A Menu of Suggested Provisions for Public Health Mutual Aid Agreements

Legal Scope or Effect

Descriptive Note

Well-crafted provisions addressing specific legal issues (e.g., liability, indemnification, reimbursement) will clearly and expressly state the intended legal scope or effect of the relevant provision. Nonetheless, on occasion, parties may, for various reasons, choose to incorporate a statement of an agreement’s general legal scope or effect.

 

For example, states entering into agreements with one another (or possibly with a Canadian province or Mexican state) will obviously need to closely consult with legal counsel concerning the impact of U.S. Constitution, Article I, section 10, clause 3, which states that “No state shall, without the consent of the Congress, … enter into any agreement or compact with another state, or with a foreign power….” In the course of legal analysis, including consideration of court decisions interpreting the “compact clause”, counsel may wish to contemplate the advisability of the following sort of provision:

• Nothing in this Agreement is to be construed as an encroachment on the full and free exercise of U.S. federal authority, as an interference with the just supremacy of the U.S. or its several states, as affecting the federal structure of the United States or as enhancing the political power of the party states at the expense of each other or other U.S. states.
   

Additional optional sample provisions

Articulating agreement’s compatibility with relevant laws:

• Nothing in the Agreement shall be interpreted to conflict with applicable laws within the jurisdiction of any Party. However, any Party may request from any other Party the suspension of such laws if their normal application might lead to delay or difficulty in the rapid execution of necessary public health emergency measures.
  
   
• The Parties will comply with all Federal and State laws relating to the provision of services under this Agreement and will maintain in effect all permits, licenses, governmental approvals and accreditations that may be necessary for that purpose.
  
   

Providing for continuing effect of remaining provisions if part of an agreement is ruled invalid by a court:

• The provisions of this Agreement are severable. If any portion of this Agreement is determined by a court to be void, unconstitutional or otherwise unenforceable, the remainder of this Agreement will remain in full force and effect.
  
   

Stating an intention to “bind” the parties:

• This Agreement shall be binding upon the Parties and inure to the benefit of any successor entity which may assume the obligations of any Party. A Party, however, may not assign this Agreement without prior written consent of the Parties.
  
   

Stating an intention to create a “nonbinding” document:

• This Agreement is a voluntary, nonbinding agreement among the Parties. However, with its signature on this Agreement, each Party states its intent to cooperate with one another and coordinate response efforts in the event of a public health emergency. Each Party also agrees to incorporate the terms of this Agreement into its emergency management plans.