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Continuity of Operations (COOP) :- OverviewContinuity of operations refers to the process of ensuring that agencies, governments, businesses, etc. are able to continue to function when struck by disaster or a catastrophic event. Such a scenario could be sudden onset or long term problem. Regardless, the disaster life cycle applies to the approach to handling such cataclysmic events. Traditionally, governments were limited in their abilities to assist the private sector in responding to or recovering from disasters short of supporting infrastructure and bringing back utilities. However, this is changing as we speak under the leadership of the current FEMA director. Partnerships between the public and private sector, bringing business leaders into the loop regarding community preparedness and educational opportunities are just some of the changes which have been embraced within community emergency management in the last five years. Business and the private sector have many best practices which could aid and improve local governments in the setting of a disaster and the two would do well to learn from each others’ strengths. This week’s assignment will familiarize you with several terms relative to response and recovery in the private sector as well as the ability to maintain operational capabilities during an incident which may impact the responding jurisdiction or agency itself.- Reading AssignmentsAttached Files: 1600-16-PDF (1).pdf (3.003 MB) 610-Continuity of Operations planning.pdf (258.679 KB) 610-coop_brochure.pdf (389.489 KB) 610-NSPD-51_ National Continuity Policy.html (28.933 KB) coop_multi_year_plan_guide.pdf (151.213 KB)Perry & Lindell chapter 8COOP Planning document – See PDF above. NFPA Standards document – Note – This is a big document that should be part of your library. We will refer to it periodically, as will other faculty. You will find this both attached above and in Course Documents. Note – This is the 2016 update, which is the most recent.FOCUS POINTSDon’t be intimidated by the reading list. You have seen some of the Perry material before, so this is review. The Planning Document is a guide to writing a COOP. It is not hard reading. The NFPA Standards document is something we will use throughout the Masters, so file it for future reference, though you will use part of it this week.- COOP AssignmentAttached Files: Examplar COOP2 SC.docx (711.95 KB) Exemplar COOP document.docx (45.175 KB)Using the required reading for this week, identify the crucial components of a viable “FPC 65” COOP plan. Identify a ‘Critical Infrastructure / Key Resource’ organization for your COOP plan, provide a description of the CIKR function provided by the organization, and delineate the ‘essential functions and activities’ required to provide that function or service.The FEMA document attached as coop-multi-year_plan is most helpful.To clarify….Review the FEMA Multi-Year Guide.Choose an entity such as a business, community center, hospital etc.Determine what critical infrastructures and key resources the entity provides and uses.Describe briefly why each CI/KR is important.Use Annex C of the FEMA plan as a guide to write a brief report of your entity’s COOP. NOTE – Attached you will find two examples of well-done COOPs, both written by students.
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JEM
Continuity of Operations planning: Meeting the standard of care
Robin J. Clark, JD
Megan H. Timmins, JD
ABSTRACT
Recent disasters have increased the public’s
awareness of the lack of emergency preparedness of
state and local governments. The attacks on the World
Trade Center in 2001 highlighted failures in government agency coordination, while the anthrax attacks
that followed and the more recent natural disasters of
Hurricanes Katrina and Rita in 2005 have deepened
concerns that our government is unprepared for emergencies. Partially in response to the public’s concern,
the federal government has encouraged Continuity of
Operations (COOP) planning at the federal, state, and
local government levels.
Public attention, government engagement, and the
promulgation of federal directives and guidance are
leading to an increase in the standard of care for all
public sector planning efforts, thus creating potential
liabilities in the areas of COOP planning, testing,
training, and maintenance. At this point, COOP planning is becoming the norm for state and local government agencies, and while the process of COOP planning may itself expose agencies to certain liabilities,
there is also an increase in the potential liability for
agencies that do not undertake COOP planning
efforts. Further, it appears that the potential liability
of agencies that do not engage in COOP planning far
exceeds any liabilities incurred through the planning
process.
Key words: Continuity of Operations, legal, liability,
standard of care, Federal Preparedness Circular 65
INTRODUCTION
The attacks on the World Trade Center and the
anthrax scare of 2001 incapacitated government offices
nationwide and bred fear among the general public.1
Journal of Emergency Management
