Legal Separation in the State of Virginia by ybz13088


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									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
• Resources for response
• Risk of public panic
                                Compulsory activity
                                    •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
 •   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
  – Held for three years due to non-compliance
  – Released on condition that not work with food
  – Took job as a hospital cook => infected
  – Re-admitted involuntarily for isolation (life-
 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
  – 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
             Civil Commitment
• Government‟s restriction of a person not guilty of
  a crime
• Must balance:
  – Community‟s right to be protected from harm by
  – 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
• 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
• 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)
• 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.”
• 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
               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 of Public
 Health Importance

Communicable Disease of
Public Health Significance

        Disease of
       Public Health
• When normal measures insufficient, the local
  health director may use Article 3.01
  (communicable diseases of public health
• 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

      VAC Article 3.01
 Communicable Disease of Public
     Health Significance
• Illness caused by an infectious agent that
  may be transmitted from one individual to
• Includes, but is not limited to, infections
  caused by HIV, blood-borne pathogens,
  and TB
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)
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
         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
• 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
  – 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
• Identify “least restrictive willing facility" (not
  a jail or correctional facility) where person
  may be confined until court hearing
• Testify in trial, if required

http://vdhweb/epi/tb/index.htm (internal)
VA TB Control Laws Guidebook
 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
  – 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
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.,
  – 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
•   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
• A person subject to an order may file a petition to
• A hearing on the appeal held within 48 hrs
• Person must prove that they do not need to be
• 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,
• With local emergency management resources,
  ensures individual essential needs are met to
  the extent practicable
• 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
• 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
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
• Same procedures/penalties…with
  some minor differences (e.g.,
    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
     Issues and Challenges
   Implementation of Community
• 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
           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
•   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
• 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
• 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
• 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
•   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
•   M. Trippler (Assistant U.S. Attorney): Federal Authority for Isolation and
•   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
•   J. Moore (VDH DTC): Virginia TB Control Act of 2001: What You Need to

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