CRS: Ebola Outbreak – Quarantine v. Isolation, Travel Restrictions, Select Legal Issues

— Domani Spero
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On October 25, WaPo reported that the governors of New York Andrew Cuomo and New Jersey Gov. Chris Christie ordered on Friday the imposition of a mandatory 21-day quarantine for medical workers returning from the countries hit hardest by the ebola epidemic. Illinois later in the day imposed similar restrictions. Today, NYT reported that the Obama administration has expressed deep concerns to the governors and is consulting with them to modify their orders to quarantine medical volunteers returning from West Africa.

Ebola CRS report via Secrecy News (pdf):

On August 8th, the World Health Organization declared the outbreak of the Ebola Virus Disease in West Africa a Public Health Emergency of International Concern. The recent arrival in the United States of several health care workers who contracted the disease, combined with the first diagnosis of a case in the U.S. at a hospital in Dallas, has sparked discussion about the appropriate government response. Aside from the various policy considerations at issue, the outbreak has generated several legal questions about the federal government’s authority to restrict specific passengers’ travel and/or contain the outbreak of an infectious disease. These questions include, inter alia, whether the federal government may: (1) restrict which countries U.S. nationals may travel to in the event of a public health crisis; (2) bar the entry into the United States of people who may have been infected by a disease; and (3) impose isolation or quarantine measures in order to control infectious diseases.

Passport restrictions on which countries U.S. citizens may visit can be imposed by the Secretary of State. Pursuant to the Passport Act, the Secretary of State may “grant and issue passports” according to rules designated by the President, and may impose restrictions on the use of passports to travel to countries “where there is imminent danger to the public health or the physical safety of United States travellers” (sic). The Supreme Court has recognized that the authority to “grant and issue” passports includes the power to impose “area restrictions” – limits on travel to specific countries (restrictions must comply with the Due Process Clause of the Constitution). Although passport restrictions are not criminally enforceable, they may prevent travelers from boarding a flight to a restricted area.

Restrictions may also be imposed on who may enter the United States, though the range of applicable restrictions may differ depending upon whether a person seeking entry into the country is a U.S. national. The government enjoys authority under federal immigration law to bar the entry of a foreign national on specific health-related grounds, including when a particular foreign national is determined to have a “communicable disease of public health significance.” More broadly, section 212(f) of the Immigration and Nationality Act authorizes the President, pursuant to proclamation, to direct the denial of entry to any alien or class of aliens whose entry into the country “would be detrimental to the interests of the United States.”

These restrictions do not apply to U.S. citizens, who may enjoy a constitutional right to reenter the country. Nonetheless, certain travel restrictions may impede the ability of any person – regardless of citizenship – from traveling to the United States in a manner that potentially exposes others to a communicable disease. For example, airlines flying to the U.S. are permitted under Department of Transportation regulations to refuse transportation to passengers with infectious diseases who have been determined to pose a “direct threat” to the health and safety of others. In making this determination, airlines may rely on directives from the CDC and other government agencies. Pilots of flights to the United States are also required to report certain illnesses they encounter during flight before arrival into the U.S.

In addition, the Department of Homeland Security and Centers for Disease Control and Prevention (CDC) maintain a public health “Do Not Board” (DNB) list, which contains the names of people who are likely to be contagious with a communicable disease, may not adhere to public health recommendations, and are likely to board an aircraft. Airlines are not permitted to issue a boarding pass to people on the DNB list for flights departing from or arriving into the United States. People placed on the DNB list are also “assigned a public health lookout record,” which will alert Customs and Border Protection officers in the event the person attempts to enter the country through a port of entry. The CDC’s Division of Global Migration and Quarantine (DGMQ) can conduct exit screening at foreign airports to identify travelers with communicable diseases and alert the relevant local authorities.

Finally, both federal and state governments have authority to impose isolation and quarantine measures to help prevent the spread of infectious diseases. While the terms are often used interchangeably, quarantine and isolation are actually two distinct concepts. Quarantine typically refers to separating or restricting the movement of individuals who have been exposed to a contagious disease but are not yet sick. Isolation refers to separating infected individuals from those who are not sick. Historically, the primary authority for quarantine and isolation exists at the state level as an exercise of the state’s police power in accordance with its particular laws and policies.

