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Continuity of Operations planning: Meeting the standard of care

Robin J. Clark, JD, Megan H. Timmins, JD


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.


Continuity of Operations, legal, liability, standard of care, Federal Preparedness Circular 65

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