"Legal Separation in the State of Virginia"
Quarantine and Isolation: Virginia‟s Approach Virginia Department of Health January, 2005 VEB Dec 2004 Isolation and Quarantine Part 1: Purpose and History Communicable Disease Responses No restrictions • Number of cases/exposed • Exposure category • Known Targeted population- • Unknown (unlinked) specific restrictions • Generations of transmission • Morbidity and mortality • Ease/rapidity of spread Community-wide measures to increase social distance • Movement in/out of community • Resources for response • Risk of public panic Compulsory activity restrictions •Curfews on activities •Closing of mass transit •Closing access routes •Closing borders Effect of Increasing Social Distance Exponentiation Suppression Ro = 2.0 Ro = 0.67 Progression = 1:2:4:8:16 Progression = 1:2:4:3:2 Need for Public Health Legal Tools • Global spread of highly contagious diseases • New diseases or disease strains • Bioterrorism preparedness • Zoonotic diseases Reassessment of traditional public health legal authorities Isolation and Quarantine • Isolation: separation (for period of communicability) of known infected persons to prevent transmission of an infectious agent • Quarantine: restriction of activities during the incubation period of healthy persons exposed to a communicable disease to prevent transmission if infection occurs Isolation and Quarantine Not “all or none” • Complete: full-time confinement or restriction of movement • Modified: a selective, partial limitation of freedom of movement or actions • Protective (isolation): separation of a susceptible individual from an environment where transmission is occurring to prevent acquiring a communicable disease Isolation and Quarantine History Long history of use of isolation/quarantine: • Leprosy – Old Testament: Isolation for persons with leprosy • Emperor Justinian, Rome – 532 AD: Persons arriving into Constantinople from “contaminated localities” placed in special housing • Plague – 14th-15th centuries: Venice imposed harbor quarantine (It. quaranta - 40-day period of detention for arriving ships) US Isolation and Quarantine • 1647: Mass. Bay Colony restricted ships from West Indies due to plague • 1660‟s: First colonial quarantine laws • 1796: First federal quarantine law (repealed) • 1880‟s: NYC inspection of ships, passengers and cargo – Quarantinable diseases: cholera, yellow fever, plague, leprosy, smallpox – Staten Island as isolation hospital/quarantine station “Typhoid Mary” • 1907: Mary Mallon (“Typhoid Mary”) involuntarily admitted to NYC Detention Hospital – Held for three years due to non-compliance – Released on condition that not work with food – Took job as a hospital cook => infected dozens – Re-admitted involuntarily for isolation (life- long) Modern Quarantine and Isolation Lessons from SARS • Toronto: quarantine/isolation for 2003 SARS outbreak control • Vast majority complied voluntarily: – 29,000 people isolated/quarantined (HD staff, private physicians, or employers) – Only 27 legal orders needed • High levels of compliance with voluntary measures – Extensive community education efforts – Clear messages Quarantine‟s Dichotomy • Quarantine has negative connotations – Black Death, Yellow fever, Pandemic Flu – Detention camps equate disease with crime – Stigmatizes victims (e.g., foreign born) – Historical abuses of power • Quarantine works – Effective tool to prevent spread of contagion – As good or better than other tools in the box Isolation and Quarantine Legal Basis Indications for Isolation/Quarantine • Dangerous and contagious disease • Exposed “well” can be separated from “ill” • Resources available to support interventions – Ensure essential needs – Monitor health status – Provide medical care – Implement isolation of those who become ill • Continue only long enough to ensure not contagious (e.g., quarantine = incubation period) Civil Commitment • Government‟s restriction of a person not guilty of a crime • Must balance: – Community‟s right to be protected from harm by individuals Against – Constitutionally protected freedoms of individuals Public good Civil liberties • Authority resides at several levels of government Background: Statute (Law) • Legislative act declaring, commanding, or prohibiting an act • Fed laws: Congress enacts statutes • VA State laws: Require passage by both houses and approval by the Governor Background: Regulation • Rule or order to clarify and facilitate enforcement of statute • Based on delegation of authority from legislative branch • Issued under the executive branch (President for Fed, Governor for State) • Has full force of law, but subordinate to statutory law • Punishments are usually civil - can be appealed to judges U.S. Federal I+Q Law “Enumerated powers” - authority from Commerce Clause: Congress shall have the power … “To regulate Commerce with foreign Nations, and among