However, the CDC is also authorized to take measures “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” In order to do so, the implementing regulations “authorize the detention, isolation, quarantine, or conditional release of individuals.” This authority is limited to diseases identified by an Executive Order of the President, a list which currently includes Ebola. Whether an isolation or quarantine order originates with the federal or state government, such orders will presumably be subject to habeas corpus challenges, and must also comport with the Due Process Clause of the Constitution.

View the original CRS Legal Sidebar here (pdf) includes active links.

And that legal challenge may soon be upon us. On October 26, Kaci Hickox, a nurse placed under mandatory quarantine in New Jersey, went on CNN on Sunday and criticized the “knee-jerk reaction by politicians” to Ebola.  According to CNN, Hickox, an epidemiologist who was working to help treat Ebola patients in Sierra Leone, has tested negative twice for Ebola and does not have symptoms.  Norman Siegel, Hickox’s attorney, and a former director of the New York Civil Liberties Union told CNN that he will be filing papers in court for Hickox to have a hearing no later than five days from the start of her confinement. Siegel told CNN that Hickox’s quarantine is based on fear.

Here is the link to the Executive Order 13295 of April 4, 2003 cited above by the CRS brief via:

[T]he following communicable diseases are hereby specified pursuant to section 361(b) of the Public Health Service Act:

(a) Cholera; Diphtheria; infectious Tuberculosis; Plague; Smallpox; Yellow Fever; and Viral Hemorrhagic Fevers (Lassa, Marburg, Ebola, Crimean-Congo, South American, and others not yet isolated or named).

July 31, 2014 Update

“(b) Severe acute respiratory syndromes, which are diseases that are associated with fever and signs and symptoms of pneumonia or other respiratory illness, are capable of being transmitted from person to person, and that either are causing, or have the potential to cause, a pandemic, or, upon infection, are highly likely to cause mortality or serious morbidity if not properly controlled. This subsection does not apply to influenza.”

A side note, the U.S. Ambassador to the United Nations, Samantha Power is currently traveling to the countries in West Africa hardest hit with the ebola outbreak:

 

 

Now, since Ambassador Power is not a medical worker, she probably will not be subjected to the NJ/NY mandatory quarantine when she gets back. However, on October 22, the Centers for Disease Control and Prevention (CDC) announced that public health authorities will begin active post-arrival monitoring of travelers whose travel originates in Liberia, Sierra Leone, or Guinea.  Active post-arrival monitoring, according to the CDC  means that travelers without febrile illness or symptoms consistent with Ebola will be followed up daily by state and local health departments for 21 days from the date of their departure from West Africa. Except that Ambassador Power’s return trip will not be originating from West Africa but from Belgium, the last stop on this West Africa-Europe trip before returning to the U.S.

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Peakniks and Pandemic: Implications for the Foreign Service

Just this week, AP reports that an influential group of physicians has drafted a grimly specific list of recommendations for which patients wouldn’t be treated in a flu pandemic or other disaster. The suggested list was compiled by a task force whose members come from prestigious universities, medical groups, the military and government agencies and included the Department of Homeland Security, the Centers for Disease Control and Prevention and the Department of Health and Human Services.

According to AP: “the task force suggests that hospitals should designate a triage team with the Godlike task of deciding who will and who won’t get lifesaving care. Those out of luck are the people at high risk of death and a slim chance of long-term survival.” The recommendations are specific, and include the following:

  • People older than 85
  • Those with severe trauma, which could include critical injuries from car crashes and shootings.
  • Severely burned patients older than 60
  • Those with severe mental impairment, which could include advanced Alzheimer’s disease.
  • Those with a severe chronic disease, such as advanced heart failure, lung disease or poorly controlled diabetes.

