Urban Lawyer

Emergency Management and Vulnerable Populations

by Angelyn Spaulding Flowers

Angela Spaulding Flowers is a Graduate Program Coordinator and Professor, Homeland Security, Co-Director, Institute for Public Safety & Justice, University of the District of Columbia; Program Director, UDC Homeland Security-STEM Program; B.A., Howard University; J.D., Georgetown University; Ph.D., Commonwealth Open University. Served as Project Director, National Legal Preparedness Training Program, a UDC-FEMA Cooperative Agreement project from 2007-2012.

“One of the primary responsibilities of state and local governments is to protect residents and visitors from harm, including assistance in preparing for, responding to, and recovering from emergencies and disasters.”1

THIS ARTICLE LOOKS AT LEGAL ISSUES ASSOCIATED WITH EMERGENCY MANAGEMENT and the obligation to individuals historically identified as vulnerable or special needs populations. The preliminary question arising is: “To whom are we referring?” Since 2011 the Federal Emergency Management Agency (FEMA) has used as its doctrinal underpinning the concept of the “whole community.”2 The whole community concept recognizes

. . . the full spectrum of community residents and members (including but not limited to people speaking diverse languages or from diverse cultures or economic backgrounds, all ages from children and youth to seniors, people with disabilities, others with access and functional needs, and populations traditionally underrepresented in civic government).3

This article looks at that segment of the population with the objective of providing a general overview of the law relative to persons with disabilities and others with access and functional needs in contemplation of a possible emergency, disaster, or catastrophic event.

The phrase “children and adults (or persons) with disabilities and others with access and functional needs” is broadly inclusive. It incorporates those individuals requiring additional assistance in the event of an emergency or disaster and includes persons, both with and without disabilities, needing such assistance.4 “FEMA will work with the whole community to ensure equal access to disaster services and to meet the functional needs of all individuals without discrimination.”5 This statement, from FEMA’s “Strategic Plan for Fiscal Years 2014 – 2018” is unequivocal in its intent and in its expectations of state and local jurisdictions.

The requirements for compliance are contained in a mix of federal statutes, regulations, guidance documents, and a range of federal court decisions addressing emergency planning and vulnerable populations, the full examination of which could itself be the subject of a book. By necessity, this article has a more limited scope, focusing on some of the programs, services, or activities in the response mission area.6   The response phase includes those “capabilities necessary to save lives, protect property and the environment, and meet basic human needs after an incident has occurred.”7

This article provides an introduction to some of the legal issues presented as jurisdictions endeavor to provide integrated and nondiscriminatory emergency services to their citizens while ensuring that persons with disabilities, and others with access and functional needs, are fully considered. As will be seen, the types of accommodations required for persons with disabilities often address many of the access and functional needs of those persons without disabilities. This article is intended to provide state and local government officials and their lawyers with a solid understanding of emergency management requirements relative to the provision of services to vulnerable populations. It represents a starting point for the legal considerations necessary as state and local governments endeavor to prepare for, respond to, and recover from emergencies and disasters.

After defining disability and discussing the integration mandate in considering the range of support needed, this article will provide an overview of the expectations associated with selected aspects of the planning process: communications, special needs registries, community evacuation, transportation, consideration of service animals, and emergency shelter programs. These topics will be discussed against the backdrop of the relevant federal authority providing the minimum standards that jurisdictions must meet both to provide emergency services in a nondiscriminatory manner and to meet eligibility requirements for Stafford Act reimbursement. There are some issues that re-occur in several of these topic areas. Where applicable, they will be discussed once and then incorporated by reference into the discussion of other topic areas where the issue may also arise.

An effort has been made to convey the perspectives of the applicable federal agencies and judicial decisions in order to provide a sense of the standards and expectations to which the performance of state and local actors will be held. Consideration of the needs of such vulnerable populations is a fairly new area. Relatively few court cases have looked at the specific issue of the delivery of emergency services in a disaster to those with disabilities, and none have yet addressed the broader area of access and functional needs within this context. The available cases will be examined and where necessary, the findings extrapolated to the larger population. For illustrative purposes, approaches used by jurisdictions in their efforts to respond to emergencies and disasters within a whole community framework are also presented.

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