United States: Can I Be Detained For Being Ill?

Introduction

The Ebola virus is an epidemic ravaging the West African countries of Liberia, Sierra Leone, and Guinea, and threatens to become a broader pandemic. The first known cases of Ebola infected individuals being in the U.S. were two American healthcare workers who contracted the disease while caring for patients in Liberia, and were then transported back into the U.S. to receive treatment. The infected healthcare professionals were transported in specially equipped vehicles (both ground and air transportation) and assisted by other healthcare professionals in "Haz-Mat" type protective gear. Once in the U.S., both were quarantined in special care units in hospitals for a period of several weeks. With the use of experimental medications not yet certified for public use by the Food and Drug Administration, the two workers fully recovered from their illness. No one else contracted the virus from these two individuals.

The next case of Ebola diagnosed in the U.S. was an individual who traveled to Dallas, Texas, from Liberia. After arriving in the U.S. he had lived in close contact with family members in an apartment complex in Dallas. He became symptomatic and was eventually diagnosed with Ebola and admitted to a Dallas Hospital. The patient died shortly thereafter. His family members were placed in quarantine for 21 days before being cleared as virus-free. Shortly thereafter, two nurses who provided care for that individual were diagnosed with the virus. They were also placed in isolation while receiving treatment. At the time of this writing another health care professional had just been diagnosed in New York City. By the time this is being read, there have likely been additional cases diagnosed.

With these first cases of Ebola infection originating in the U.S. came calls for stronger and swifter governmental action to contain the virus and prevent further spread of the disease. Among the steps some have called for are travel bans and mandatory quarantine of anyone who has recently been in the West African countries. Following the Ebola diagnosis in New York, the governor of that state as well as the governor of New Jersey announced plans for the future mandatory quarantine of health care workers returning to those states who had been in contact with Ebola victims in the affected countries.

In all of the reported cases of Ebola in the U.S., the patients/victims apparently were compliant with the quarantine and isolation efforts. But what if the carrier or suspected carrier is not compliant, and refuses to be isolated or quarantined? What if he/she wants to take a commercial flight for interstate or international travel while positive for the virus? Are U.S. citizens subject to involuntary detainment for the purpose of isolation and quarantine? The purpose of this paper is to summarize the authority of the federal government and the State of Tennessee in placing restrictions on individual liberties when necessary to prevent the spread of communicable diseases.¹

Federal Authority

The federal government's authority in this area is grounded in the Commerce Clause of Article I, Section 8 of the United States Constitution. Accordingly, the federal government's responsibility is limited to efforts at preventing the spread of communicable diseases into the U.S. from foreign nations, and among and between the states. The authority of the Secretary of Health and Human Services is delegated to the Centers for Disease Control (CDC) and the Division of Global Migration and Quarantine.² Through these offices, the federal government takes a number of steps to prevent the spread of communicable diseases, including: (1) the operation of Quarantine Stations at ports of entry; (2) establishment of standards for medical examination of persons destined for the U.S.; and (3) administration of quarantine regulations governing the international and interstate movement of persons, animals and cargo.³

A threshold question is what is a "communicable disease" for the purpose of qualifying an individual for possible isolation or quarantine? A list of quarantinable communicable diseases is set forth by Executive Order which can be and is amended from time to time.⁴ By Executive Order dated July 31, 2014, the list of quarantinable communicable diseases was amended to include "severe acute respiratory syndromes" falling within certain defined parameters. The list also includes "viral hemorrhagic fevers." A full list of quarantinable communicable diseases may be found on the CDC website.⁵ The Ebola virus is a communicable disease.

The statutory basis for the federal government's authority in this area is 42 USCS §264, which extends plenary rulemaking authority to the Surgeon General, with the approval of the Secretary of Health and Human Services, "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."⁶ The enabling statute specifically provides for the apprehension, examination, and detention of individuals reasonably believed to be infected with a qualifying communicable disease and coming into a state from a foreign county or from another 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."⁷ Implementing regulations are codified at 42 Code of Federal Regulations, Parts 70 and 71. 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.⁸

As discussed below in regard to Tennessee law in this area, the federal government recognizes the individual states have the power and authority to control the spread of disease within their respective borders. Therefore, the federal statute expressly and affirmatively rejects any federal preemption of state law in the field.⁹ 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.¹⁰

Conspicuously absent from the federal statutory and regulatory scheme is any affirmative procedure for a pre- or postdeprivation notice and the right to be heard by a judge or magistrate, or any other form of due process safeguards. The absence of such a provision in the statute and regulations does not mean that such rights are precluded, but it clearly puts the burden on the potential detainee to seek injunctive or other form of extraordinary relief, or perhaps a writ of habeas corpus from a court of law.

State of Tennessee Authority

The 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. The Tennessee laws on the subject matter of quarantine and isolation of persons and premises to prevent the spread of communicable disease are a patchwork of measures and are outdated in some respects. For example, the only diseases specifically named in the relevant Tennessee law and rules are cholera, yellow fever, smallpox, and tuberculosis. Unlike the federal scheme, there is no rule or executive branch document listing of communicable diseases that can be easily and quickly updated. There is a definition of "Communicable Disease" in the Rules of the Department of Health which appears to be broadenough to include the Ebola virus.¹¹ But despite some shortcomings of Tennessee law in this area, it does have an important feature which is lacking in federal law — an affirmative statement and process for a pre-deprivation notice and hearing, and other due process safeguards (discussed below).