The AP report cited Public health law expert Lawrence Gostin of Georgetown University who called the report an important initiative but also “a political minefield and a legal minefield.” And that these recommendations would probably violate federal laws against age discrimination and disability discrimination, said Gostin, who was not on the task force. If followed to a tee, such rules could exclude care for the poorest, most disadvantaged citizens who suffer disproportionately from chronic disease and disability, he said. While health care rationing will be necessary in a mass disaster, “there are some real ethical concerns here.”

That may be, but so is the policy of “remain in country” for overseas Americans and “shelter in place” for official government employees. What are the real ethical concerns of leaving our nationals to fend for themselves overseas (is there one, they went by choice)? What about leaving the people who work for our Government overseas (is there one, they signed up for worldwide availability)? Perhaps it is useful to note here that the pandemic of 1918-1919 which was the most severe in history caused at least 675,000 in the United States but up to 50 million deaths worldwide. I’ve asked the Official Historian what happened to our diplomats overseas in 1918 but have not heard anything.

The Remain in Country During Pandemic flyer reminds overseas Americans:

“Remember that U.S. embassies, consulates and military facilities lack the legal authority, capability, and resources to dispense medications, vaccines or medical care to private American citizens overseas. If you are a private American citizen (e.g. living, working, touring, studying overseas) you will need to rely on local health care providers and locally-available medications since U.S. government facilities will not be able to provide medications or treat you.”

In short – you’re on your own. The www.pandemic.gov website has this checklist for US businesses with overseas operation.

But apparently official Americans, our Foreign Service folks will also be asked to “shelter in place,” wherever that might be; which means – no evacuations from anywhere, no C-130 Hercules military transport plane will come get us. Since majority of the FS are deployed overseas, we too, will be on our own in a foreign country. Have we, at least, done a table-top exercise on this? Is there any post out there who has conducted a pandemic scenario in a table-top exercise? I really would like to know.

The flyer further states:

“Based on varying conditions abroad, Americans should prepare contingency plans and emergency supplies (non-perishable food, potable water or water-purification supplies, medication, etc.) for the possibility of remaining in country for at least two and up to twelve weeks.”

Let’s say we have a medium size post with 500 official Americans and family members. The pandemic preparation website indicates that we need at least 1 gallon of water a day per person. Right there, for a 500-person post, we would need 500 gallons a day. That’s a 7,000 gallon requirement in two weeks and a 42,000 gallon requirement in 12 weeks. We would have quite a conundrum, won’t we? – and that’s just with water.

So the question asks by BBC Magazine, “Do you need to stock up the bunker?” somehow got stuck in my head and would not let me be. Brendan O’Neill writes that “there are scientists who believe that bird flu could shift so it could pass from human to human, resulting in a global pandemic that could kill 50 million people. But that there are threats that seem more immediate. The price of food is rising dramatically and oil is at record prices. Even brief periods of crisis can have severe consequences.”

Apparently in some green discussion circles, those concerned about “peak” problems – that is, the potential for the production of things such as oil and food to peak and then to start declining – are now referred to as “Peakniks” according to the same article.

Also cited in the article was Barton Biggs, a former chief global strategist for Morgan Stanley and author of Wealth, War and Wisdom, who now runs the hedge fund Traxis Partners in New York, who suggests that all right-minded people should “assume the possibility of a breakdown of the civilized infrastructure.” He further elaborates: In a world in which people and systems are increasingly “interconnected”, the potential for infrastructure to collapse is great, he says. Political disturbances in Kenya, drought in Australia or crop disease in South America can quickly affect food prices in the UK. And globally, everything from modern mass agriculture to transport and industry is dependent on the availability of oil. “I’m just suggesting,” says Mr. Biggs, “that if you can afford it you should invest in a bolthole. A farm, perhaps, where you could live for a month and survive.” “I am talking Swiss Family Robinson,” he says, referring to the famous 1812 novel about a Swiss family that survives after being shipwrecked in the East Indies. “You should have food, water, medicine, clothes. And possibly AK47s to fire over the heads of any guys, depending on how bad things become.”

Since we are going to be ordered to “shelter in place,” Mr. Biggs’ survival kit advice of food, water, medicine, clothes, and AK47s, sounds good to me. I don’t know about a bolthole or a farm, I’m sure we have no appropriated money for that; would a vault do?