the several States… .” Art I, Section 8 Federal I+Q Regulations • 42 US Code, Sec. 264 – HHS Secretary responsible for preventing introduction/spread of communicable diseases to US and between states – For Presidentially declared diseases (2003): • Cholera • Diphtheria • Infectious TB • Plague • Smallpox • Yellow fever • Viral hemorrhagic fevers • SARS Federal Role • May apprehend, detain or conditionally release individuals • Used only if threat to public health and refusal to cooperate voluntarily • Violation of federal quarantine a criminal misdemeanor (fine +/or imprisonment) • Federal gov‟t last used involuntary quarantine in 1963 (smallpox case) • CDC uses Public Health Service Act to monitor/temporarily detain individuals suspected of disease State I+Q Law • Federal authority concurrent w/state‟s • States have “reserved powers” (10th Amendment) - includes “Police powers”: – “Enact laws…that safeguard the health, welfare, and morals of [their] citizens” – Authority to regulate private interests for the public good Fed-State Responsibility • States generally responsible for public health matters within their borders, including: – Restrict a person‟s personal liberty – Restrict a person‟s ability to work – Seize property without compensation • HHS Secretary may: – Accept state and local assistance in the enforcement of federal quarantine regulations – Assist states and local officials in the control of communicable diseases • Federal, state, and local health authorities may simultaneously have separate but concurrent legal quarantine power (e.g., arriving aircraft at a city airport) Isolation and Quarantine Part 2: Virginia Laws and Regulations Communicable Disease of Public Health Significance Control of Communicable Disease • LHD performs public health interventions for diseases such as – HIV infection – Infectious syphilis – Active TB disease …and many other diseases • LHD may recommend appropriate public health control measures (e.g., quarantine, isolation, immunization, decontamination or tx) Noncompliance… • When a person voluntarily complies w/LHD recommendations for control of communicable disease => no additional intervention is necessary • Laws/regulations designed to address situations where voluntary compliance fails State Isolation and Quarantine Law Most State‟s laws for I+Q have typically been: • Overly broad • Lacking in clear standards and authority • Disease-specific (e.g., TB) • Lacking in adequate due process measures • Questionable in applicability to groups Example: „Old‟ Virginia Code § 32.1-43. Authority of Commissioner to require quarantine, etc. “The Commissioner shall have authority to require quarantine, vaccination or treatment of any individual when he determines any such measure to be necessary to control the spread of any disease of public health importance.” However… • Although extensive provisions in isolation statutes – no clear standards for quarantine • Applies to “individuals” - no clear method for quarantine of: • Groups of people • Geographic areas • Public or private facilities • Liability issues not addressed • Due Process - no notice, hearing, counsel, appeal provisions Result = ambiguity and susceptibility to legal challenge Virginia Approach Since the middle of an epidemic is not the best time to be rewriting laws… ...need proactive planning for interdisciplinary legal preparedness: • April 2004, Virginia enacts HB 1483 – Amends Chapter 2 of Title 32.1 of the Code of Virginia to address Quarantine and Isolation • Nov 2004: Board of Health promulgates emergency regulations Key Players • Board of Health • State Health Commissioner • District Health Director • Public Health Nurses • VDH Office of Epidemiology • VA District Attorney • Law Enforcement and many others… Issues Addressed • Notice • Initial detention, post deprivation rights • Right to counsel • Clear and convincing evidence • Least restrictive means: tied to particular circumstances, have scientific basis • Application to individuals, groups or geographic areas (“Affected Areas”) • Anonymity of patients and practitioners New/Revised Concepts • Affected area • Communicable Disease of Public Health Threat – Distinct from Comm Disease of Public Health Signif • Voluntary vs Involuntary • Essential needs • Exceptional circumstances • Individual: a person or companion animal • Least restrictive • Commissioner – may (or may not) delegate authority to designee Illness/Disease Illness of Public Health Importance Communicable Disease of Public Health Significance Communicable Disease of Public Health Threat Regulations • When normal measures insufficient, the local health director may use Article 3.01 (communicable diseases of public health significance), Or, • Provide sufficient information to enable the commissioner to prepare an order or orders of isolation and/or quarantine under Article 3.02 (communicable diseases