Commonwealth agencies will be responsible for compensating the entities from which equipment was taken.
On April 8, 2020, because of “a critical shortage of PPE, pharmaceuticals, and other medical resources,” Pennsylvania Governor Tom Wolf signed an Executive Order to “Ensure the Efficient Allocation and Effective Use of Critical Medical Resources.” The order authorizes Pennsylvania emergency management officials “to commandeer and utilize all PPE, pharmaceuticals, and other medical resources required to respond to, provide care for those afflicted by, or otherwise prevent the spread of COVID-19 from all private, public, and quasi-public health care providers and facilities, as well as manufacturers and suppliers of PPE, pharmaceuticals, and other medical resources located within the Commonwealth of Pennsylvania.” The order is effective immediately.
The order “will allow us to transfer supplies and information between medical facilities to both high-population, high-impact areas and lower population areas that might not have as many existing medical resources,” Governor Wolf said in a statement announcing the order.
Pennsylvania’s Emergency Management Services Code, 35 Pa.C.S. § 7301(f)(4), authorizes the governor “to commandeer or utilize any private, public, or quasi-public property if necessary which to cope with the disaster emergency,” subject to any applicable requirements for compensation.
Pursuant to the order, private, public and quasi-public healthcare providers and facilities, as well as manufacturers, distributors and suppliers of PPE, pharmaceuticals and other medical resources located within the commonwealth, are required to submit current inventory quantities of PPE, pharmaceuticals and other medical resources to Pennsylvania Emergency Management Agency (PEMA) within five days of the order.
The order also requires healthcare providers and facilities to provide written reports detailing facility healthcare needs and other pertinent information in the form, manner and frequency directed by PEMA.
Commonwealth agencies will be responsible for compensating the entities from which equipment was taken, at “the average price at which the same or similar consumer goods or services were obtainable in the affected areas during the last seven days immediately prior to March 6, 2020.”
What You Should Know About Emergency Seizures
If an entity becomes subject to a seizure pursuant to the governor’s order, it should conduct an accounting of all PPE and medical resources and ensure that it has thorough and accurate records of any commandeered property. Documentation of these items will be vital in receiving compensation from commonwealth agencies. Those who are required to use PPE for the safe and effective manufacture of pharmaceuticals and sterile medical supplies should attempt to obtain exemptions from the order, as no exceptions are included in the language of the order.
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If you have any questions about this Alert, please contact Sharon L. Caffrey, Raymond Vanderhyden, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.
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