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ATLANTA � When federal and Fulton County health officials testified before Congress last week, much of the focus was on who said what, to whom and when, in discussions about the now-famous tuberculosis patient Andrew Speaker. The Atlanta lawyer made headlines after the Centers for Disease Control and Prevention announced May 29 that it had issued a federal isolation order against a then-unnamed patient who might have posed a risk of infection to passengers on two trans-Atlantic flights. As officials and Speaker argued over whether he was told not to fly, Wednesday’s hearing showed how the case has become equal parts public health fire drill and made-for-TV soap opera. But the discussion also touched on key legal issues that will determine how the next episode is handled � the extent of federal and state officials’ power to detain, isolate or quarantine people to protect the health of others. It’s unclear whether federal and state health authorities had the power to do more to stop Speaker’s movements than they did � or that even if they did have more power, that it would have been necessary or prudent to use it. But the case shines light on ongoing efforts by public health lawyers to make sure government agencies have the legal tools they need when a health emergency hits. “We’re trying to change on the fly probably 50 years of sort of quiet inattention to this particular area of how private and public people conduct themselves,” said Gene Matthews, formerly the CDC’s chief lawyer, in an interview this week. There could be a lot to change. While states have worked to update their laws in the wake of the terrorist attacks of Sept. 11, 2001, some old state statutes deal only with specific diseases like tuberculosis or yellow fever. As public health officials and lawmakers grapple with the fears of a pandemic like avian flu, they must do so in a culture more sensitive to issues of individual rights � making future health care detentions trickier. LAW FOR ‘KEEPING PEOPLE OUT’ By the time the CDC served him with an isolation order, Speaker was in New York, back from his European wedding and honeymoon. But on Wednesday, CDC Director Julie Gerberding addressed steps the government might have taken to detain Speaker sooner � had the law not constrained it. The federal statute giving her quarantine authority does not address patients leaving the county, explained Gerberding in her testimony. “The whole history of quarantine has been dedicated to keeping people out and containing them,” she testified. A federal statute and accompanying regulations give the CDC director the power to isolate or quarantine people suspected of carrying certain diseases designated by the president in an executive order. Isolation refers to detaining people who have a disease, while quarantine orders are issued against people who are not ill but may have been exposed to an infectious disease. Right now, the list of diseases covered by the federal government’s quarantine power is limited to cholera, diphtheria, “infectious Tuberculosis,” plague, smallpox, yellow fever, viral hemorrhagic fevers like Ebola, Severe Acute Respiratory Syndrome (SARS) and, added most recently, certain influenza viruses that could cause a pandemic. The federal public health statute, found in part at 42 U.S.C. �264, says that generally those regulations for detaining individuals can apply only to people coming into the country from a foreign country or U.S. possession. Greater authority is provided by the statute when the patient’s disease is “in a communicable stage” or is likely to cause a public health emergency if other people got it. With those patients, the federal government’s detention powers can reach people moving from state to state or people likely to infect people who will be moving from state to state. “But, as a practical matter, we don’t stop people crossing from Georgia to South Carolina,” explained lawyer Mark Rothstein, the director of a health policy institute at the University of Louisville. Instead, he said, the federal government focuses its containment efforts on international travelers. Beyond the jurisdictional constraints and list of included diseases, there are few curbs on the government’s isolation and quarantine authority, said Rothstein. “It’s really going to be a public health determination of when the individual is going to present a danger,” he said. That doesn’t mean you can’t challenge a federal isolation or quarantine order in court, he noted. Gerberding has told reporters that “people at the CDC don’t recall us doing this since 1963,” an apparent reference to a case in which the order was challenged. The federal district judge’s order dismissing that challenge recounts the tale of New York City lawyer Helen Minkin’s attempt to force the release of her mother, Ellen Siegel. Siegel had arrived from Stockholm on July 25, 1963. Because Stockholm was then considered “a small pox infected local area,” and Siegel hadn’t been able to present on her arrival a valid certificate of vaccination against small pox, the federal government put her in isolation for 14 days at a federal public health hospital on Staten Island. Minkin filed a habeas action demanding her mother’s discharge. U.S. District Judge John Francis Dooling Jr. turned her down, saying “the judgment required is that of a public health officer and not of a lawyer.” While federal orders like those issued against Siegel and Speaker may be rare, state and local authorities issue them on a regular basis, explained Rothstein. The majority, he said, have involved tuberculosis, giving the Hantavirus � a deadly disease spread by rodents � and the water-borne Legionnaires’ disease as other examples. GEORGIA’S TB LAW In Georgia, Gerberding told lawmakers Wednesday, it takes a court order to isolate a patient under public health laws, but only after the patient ignores medical advice. She suggested that one issue the Speaker incident raised is whether states should have the ability to restrict patients’ movement sooner in the process. Georgia’s statutory code contains a fairly comprehensive set of procedures for dealing with tuberculosis cases specifically, starting at O.C.G.A. �31-14-1. When state or county health officials believe a patient with active tuberculosis is disobeying their orders, they can go to superior court to get a confinement order.
‘The reason this is a hot-button issue … is because in this country we have never until recently had to wire together the circuitry between individual liberties and public health control measures.’

