JURIST Guest Columnists James G. Hodge, Jr. and Sarah Wetter, of The Sandra Day O’Connor College of Law, Arizona State University, discuss forthcoming new regulations on controlling communicable diseases through the federal Centers for Disease Control and Prevention …

On January 19, 2017, the federal Centers for Disease Control and Prevention (CDC) published a final rule to enhance and clarify its capacity to prevent the introduction, transmission, and spread of communicable diseases into and across the US.

Pursuant to the federal Public Health Service Act (PHSA), CDC is authorized to detain, medically examine, and release foreign and interstate travellers suspected of carrying a communicable disease. However, corresponding regulations stemming from this legislative authority have long been overdue for reforms.

In the process of modernizing these regulations, CDC published an initial draft of the regulations on August 15, 2016. Ensuing public commentary revealed concerns over potential infringements of individual and community rights stemming from CDC’s efforts to strengthen its authority. While the agency worked extensively to balance modern public health powers and personal freedoms in amending its initial draft, the final rule may still be subject to legal and political challenges.

Need for Federal Communicable Disease Control Reforms

Recent communicable disease outbreaks (e.g., SARS (2003), H1N1 (2014), Zika (2015)) expose existing inadequacies in US public health preparedness. In 2014, 2 individuals infected with Middle East Respiratory Syndrome (MERS) arrived to the US from abroad. Their conditions were initially undetected, resulting in case investigations of over 700 close contacts (other travelers, members of their household and community, and health care workers), costing upwards of $250,000.

The 2014-2016 Ebola outbreak reached the US after spreading throughout remote West African villages to major international transportation hubs. One infected individual, Eric Thomas Duncan, slipped into Dallas, Texas from Liberia. He was initially turned away by a local hospital that failed to properly diagnose his condition, and later died at the same hospital where 2 of his treating nurses were also infected. His case lead to the screening of over 30,000 additional travelers at US airports between October 11, 2014 and the end of the outbreak months later. However, federal officials failed to detect any new, incoming cases through this lengthy, expensive surveillance.

These outbreaks and events reinforce the need for more coordinated and efficacious governmental responses to detect, prevent, and treat emerging infectious conditions. Modernized powers to institute social distances between infected persons and at-risk communities are essential to protecting the public’s health.

CDC’s Final Rule: A Primer

CDC’s final rule seeks to strengthen the authority for federal officials to take rapid and effective action in response to potential or actual public health emergencies. It authorizes federal public health prevention measures at US airports, seaports, railway stations, bus terminals, and other interstate and international transportation hubs.

All travellers, regardless of their destination, may be subject to prevention measures including observation, questioning, and review of available health and travel records. Airline operators must report incidences of persons who fall ill or perish in flight, and take action to confine the spread of potential infectious agents. Affected individuals may be required to provide contact information in the event of suspected exposure to an infectious agent.

The rule broadly defines “ill person” to include anyone with signs or symptoms of a communicable disease, allowing CDC to take early action to prevent the spread of contagious and potentially life threatening conditions. Based on “reasonable beliefs” that an individual is infected with a quarantinable communicable condition (listed via Executive Order), a CDC official may issue an order for apprehension, isolation, quarantine, or conditional release of the individual. To assist in this determination, the individual may be required to undergo a medical examination by a licensed health worker. Examinations may include testing as reasonably necessary to confirm or rule out the presence of a quarantinable condition. Infected individuals may not engage in interstate or international travel (with some exceptions) without a federal travel permit.

From Draft to Final: Key Changes

Five months prior to the publication of the final rule, CDC published a proposed version of the rule and implemented a two-month period for public commentary. After reviewing over 15,000 comments, CDC issued its final rule that strikes a finer balance between promoting the public’s health and protecting individual and community rights.

The final rule affords several individual protections lacking in the proposed version. CDC eliminated a provision that would have allowed the agency to unilaterally require individuals to submit to procedures including hospitalization, vaccination, and medical treatment. Public health prevention measures must be non-invasive. Medical examinations can only be conducted with prior informed consent. Individuals subject to social distancing measures are entitled to adequate food, water, accommodations, medical treatment, and means of communication.

Federal orders for isolation, quarantine, or conditional release must be issued in close proximity to an individual’s initial apprehension. Any order is subject to reassessment by a federal official (who cannot be the same person who issued it originally) within 72 hours. Officials reassessing an order have to consider and determine whether less restrictive means would adequately protect the public’s health. Affected individuals subject to continuing orders can request a medical review, present witnesses and testimony, and be represented by medical or legal advocates at governments’ expense if the individual is indigent.

Potential Legal Pitfalls

Despite meaningful reforms, the final rule may still be subject to legal and policy challenges depending in part on how and when its provisions are executed. CDC’s continued reliance on “reasonable beliefs” of an individual’s infection in support of its social distancing measures falls below the “clear and convincing” standard of evidence generally needed to justify such deprivations of liberty interests. CDC may purport that a lower threshold is justified where the public health threat is substantial.

Broadly defining “ill persons” allows federal officials wide discretion to make initial determinations of a traveler’s health status, but could also lead to unjustified social distancing orders impacting individuals with relatively minor conditions. To the extent the final rule does not mandate external, non-CDC assessments or reviews via a neutral decision maker, individuals may arguably be denied sufficient due process.

Future Implementation of the Final Rule

CDC published the final rule just one day prior to the Presidential inauguration of Donald Trump and the resulting changes in its own leadership with the departure of Director Tom Frieden and others. How the provisions of the final rule actually play out will only be known after February 21, 2017 when it takes full effect.

To be sure, updating existing, antiquated powers to prevent the introduction, transmission, and spread of communicable diseases into and across the US is a laudable goal. CDC’s final rule goes a long way toward clarifying specific federal authority in this critical area of emergency preparedness. Yet, implementation may lead to legal and political challenges. CDC must be diligent in exercising its authority in a manner that properly weighs protection against public health threats with potential infringements on individual rights.

James G. Hodge, Jr., JD, LLM, is Professor of Public Health Law and Ethics, and Director, Public Health Law and Policy Program at Sandra Day O’Connor College of Law, ASU. Sarah Wetter, JD candidate (2017), is a Senior Legal Researcher, Public Health Law and Policy Program at Sandra Day O’Connor College of Law, ASU.

Suggested citation: James G. Hodge, Jr. & Sarah Wetter, Communicable Disease Regulation: Balancing Civil Liberties and Public Health, JURIST – Academic Commentary, Jan. 20, 2017, https://www.jurist.org/forum/2017/01/forging-ahead-on-revised-federal-communicable-disease-control-regulations.php.