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Ebola Legal Preparedness — Q&A with Network Experts

posted on Wed, Aug 20 2014 10:59 am by The Network for Public Health Law

On August 12, over 1,200 registrants participated in the Ebola and the Law webinar, co-sponsored by the CDC’s Public Health Law Program, the American Health Lawyers Association and the Network. On the webinar, James G. Hodge, Jr., J.D., LL.M., Director of the Network’s Western Region Office and Associate Dean and Professor at the Sandra Day O’Connor College of Law, Arizona State University (ASU), along with Brian Bird, M.S.P.H., D.V.D., Ph.D., Veterinary Medical Officer with the CDC's National Center for Emerging and Zoonotic Infectious Diseases, Jane Jordan, J.D., Deputy General Counsel at Emory University Hospital, and moderator Matthew Penn, JD, MLIS, Director of the CDC's Public Health Law Program — Office for State, Tribal, Local and Territorial Support, discussed the Ebola outbreak in West Africa and how to be legally prepared for its potential introduction in the U.S. While the speakers addressed numerous questions during the session, other significant questions remain, especially related to U.S. law and policy concerning the outbreak.   

In the following Q&A, James and his Western Region office colleagues, Dan Orenstein, J.D., Deputy Director, and Kim Weidenaar, J.D., Deputy Director, with assistance from Asha Agrawal, legal researcher and J.D. student at ASU, respond to select questions not addressed on the webinar.

Q: How do federal, state, tribal, and local legal authorities intersect regarding isolation and quarantine of travelers at points of entry such as airports?

Dan Orenstein: Federal, state, tribal and local officials have separate but overlapping authorities to issue quarantine and isolation orders to control the spread of infectious diseases at points of entry. Quarantine refers to the separation of a person or group suspected or known to have been exposed to a communicable disease to prevent the spread of infection, while isolation refers to the separation of persons known or suspected to be infected with a communicable disease. States and tribal authorities have significant isolation and quarantine authority pursuant to their inherent “police powers” to protect public health, safety, and general welfare within their borders. All states have isolation and quarantine authority although applicable laws and processes vary. States may also delegate authority to local officials to varying degrees.

Conversely, federal isolation and quarantine authority is limited to specific circumstances. The Centers for Disease Control and Prevention (CDC) is empowered under the federal Public Health Service Act to isolate and quarantine individuals and groups traveling into the U.S. or between states. This authority applies to a specific list of diseases as specified by executive order, including viral hemorrhagic fevers such as Ebola. While interjurisdictional cooperation is the norm in enforcing isolation and quarantine at points of entry, federal authority may preempt conflicting state or local efforts.   

Q: Are there state and local laws in place that would allow public health officials to restrict domestic travel in case local exposures reoccur?

James Hodge: Traditionally, health officials may restrict the movement of an individual or group of individuals when necessary to limit the transmission of a communicable disease. State laws in Hawaii and South Carolina authorize the “restriction of movement or confinement” to physically separate infected individuals from the healthy population. Constitutionally-grounded procedural protections are in place to regulate the use of such restrictions. In general, such restrictions may only be used when they represent the “least restrictive” means of protecting the public’s health and subject to varied processes. Hawaii’s Department of Health, for example, must obtain a written court order authorizing quarantine. The affected person must be notified of the order and may contest it. However, quarantine may still be implemented prior to the issuance of the order if the delay in securing the court order poses an immediate threat to the public’s health. Before restrictions are imposed in South Carolina, the health commissioner or trial court must issue an order authorizing quarantine measures and serve those affected with notice within 24 hours of its issuance. 

Q: How do quarantine procedures work if the exposed individual does not cooperate?

Kim Weidenaar: While public health officials typically attempt to gain the voluntary consent of affected persons as part of implementing a quarantine or isolation order, they can require adherence to such orders when necessary. For example, in Massachusetts, if an individual refuses voluntary quarantine, a local health board or director usually issues the order and seeks assistance of local law enforcement to serve the individual and explain the order’s requirements. Quarantine orders should last only so long as the incubation period of the disease and require the individual’s confinement to the least restrictive setting that is feasible, such as one’s residence. In rare cases when an individual continues to refuse to follow the order, the local health board may seek a court order to quarantine the individual generally at another, more restricted location.

Q: What screening measures may be implemented for travelers coming or returning to the U.S. from affected areas?  

Dan Orenstein: Government and civil aviation authorities in affected countries in West Africa have already begun passenger screening at international airports under their jurisdiction. Airports in Liberia, Sierra Leone, and Guinea are screening all outbound passengers for Ebola symptoms, and airports in Nigeria are screening passengers arriving from affected areas by checking body temperatures and using compulsory blood tests for those with fever. Other countries are likely to implement similar measures.

The U.S. has not yet authorized these types of screening, but other protocols are in place. Airlines have legal authority to deny boarding to sick passengers who pose a direct threat based on specific criteria and guidance from CDC (and others) that consider transmissibility of the illness in the aircraft cabin environment and potential health impact. Persons known or suspected to have a communicable disease that is a public health threat may also be placed on CDC’s “Do Not Board” list or issued a “Border Lookout,” preventing them from entering the U.S. Additionally, airplane captains are required to report deaths onboard or ill travelers meeting specific criteria to CDC before arriving at a U.S. airport. More robust and systematic screening programs may also be implemented if necessary. Federal control over U.S. borders can also support mandatory screening at points of entry for conditions like Ebola.

Q: What are the rights of public health or hospital workers to refuse to care for/help with someone suspected of having Ebola?  

Kim Weidenaar: As of August 11, 2014 over 180 health care workers (HCWs) contracted Ebola while caring for sick patients in West Africa. In the U.S., HCWs caring for two American patients at Emory University in Atlanta volunteered for the assignment, and other hospitals around the country that are preparing for possible Ebola outbreaks claim they will also only use volunteers. However, if an Ebola outbreak occurred, hospitals and other health providers may require employed HCWs to provide care so long as employers also make available protective equipment and other practices to prevent exposure and infection.

HCWs that refuse to care for Ebola patients may face dismissal and other sanctions from their employer, as well as licensing sanctions and ethical reviews. They might also face legal liability if they owed a duty to care for a pre-existing patient. When a patient arrives in an emergency room requesting care, the Emergency Medical Treatment & Labor Act (EMTALA) requires the hospital to examine the patient and if an emergency condition exists to provide stabilizing care. While that hospital may not require a HCW to be put directly in harm’s way, it can require its HCWs to provide care where universal precautions eliminate potential risks of infection. Additionally, while many off-duty HCWs are not legally required to treat patients (absent some other existing relationship or duty), on-call physicians have a legal and ethical duty to respond and treat emergency patients. Finally, HCWs may be contractually required to provide care when requested by their employer, or face dismissal or other sanctions.

For more on Ebola Legal Preparedness, view the Network’s Primer.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not necessarily represent the views of, and should not be attributed to, RWJF.

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