Gene Matthews former CDC chief lawyer

That court has the power to commit a person to the custody of the county sheriff for delivery to a hospital for mandatory treatment for up to two years. But first the court has to have a hearing, in which the patient has the right to counsel and cross-examination of witnesses and other procedural checks. The hearing must take place no sooner than seven and no later than 12 business days after the petition is filed. A judge can issue a temporary confinement order pending the hearing, however. The state statute provides a right of appeal and a means by which the patient or his family can go back to court if he thinks the confinement is no longer warranted. Georgia’s code in several instances sets forth in general terms the quarantine and isolation powers of the state Department of Human Resources and county health boards. But such detailed procedures for grappling with diseases besides TB are more difficult to find in the Georgia code. States originally enacted their quarantine and isolation laws on an ad hoc, disease-by-disease basis, explained Matthews, the former CDC lawyer, who is now a senior fellow at the North Carolina Institute for Public Health. Since the terrorist attacks of Sept. 11, 2001, he said, the CDC has collaborated with Lawrence Gostin, who directs the Center for Law and the Public’s Health at Johns Hopkins and Georgetown universities, to develop a model state public health law that will enable states to respond to a public health emergency. He estimated that 44 states have updated their laws since. Georgia is one of them; in May 2002, then-Gov. Roy Barnes signed a bill on public health emergencies, Senate Bill 385. Among other things, that legislation amended O.C.G.A. �38-3-51, which deals with emergency powers of the governor. One of the amended subsections provides for various due process procedures � including the right to counsel and means for appeal � applicable to quarantine or vaccination programs instituted pursuant to a declaration of a public health emergency by the governor. SHIPS PASSING IN THE NIGHT Acknowledging these updates in state statutes, Matthews said there’s always room for improvement. Ask experts about what still needs to be done, and it seems they have an inexhaustible list of areas where legal and bioethical issues collide. One problem is how to widely distribute a pandemic flu vaccine � possibly an investigational one � in an emergency, said Matthews. “How would you give informed consent in a mass situation? � You’re not going to be able to physically handle all the procedural niceties in an emergency,” he said. Matthews said his current project is developing laws to protect from liability business and non-profit entities that volunteer help in an emergency. Asked about gaps in the legislative toolbox, Rothstein said “the number of things are seemingly endless in terms of the logistics of how you will deal with a major outbreak.” He cited guidelines for prioritizing who gets limited resources such as hospital beds and ventilators, as well as job-security and income-replacement protections for people unable to work because they’re under quarantine, as examples of areas that need to be worked out. What is the scenario about which experts are most worried? “The doomsday scenario is the avian flu mutates and someone gets on a plane from somewhere and shows up in L.A. or New York and starts breathing on people,” said Rothstein. To prepare for such possibilities, the CDC is updating its own regulations. In her testimony on the Hill on Wednesday, Gerberding described the proposed changes to 42 C.F.R. parts 70 and 71 as giving more explicit due process protections to those ordered into isolation or quarantine and enabling CDC to get information about ill or potentially exposed passengers more quickly. Matthews also described the proposed federal regulations � the CDC is reviewing public comment on the changes � as beginning to spell out due process requirements. But not everyone is satisfied. The American Civil Liberties Union has submitted its objections, saying aspects of the proposed rules on quarantine are unconstitutional. The difficulty, said Matthews, is that in the mid-1950s, just as public health officials were developing the polio vaccine that would contain the one of the last great contagious diseases, the U.S. Supreme Court decided Brown v. Board of Education, 347 U.S. 483 (1954), ushering in a rich history of protecting individual rights against government abuse. He likened the two phenomena as two ships passing in the night. With the exceptions of AIDS and TB, said Matthews, the country only recently has had to grapple once again with a dangerous contagious disease. As the county deals with emerging, dangerous diseases, now it has to do so in the context of legal evolutions on individual rights, he explained. “The reason this is a hot-button issue … is because in this country we have never until recently had to wire together the circuitry between individual liberties and public health control measures,” said Matthews. Alyson M. Palmer is a staff reporter for the Fulton County Daily Report, a Recorder affiliate based in Atlanta.

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