The members of the committee shall be as follows:

(a)  Two members of the house or representatives, one of whom shall be from the minority party, appointed by the speaker of the house of representatives.

(b)  One member of the senate, appointed by the senate president.

(c)  The director of the department of health and human services, division of public health services.

[(b)] (d)  The state epidemiologist.

[(c)] (e)  The attorney general, or designee.

[(d)] (f)  A representative of a public health network, appointed by the commissioner.

[(e)] (g)  A representative from a college or university public health program, appointed by the commissioner.

[(f)  A chief of police or a police officer of a local police department, appointed by the New Hampshire Association of Chiefs of Police.

(g)  A chief of a local fire department, appointed