In March of 2014, the World Health Organization announced an outbreak of the Ebola virus in areas of the country of Guinea, with suspected cases in neighboring countries. From there, most of the countries in northwest Africa became affected by the rapidly spreading contagion. By the end of the year, tens of thousands of cases were confirmed.
Arising out of the African spread of the disease, here in America, four individuals have been confirmed as having been infected with the Ebola virus. One of those individuals, Thomas Eric Duncan, died of the disease. The other three recovered from the illness and are now considered Ebola free. As of the writing of this article, there are no known cases of Ebola in the United States at present, and there have been no such cases in 2015, though a healthcare worker in Sierra Leone with a high risk of exposure was medically evacuated to Nebraska in January.
The individuals in the United States that had contracted the disease were each placed in isolation upon discovery of the diagnosis. These quarantines came with varying levels of protection in place, and with varying levels of cooperation from the individuals involved. In many quarters, the incidents of Ebola in the United States came alongside calls for stronger action to be taken by the government to contain the disease, and isolate those with increasingly small probability of infection.
Thus, while the isolation of those who may potentially have been infected with the Ebola virus did not result in an ultimate, decisive answer to the question of what powers a state has to quarantine an individual who does not agree to such quarantine, the question was certainly raised nonetheless. And the answer, it seems, is less clear than most politicians would have us believe.
Any powers in this area that belong to the federal government arise from the Commerce Clause, located in Article I, Section 8 of the United States Constitution. Thus, federal authority is limited to preventing the spread of disease between states and from foreign countries and does not deal with prevention within a particular state. The executive authority has been delegated to the Centers for Disease Control (CDC) and the Division of Global Migration and Quarantine. These offices prevent the spread of diseases through Quarantine Stations at U.S. ports, medical examination of persons entering the U.S., administration of international travel quarantine regulations and other measures.
The federal government maintains an ever-changing list of quarantinable communicable diseases through Executive Order, which can be found on the CDC website. The Ebola virus is a communicable disease.
Through 42 USC § 264, the federal government grants rulemaking authority to the Surgeon General “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.” The same statute provides for the apprehension, examination, and detention of individuals reasonably believed to be infected with a qualifying communicable disease and entering a state. If found to have a communicable disease, such individual may be detained “for such time and in such manner as may reasonably be necessary.” The violation by any person of a law or regulation governing quarantine for a communicable disease is punishable by a fine of not more than $1,000 or by imprisonment for not more than one year, or both.
The federal government has affirmatively disclaimed any authority to control the spread of disease within a particular state. If, however, the director of the CDC determines measures taken by state or local authorities are insufficient to prevent the interstate spread of communicable disease, he/she may “take such measures as he/she deems reasonably necessary” to prevent it.
Nothing, it should be noted, in the federal statutes and regulations regarding this issue provides any authority or procedure for notice and/or a hearing before a magistrate before quarantine can be imposed, nor does it provide for such hearings after the fact. While such rights are not specifically disclaimed or eliminated, the fight for such relief would proceed without specific statutory or regulatory authority.
Several states have the authority to protect and promote the public health, safety and welfare through the states’ inherent police powers. This certainly extends to taking all reasonable and lawful measures to detect communicable disease and prevent its spread within a state’s borders. Kentucky finds its authority to protect the public health and to protect the safety and welfare of its citizens through its inherent police powers. The law in Kentucky regarding communicable diseases is evolving, in some cases that evolution is happening rapidly, likely in response to the Ebola virus and the discussions surrounding it. But the evolution is still a piecemeal process, leading to seemingly inconsistent attitudes toward the virus in Kentucky’s laws and administrative regulations.
Kentucky’s Department of Public Health has set up lists of certain diseases that, when identified by healthcare providers in the state, must be reported to health officials. Depending on the perceived severity and/or communicability of the disease, it can require “urgent,” “priority,” or “routine” notification. Prior to December 2014, Ebola and similar diseases were not included on any of these lists. However, in amendments promulgated and approved by the Department of Public Health on December 12, 2014, this list was expanded to include “viral hemorrhagic fevers,” specifically including Ebola, among those diseases requiring the “urgent” notification.
When a healthcare provider in the state suspects a patient of having the Ebola virus, pursuant to this new regulation, the provider must notify the local health department where the patient resides within 24 hours. The local health department is then obligated to notify the Kentucky Department of Public Health.
Aside from notification, Kentucky’s regulations do not address remedies or further actions to be taken for or by those suffering from Ebola. Individuals that are suffering from or are carriers of cholera, amoebic dysentery, bacillary dysentery, diphtheria, typhoid, and paratyphoid fever are subject to supervision of the local health department or the Cabinet for Human Resources. And physicians and local health departments that become aware of such individuals have a duty to report them to the Cabinet for Human Resources. But as of the writing of this article, no such provisions exist specifically related to sufferers or carriers of Ebola.
Kentucky’s Board of Medical Licensure has promulgated charts of frequently asked questions about guidelines for management of patients with suspected Ebola, disease screening criteria, and guidelines regarding personal protective equipment that should be worn when dealing with suspected Ebola patients. However, much of this information is generated from the federal Centers for Disease Control, and not any state entity. And none of this information deals with procedures for involuntary quarantine.
Part of this responsibility for the paucity of state-level information may have to do with the way authority for health matters in Kentucky is delegated. City and county boards of health have broad authority to deal with diseases in their local jurisdictions, authority that may preempt state action. Kentucky statutes declare that the City and county boards of health have “exclusive control and operation…of…all…matters affecting public health,…and the enforcement of all laws and regulations affecting public health…including…quarantine. The same statute does condition this authority as being “under the acts of the General Assembly of Kentucky… the regulations of the Cabinet for Health and Family Services,” and the board’s own rules and regulations. But in an area, like quarantines, where both the General Assembly and the state’s regulations are silent, the local board of health would have exclusive control (and, at least for now, seemingly unregulated control) over the means by which a quarantine of an individual would be implemented.
It should be noted that the Cabinet for Health and Family Services has specific authority, granted to it by statute, to “take such action” and “adopt and enforce such rules and regulations” to prevent the introduction or spread of such infectious or contagious diseases within Kentucky. This authority is specifically designed to include the authority to “establish and strictly maintain” quarantine or isolation as it sees fit.The problem, however, is that this authority is predicated upon the Cabinet believing that “there is a probability that any infectious or contagious disease will invade this state.”
Thus, if a disease like Ebola were to enter Kentucky without warning (and thus, without the Cabinet for Health and Family Services believing that a “probability” of an Ebola “invasion” existed), the short-term, immediate response to that disease would fall on the local board of health, with the Cabinet for Health and Family Services having an eventual role in establishing and maintaining quarantines and other responses down the line.
The biggest problem is that both the eventual response of the local board of health and the Cabinet for Health and Family Services are just that: responses. Any decision about the methods of quarantine, or the due process rights of those that might be subjected to quarantine, would have to be made from a reactive position. Without guidelines, procedures, or protocols already in place to deal with the rights of those who might be suspected of carrying diseases like Ebola, we have no indication of how one might best protect his or her rights should a quarantine or other disease-response scenario be deemed necessary.
John Pollom is an associate in Stites & Harbison’s Lexington office and a member of the Business Litigation Service Group.