Primary authority for implementing and enforcing the quarantine laws in the State of Tennessee is vested with the Commissioner of Health and its designees.¹² Derivative authority is also vested in the "municipal or county health authorities" as directed and prescribed by the Commissioner of Health.¹³ Pursuant to T.C.A. §68-1-201(a) the Commissioner of Health is authorized to: (1) "declare quarantine whenever, in the commissioner's judgment, the welfare of the public requires it;" (2) promulgate rules and regulations for the prevention of the introduction of "epidemic disease" into the state; and (3) "carry into effect such rules and regulations as, in the commissioner's judgment, will, with the least inconvenience to commerce and travel, prevent the spread of the disease."

Rules implementing the commissioner's statutory authority are codified at Tenn. Comp. R. & Regs. Chapter 1200-14-4. The Rules set forth the "procedures to be followed by the Commissioner, health officers, and their designees, in carrying out disease control enforcement activities involving persons or premises that pose a health threat to others."¹⁴ If the commissioner reasonably believes based upon clinical or epidemiological evidence that a threat health to others from a communicable disease exists, he/she may issue a "health directive."¹⁵

A health directive is a statement, based upon clinical or epidemiological evidence, that such a threat exists, which requires a person to cooperate with health authorities' efforts to prevent or control transmission of the disease.¹⁶ Such cooperative measures may include, without limitation, submitting to medical testing, participation in treatment programs, isolation and/or quarantine, and preventing or restricting access to affected premises.¹⁷ The health directive must be individual and specific, and may not be issued to a class of persons.¹⁸ The isolation or quarantine may be effectuated in places such as the person's home or in a medical institution, but in no case may a person be so detained in a correctional facility.¹⁹ The individual has a right to appeal the health directive decision to the Office of the Chief Medical Officer, and the CMO must issue a decision within five business days of its receipt.

If the subject of a health directive is dissatisfied, or refuses to comply, the commissioner may file a petition for a Public Health Measure with the General Sessions Court of the county where the alleged carrier lives or can be found.²⁰ A public health measure is in essence a health directive that is issued by the General Sessions Court after a hearing. The rules provide for a temporary emergency hold of an individual for up to five days pending a hearing on the merits, which temporary hold may be ordered by the court upon petition of the commissioner supported by affidavit. A temporary hold may be extending for up to a total of fifteen days upon approval of the court.²¹

The carrier must be served with notice of the petition and hearing at least five days prior to the hearing. The notice must set forth the grounds and underlying facts that demonstrate the carrier poses a health threat to others, the nature of the relief south, and that the relief sought is the least restrictive measure to protect the public health. The Department of Health has the burden of proving there is a substantial likelihood the carrier or premises poses a health threat to others by clear and convincing evidence.²² The decision of the General Sessions court may be appealed as provided by law for any other civil proceeding, but the court's decision is not stayed by an appeal, according to the Rule.²³

Conclusion

The authority to control and prevent the spread of communicable diseases is shared among the federal and state governments. Federal authority is limited to cases of potential international and interstate proliferation while the several states have the authority to control communicable diseases within their borders. The authority of both the federal and state governments includes the power to detain an individual carrier or potential carrier in order to protect the public health safety and welfare.

The federal law in this area is expansive in its scope and includes no affirmative provisions to afford procedural due process for affected citizens. Tennessee law includes more limitations on the discretion of the government to restrict the liberty interests of its citizens, while still allowing the government to take actions to protect the public health, safety and welfare. Importantly, Tennessee law affords fundamental due process protections of notice and an opportunity to be heard by a court of law.

Footnotes

1. The scope of this writing is limited to individual civilian citizens. Laws regarding the subject matter relating to military personnel, times of war, navigation and aircraft, import/export of goods, animals and a myriad of others is beyond its scope, as is a summary of relevant laws in all 50 states.

2. CDC, Quarantine and Isolation, http://www.cdc.gov/  quarantine/specificlawsregulations.html (provides links to specific laws and regulations).

3. Id.

4.  42 C.ER. §§70.2, 70.6.

5. CDC, Quarantine and Isolation, http://www.cdc. gov/quarantine/quarantineisolation.html (provides explanation of quarantine and isolation).

6. 42 U.S.C. §264(a).

7. 42 U.S.C. §264(d).

8. 42 U.S.C. §27 l (a).

9. 42 U.S.C. §264(e).

10. 42 CFR §70.2.

11. TENN. COMP. R. & REGS. 1200-14-4-.02(6).

12. See, e.gTENN. CODE ANN. §68-1-201.

13. TENN. CODE ANN. § 68-5-103.

14. TENN. COMP. R. & REGS. 1200-14-4-.01.

15. Id. at 1200-14-4-.04(1).

16. Id. at 1200-14-4-.02(10).

17. Id. at 1200-14-4-.04(2).

18. Id. at 1200-14-4-.04(1).

19.Id. at 1200-14-4-.04(2).

20.Id. at 1200-14-4-.04(4), (7).

21. Id. at 1200-14-4-.05.

22. Id. at 1200-14-4-.06(1).

23. Id. at 1200-14-4-.06(4). The legitimacy of an administrative rule purporting to limit the court's discretion to issue a stay is dubious.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.