of public health threat) Virginia Isolation and Quarantine Flow Diagram Isolation for Communicable Diseases of Public Health Significance VAC Article 3.01 Communicable Disease of Public Health Significance • Illness caused by an infectious agent that may be transmitted from one individual to another • Includes, but is not limited to, infections caused by HIV, blood-borne pathogens, and TB ?Non-Compliant? Health Director can: • Request medical evaluation • Order counseling/education • Order treatment May occur individually, or together If health director has evidence that a person is placing others at risk (e.g., a documented history of non-adherence) then…. Non-Compliance Health director works with: • Office of Epi - petitions commissioner for Emergency Detention Order • Local law enforcement officials (police, sheriff, etc.) - to detain case • Office of Epi and AG – (within 48 hrs of detention) petitions for Court Ordered Isolation Emergency Detention • Law enforcement conducts person to court, or to their home or the least restrictive willing facility (but not a jail/prison) for temporary detention until the court can review the case • Person must: – Be notified of the cause for the isolation; and, – Have access to legal counsel Order of Isolation • Court may issue order for isolation in the person's home, another residence, an institution or other place (including a detention facility, if necessary) if it finds: – The person is infected with a communicable disease of public health significance – The person is engaging in at-risk behavior with an intentional disregard for the health of others; and, – There is no other reasonable way to reduce the risk to the public • Closed (“locked”) hearing Details • Duration: 120 days (or less if the person no longer a threat to the health of others) • Appeals: within 30 days - however, during the appeal process the person is still bound by the order • Continuation: re-petition for new order (≤120 d) if the original reasons for the order still exist LHD Responsibilities • Deliver appropriate medical records to the Office of Epidemiology for transfer to the AG's office. Records should include: – Copy of medical eval (detailed diagnosis of disease) – Copies of x-ray reports and lab reports (e.g., smears, culture results) – Documentation of efforts to counsel patient on disease, tx and expected behaviors for compliance – Documentation of patient non-adherence to recommendations – Basis of determination of danger to public health – Copies of formal requests issued by the health director LHD Responsibilities (cont.) • Contact appropriate local law enforcement (police, sheriff, etc.) to plan order implementation • Identify “least restrictive willing facility" (not a jail or correctional facility) where person may be confined until court hearing • Testify in trial, if required Examples/Resources http://vdhweb/epi/tb/index.htm (internal) VA TB Control Laws Guidebook http://www.vdh.virginia.gov/epi/tb/guidebook.html VA TB Control Laws Guidebook Includes details on: • Issuing an Examination Request • Issuing Counseling Order • Issuing Treatment Order • Issuing Emergency Detention Order • Court-Ordered Isolation Website (http://vdhweb/epi/tb/guidebook.html) contains templates for LHD use Isolation and Quarantine Part 3: Communicable Diseases of Public Health Threat Issues and Challenges Isolation and Quarantine for Communicable Diseases of Public Health Threat 12 VAC 5-90-105. Isolation. 12 VAC 5-90-110. Quarantine. Background Concepts Communicable Disease of Public Health Threat – Communicable disease of public health significance that is readily transmitted and creates a risk of death or significant injury (not including TB or HIV) – E.g., smallpox, pneumonic plague, viral hemorrhagic fever Background Concepts (cont.) Exceptional Circumstances – Factors (as determined by commissioner) that affect ability to effectively control a communicable disease – Includes: • Organism (virulence, routes of transmission, minimum infectious dose, rapidity of spread) • Potential for extensive disease spread • Existence and availability of effective treatment • Known or suspected risk factors • Potential magnitude of the effect on welfare of the public • Extent of voluntary compliance • May take into account the experience or results of investigations in Virginia, other states or countries Isolation and Quarantine • Commissioner (only) may invoke Article 3.02 to isolate or quarantine an individual(s) if: 1. They are known/suspected to have been infected with or exposed to a communicable disease of public health threat, and 2. Exceptional circumstances make Article 3.01 of the Code of Virginia insufficient, or the individual or individuals have failed or refused to comply voluntarily with control measures, and 3. Isolation/quarantine is the necessary means to contain the threat • The commissioner may