Vol. 6, No. 5, September/October 2008
In 2005, the government’s failure to effectively evacuate or provide shelter for New Orleans residents
during Hurricanes Katrina and Rita became an international embarrassment and a national tragedy.2
Historically, government liability for emergency
planning and subsequent emergency response failures have been difficult to prove. However, the focus
on emergency planning and response that has been
spurred by recent disasters may be creating potential
liabilities for government actors in the area of
emergency planning, and particularly, Continuity of
Operations (COOP) planning.
BACKGROUND ON COOP
COOP planning ensures the continuity of an
agency’s essential functions across a wide range of
emergencies and events.3 As such, COOP planning
helps an organization function after a disaster,
providing consistency of services to the public and
minimizing the chaos that may follow a disaster. In
addition, this planning serves as a tool in the maintenance of vital institutional records, infrastructure,
and equipment.
A COOP plan typically provides procedures for an
organization to operate for a period of up to 14-30 days
following an incident, working in conjunction with
an organization’s existing emergency operating procedures. This differentiates COOP planning from
emergency operating procedures, which only address
the immediate aftermath of an incident, like evacuation, shelter-in-place, active shooter, and bomb threat
procedures. A COOP plan bridges the gap between
the immediate response to an event and the point at
which an organization can resume normal functioning. It references emergency operating procedures but
17
focuses on identifying the resources and staff needed
to continue its essential functions. Finally, although
COOP plans differ among organizations, because they
should be tailored to an organization’s specific needs,
there are key elements that should be addressed in
any COOP plan. These elements include planning
assumptions and considerations, essential functions
and personnel, orders of succession, vital records, systems and equipment, alternate facilities, communications, tests, training, and exercises.3
responsibilities.”‡ The directive designates the
Secretary of Homeland Security “as the President’s lead
agent for coordinating overall continuity operations and
activities of executive departments and agencies.”6
However, while the Directive states that the Secretary
“shall coordinate the development and implementation
of continuity policy for executive departments and
agencies,” it is not clear whether the Secretary or
another government official may reprimand executive
branch agencies who have failed to develop and implement the continuity policy.§
LEGAL FRAMEWORK OF COOP PLANNING
Federal
Federal agencies have been required to develop
continuity plans for many years.4* President George
W. Bush recently updated these requirements in
the National Security Presidential Directive (NSPD)
51, issued in May 2007.5 Pursuant to NSPD 51, each
federal agency head is required to “develop continuity
plans in support of the National Essential Functions
and the continuation of essential functions under all
conditionsӠ; plan, program, and budget for continuity
capabilities; plan, conduct, and support annual tests
and training; and support other continuity requirements, “in accordance with the nature and characteristics of the agency’s national security roles and
*The Executive Order, which appears to remain in force with respect to
executive branch departments and agencies, requires agencies to have
capabilities to meet essential defense and civilian needs in the event of
a national security emergency. Section 202 of EO 12656 requires the
head of each federal department and agency to “ensure the continuity
of essential functions in any national security emergency by providing
for succession to office and emergency delegation of authority in accordance with applicable law; safekeeping of essential resources, facilities,
and records; and establishment of emergency operating capabilities.”
Other directives and legislation include the following: The National
Security Act of 1947, July 26, 1947, as amended; EO 12656, Assignment
of Emergency Preparedness Responsibilities, November 18, 1988, as
amended; EO 12472, Assignment of National Security and Emergency
Preparedness Telecommunications Functions, April 3, 1984; EO 12148,
Federal Emergency Management, July 20, 1979, as amended;
Presidential Decision Directive (PDD) 67, Enduring Constitutional
Government and Continuity of Government Operations, October 21,
1998; PDD 62, Protection Against Unconventional Threats to the
Homeland and Americans Overseas, May 22, 1998; PDD 63, Critical
Infrastructure Protection (CIP), May 22, 1998; FPC 60, Continuity of
the Executive Branch of the Federal Government at the Headquarters
Level During National Security Emergencies, November 20,1990; 41
Code of Federal Regulations (CFR) 101-2, Occupant Emergency
Program, revised as of July 1, 1998; 36 Code of Federal Regulations
(CFR) 1236, Management of Vital Records, revised as of July 1, 1998;
FPC 65 Authorities and References (July 26, 1999).