isolate or quarantine people within an affected area if, in addition, the Governor has declared a state of emergency for that part of the Commonwealth Additional Requirements 1. Least restrictive environment necessary to contain threat 2. Quarantined persons confined separately from isolated persons, as practicable 3. If quarantined person symptomatic, remove from quarantine and place in isolation 4. Regular monitoring of the health status 5. Immediate release if person poses no risk of transmitting 6. Site must be safely and hygienically maintained with adequate food, clothing, health care, and other essential needs Home Quarantine/Isolation Before implementing, consider: – Availability of caregiver to assist patient – Access to telephone, electricity, heat, water – Access to groceries, meds, and other needs – Family members at high-risk or who cannot comply w/infection control methods (e.g., children) – If multi-family dwelling: separate air handling system (if appropriate) – Ideally, separate bedroom and bathroom for the patient Documentation for Orders Prepare a record of findings, including: – Identify the communicable disease of public health threat – Reasons why exceptional circumstances apply and isolation/quarantine is necessary – Sufficient information to provide reasonable notice to persons – Means by which the quarantine is to be implemented – Geographic parameters, if involving an affected area – Duration of the order – Directions for compliance – Opportunities for person(s) to notify employers, family, attorneys – The penalty that may be imposed for noncompliance – Right to seek judicial review of the order • Sufficient information must be maintained by LHD to enable follow-up of individuals for health status evaluation and compliance with the order Court Review of Order(s) • Following issuance of order, commissioner must file a petition seeking ex parte court review and confirmation of the order • Filed with the circuit court for the city or county in which the person or persons resides • In the case of an affected area: filed in the circuit court of the affected jurisdiction or jurisdictions Court Review of Order(s) Petition includes: 1. Copy of the order or equivalent 2. Summary of the findings for the order, including: • Identity of person(s) • Basis for the order • Specific communicable disease • Site of the isolation/quarantine • Date and time when commences • Any conditions of the order The commissioner may file some or all of any petition under seal Court Findings • The court shall grant the petition to extend the order upon finding: – Probable cause that isolation/quarantine was the necessary means to contain the disease – Implementation is in the least restrictive environment necessary • After reviewing any information filed under seal, the court shall reseal relevant materials to the extent necessary to protect public health and safety Appeals • A person subject to an order may file a petition to appeal • A hearing on the appeal held within 48 hrs • Person must prove that they do not need to be isolated/quarantined • Filing of appeal does not stay the order • Court may consolidate multiple appeals into single proceeding • The court may: 1. Vacate 2. Modify, or 3. Confirm the order Hearing Procedures • Person has a right to appear at the hearing • How that person appears will depend upon individual case – May need to use telephone and ITV video • If the person appears by electronic means, steps to ensure the person has immediate ability to consult with counsel if counsel is not with the person • Full infection control measures will be followed by all participants LHD Responsibilities • Assesses the situation and gathers info for record of findings – shares w/Office of Epi for preparation of orders • Identifies a place of isolation/quarantine and least restrictive means that effectively protects unexposed and susceptible individuals • Ensures delivery of order(s) by an appropriate party, in person to the extent practicable – The commissioner can decide if print, radio, television, internet, and/or other available means may be used LHD Responsibilities (cont.) • Ensures that law-enforcement personnel responsible for enforcing orders are informed of measures to take to protect themselves • Monitors the health of those under an order (e.g., regular telephone calls, visits, self-reports, report of caregivers or healthcare providers, etc.) • With local emergency management resources, ensures individual essential needs are met to the extent practicable Enforcement • If probable cause that an individual may fail to comply with order, the commissioner may issue an emergency detention order – Person taken immediately into custody by law- enforcement agencies – Detained for the duration of the order or until the commissioner determines that the risk of noncompliance is no longer present • Law-enforcement