Section 19(b) of Ref. 5.
18
States
Although federal continuity directives are purely
guidance for state, local, territorial and tribal governments, states may create mandatory continuity planning laws or regulations on their own. For example, in
Maryland, the Maryland Emergency Management
Agency (MEMA) Act provides that the “Governor
may issue orders, rules, and regulations necessary or
desirable to . . . prepare and revise, as necessary, a
comprehensive plan and program for the emergency
management operations of this State; integrate the
plan and program of this State with the emergency
management operations plans of the federal government and other states; and coordinate the preparation
of plans and programs for emergency management
operations by the political subdivisions.”7 Thus, if the
Governor deems it necessary or desirable, he may
order state agencies to prepare COOP plans. Further,
in recent years, Maryland has made it mandatory for
various types of human service facilities to prepare
COOP plans through specific statutes.8
Many states have laws similar to Maryland’s, but
state requirements vary across the country. Virginia
has made COOP planning mandatory for executive
branch agencies and requires that plans are updated
and submitted to the Virginia Department of
Emergency Management by April 1st of each year.9
Florida has required agency heads to take responsibility for COOP planning for their agencies and promulgated guidance for them through its Division of

Section 7 of Ref. 5.
Section 6 of Ref. 5.
§
Journal of Emergency Management
Vol. 6, No. 5, September/October 2008
Emergency Management.10 Because state requirements vary, it is important to research a jurisdiction’s
specific requirements and guidance before embarking
on a COOP planning process. Knowing a specific
jurisdiction’s laws and regulations before beginning
planning will not only help to determine whether an
agency is required to have a COOP plan but also
determine the governance structure for COOP planning in the state.
A survey of old and new legislation will reveal
whether COOP requirements and guidelines in a state
emanate from the Governor, the Adjutant General,
or another state office. For example, a state may
have recently passed legislation in response to the
threat of pandemic flu, following the federal guidelines set forth in the Model State Emergency
Health Powers Act (MSEHPA).11 In Maryland, the
Catastrophic Health Emergencies Act, passed in
response to the MSEHPA, grants the Secretary the
power to “require healthcare facilities to develop . . .
contingency plans” addressing stockpiling of supplies,
staff training, “treatment and decontamination
protocols,” coordination of care with other facilities,
and anything else the Secretary deems necessary to
“assist in the early detection and treatment of an
individual exposed to a deadly agent.”12 As discussed
previously, in reference to the federal government,
laws regarding continuity planning may have been in
place for many years, so it is prudent to conduct a
thorough search of and old and new legislation, regulations, and orders.
employees.13** According to case law, government negligence is hard to prove unless the government has
created an expectation of service.14†† Moreover, the
government action that is considered discretionary is
often completely immune to suits.13‡‡ Although the definition of “discretionary functions” has been the source
of much litigation, it has been accepted that it protects
the government from suits based on high-level policy
decisions by government actors, and it may be so
expansive as to create immunity from suit based on
regulatory actions of agencies.15 However, as COOP
planning becomes considered an integral part of many
government agencies’ missions, failure to provide a
service that is normally provided, because of a lack of
a COOP plan, may be considered negligence on the
part of the government agency. Although there are not
yet many cases addressing COOP planning liability
specifically, as described later, the issues surrounding
COOP planning will likely be resolved within the basic
legal framework of government negligence.
The threat of liability is a concern for many emergency planners. To assess this threat, planners should
consider the applicable statutes and case law of their
jurisdiction, as discussed earlier. However, planners
must also consider the appropriate standard of care
that must be exercised throughout the COOP planning
process, despite one’s jurisdiction. In the context of
COOP planning, the standard of care is driven by
federal directives and guidelines. Although these directives and guidelines are not mandatory for state and
local agencies, they serve as the benchmark for appropriate standards of care for all public sector planning
LEGAL ISSUES: STANDARD OF CARE
One reason why it is vital to understand the
legal framework of COOP planning is that a failure
to follow this framework may contribute to potential
liability. Although state and local agencies enjoy certain protections through the doctrine of sovereign
immunity,¶ federal and state tort claims acts carve
out areas in which these agencies may be held
liable for, among other things, negligence of their