agencies can detain or arrest anyone who may be in violation of an order – Hold in the least restrictive environment that can provide any required health care, services Penalties • Non-compliance with an order of isolation or quarantine: – Class 1 misdemeanor (confinement for up to 12 months and/or $2,500 fine) – Civil penalties ($25,000 maximum per offence) Release An individual under an order of isolation or quarantine shall be released immediately if: • The commissioner determines that an individual no longer poses a threat to the public health • The order has expired, or • The order has been vacated by the court Affected Areas • Specific to Diseases of Public Health Threat AND state of emergency declared • Same procedures/penalties…with some minor differences (e.g., notification) Note: Immunity from Liability Any person who, in good faith and in the performance of his duties, acts in compliance with the law and regulations shall not be liable for any civil damages for any act or omission (unless the result of gross negligence or willful misconduct) Use of Public or Private Property If Governor declares state of emergency: • State Health Commissioner may require the use of any public or private property, building or facility to implement any order of quarantine or isolation • Owners or operators of any property, building or facility so commandeered are entitled to compensation Quarantine and Isolation in Virginia Issues and Challenges Implementation of Community Containment • Understanding public health roles and legal authority at local, state, and federal levels • Coordination and cooperation between public and private healthcare sectors: – Elected officials – Media – Emergency responders – Public safety – Transportation authorities – Law enforcement – Legal community (judges, lawyers) – Employers/employees – Public health – Healthcare providers Current Unresolved Legal Issues • Compensation for lost wages of persons isolated and quarantined • Compensation for lost business • Jurisdiction over federal properties • Multi-jurisdictional areas, e.g. Northern Virginia Implementation Issues • Develop incident command structure • Communication between hospitals and PH re: AMA pts • Identifying community-based facilities • Providing for essential needs for people who have been isolated or quarantined • Quarantined should be among first to receive all available disease prevention interventions • Monitoring large numbers of people - ? electronic methods • Providing legal counsel for large numbers of people in a short time-frame • Mental health support Implementation Issues (cont.) Pre-design materials. May include: • Letters requesting voluntary isolation or quarantine • Involuntary isolation or quarantine orders (multiple situations) • Petitions for court review of orders • Draft court orders Implementation Issues (cont.) • Support documents, including: – Health Director declaration of support – Documentation of initial notification – Confirmation of diagnosis – Fact sheets – Notice of process to appeal (req by VA law) – Draft court summons template • Home isolation assessment • Case record system • Order modification (e.g., from quarantine to isolation) • Termination order Implementation Issues (cont.) • Ensuring public communication and enforcement on a large scale • Each level of PH must effectively connect with respective law enforcement counterparts to assist in carrying out involuntary public health order(s) • Will require good partnerships between local, state, federal and non-governmental (e.g., media, Red Cross) stakeholders Summary • Isolation and quarantine only one aspect of communicable disease control • Voluntary compliance with isolation and quarantine extremely important • Virginia law and regulations updated to address legal and procedural concerns with involuntary isolation and quarantine • Still many issues to work on Resources http://www.phppo.cdc.gov/od/phlp/ References • F.E. Shaw and R.A. Goodman (Public Health Law Program, CDC): Law as the Basis of Public Health Action • A. Murphy (Chief Legal Counsel, Illinois DPH): The Evolving Role Of Public Health Law In Containing Infectious Disease • F.E. Shaw (Public Health Law Program, CDC): Quarantine and Isolation Law in the States • A.K. Manka (Minnesota Assistant Attorney General): Comparison of Health Laws • M. Trippler (Assistant U.S. Attorney): Federal Authority for Isolation and Quarantine • M.G. Moriarity (Civil Court Administrator, Ramsey District Court): Court Procedures under the Minnesota Emergency Health Powers Act • R. Lynfield and K. LeDell (Minnesota Department of Health): Modern Isolation and Quarantine Infection Control Issues • T. Moulton: Quarantine: Law & Collaboration • S. Gravely (Troutman Sanders): Isolation & Quarantine: Proposed Legislative Amendments • J. Moore (VDH DTC): Virginia TB Control Act of 2001: What You Need to Know