Alexander Hamilton described sovereign immunity in The Federalist
No. 81 when he wrote, “It is inherent in the nature of sovereignty, not
to be amenable to the suit of an individual without its consent,” June 28,
1788.
Journal of Emergency Management
Vol. 6, No. 5, September/October 2008
**The Federal Tort Claims Act (FTCA) provides a small exception to its
immunity to suits by stating that “when the federal government may
be sued for injury or loss of property, or personal injury or death caused
by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment,
under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place
where the act or omission occurred.” 28 U.S.C. S 1346(b)(1). Most states
have enacted similar laws that limit state sovereign immunity.
††
Restatement (Second) of Torts §323 (1965) (one who undertakes to
render services to another may in some circumstances be held liable for
doing so in a negligent fashion).
‡‡
28 USCA §2680 (a), that creates an exception from liability for, “[a]ny
claim based . . . upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal
agency or an employee of the Government, whether or not the discretion involved be abused.”
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efforts.§§ In light of this legal framework and the legal
concerns many planners face, we will address some of
the liability issues that may arise during the COOP
process: specifically, meeting standards of care in having, developing, and testing a COOP plan.
nance may also be the source of negligence or other
types of claims. Thus, in the future, failures to continue
to provide service that result in harm to the public
may form the basis of a suit in negligence pointing to
the inadequacy of an agency’s COOP plan.
MEETING THE STANDARD OF CARE: HAVING A COOP PLAN
MEETING THE STANDARD OF CARE:
The public impression of the need for emergency
planning in the public sector has been changing, based
in part on recent tragedies that highlighted a lack of
preparedness resulting in harm to many, and particularly to vulnerable populations. Following Hurricanes
Katrina and Rita in the US Gulf Coast, several suits
were filed against hospitals and medical care facilities
whose failures to continue care for or evacuate their
customers resulted in injury or, in some cases, death.
One such suit revolved around a failure to continue
service during an electrical outage, causing the death of
a patient reliant on a ventilator.16 A COOP plan may
have allowed the care givers to ensure that their
patients continued to receive services that they needed,
whether through arranging for a back-up power source,
use of an alternate site, or temporary devolution of their
care responsibilities to another organization.
Although these suits were not ultimately successful in establishing liability, portions of the courts’ opinions in the cases indicate that the courts will begin to
carve out some legal territory for such claims in the
future.16(p228)¶ ¶ One commentator wrote that, though
the facts may not have been favorable to a finding of
liability in past cases, it appears from the holdings in
recent cases that “there is considerable likelihood
that a failure to evacuate may, in some cases, be considered malpractice if the decision is based in part on
an actual assessment of a patient’s individual medical condition.”¶ ¶ If true, this may be a harbinger that
failures to continue to provide service, because of a
lack of COOP planning, training, testing and mainte-
§§
Both the Federal Emergency Management Agency (FEMA) and the
Department of Homeland Security (DHS) sponsor free programs for
state and local government emergency planners on how to write COOP
plans according to federal standards. One such program, Preparing the
States, Implementing Continuity of Operations Planning, is administered by the authors’ employer, the University of Maryland Center for
Health and Homeland Security.
¶¶
Section 7, Elements of a Viable COOP Capability.
20
DEVELOPING A COOP PLAN
Federal directives provide guidelines for COOP
planning, outlining topics that must be covered by a
COOP plan, standards for training personnel to use
the plan, and for testing and maintaining a plan.
Federal Preparedness Circular (FPC) 65 states that a
viable COOP plan should:

“delineate essential functions and activities;

outline a decision process for determining
appropriate actions in implementing
COOP plans and procedures;

establish a roster of fully equipped and
trained emergency personnel with the
authority to perform essential functions
and activities;

include procedures for employee advisories,
alerts, and COOP plan activation, with
instructions for relocation to predesignated facilities, with and without warning,
during duty and nonduty hours;

provide for personnel accountability
throughout the duration of the emergency;

provide for attaining operational capability
within 12 hours; and

establish reliable processes and procedures
to acquire resources necessary to continue
essential functions and sustain operations
for up to 30 days.”¶ ¶
However, FPC 65, like most federal circulars, is
a brief document that does not provide great detail
Journal of Emergency Management
Vol. 6, No. 5, September/October 2008
regarding the fulfilling of these main components.3
As such, organizations aiming to comply with federal
guidelines still have a fair amount of latitude in developing the contents of their COOP plan. Given this latitude, questions of “how” and “how much” often arise
while planning. For example, federal guidance states
that, an organization’s COOP plan should provide for
“alert and notification” of its personnel.3 The way that
alert and notification should take place is not specified. Must an agency purchase new public announcement system, satellite phones or text alert software in
order to meet the standard? It is not always clear.
In a court of law, the federal guidelines would be
considered in determining whether an organization
has fulfilled its obligations to citizens through its
emergency planning. In addition, financial restrictions, as well as whether an organization should have
known to plan for a particular disaster affecting its
capabilities would be considered. The types of preparations that other agencies in its state or locality had
made as well as other agencies of its type may come
into the analysis as comparables. Overall, the possible
success of a suit against a government agency based
on not meeting the standards of care and best practices
of other agencies would depend on a strong showing
of inadequacy of emergency preparations accounting
for many variables. The lack of precedent for similar
cases and the discretion implied by broad federal
guidelines would likely make it difficult for a plaintiff
to prove an agency’s liability for negligence at this
time.
MEETING THE STANDARD OF CARE: TESTING THE COOP PLAN
Once an institution has written a COOP plan, it
must be tested to ensure that it is a viable plan and
that the institution’s decision makers and personnel
have had a chance to exercise, or at least discuss, their
specific duties during COOP activation. COOP plans
are typically tested through a variety of exercises,
including tabletops and full-scale exercises. While testing its plan, an agency must take care to exercise its
plan responsibly, especially if a full-scale exercise is
being use …
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