United States: Quarantines In Kentucky: The State's Role, Rights, And Responsibilities

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 effected 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 health-care 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.1

Federal Authority

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.2  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.3

The federal government maintains an ever-changing list of quarantinable communicable diseases through Executive Order.4  The current list of quarantinable communicable diseases may be found on the CDC website.5    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."6   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.7

The federal government has affirmatively disclaimed any authority to control the spread of disease within a particular state.8  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.9

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.

Kentucky 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.  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 health care providers in the state, must be reported to health officials.10  Depending on the perceived severity and/or communicability of the disease, it can require "urgent," "priority," or "routine" notification.11  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.12

When a health care 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.13  The local health department is then obligated to notify the Kentucky Department of Public Health.14

Reflecting the evolving nature of these regulatory amendments, however, 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.15  Physicians and local health departments that become aware of such individuals have a duty to report them to the Cabinet for Human Resources.16  But as of the writing of this article, no such provisions exist specifically related to sufferers of or carriers of Ebola.17

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.18  However, much of this information is generated from the federal Centers for Disease Control, and not any state entity.19  And none of this information deals with procedures for involuntary quarantine.20

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-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-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.21  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.22  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.23  This authority is specifically designed to include the authority to "establish and strictly maintain" quarantine or isolation as it sees fit.24  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."25

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.

Footnotes

1 It should be noted that this article limited to a discussion of individual civilians.  There is no attempt herein to discuss laws regarding military personnel, goods, animals, or differences during times of war. 

2 http://www.cdc.gov/quarantine/specificlawsregulations.

3 Id.

4 42 CFR §§70.2, 70.6.

5 http://www.cdc.gov/quarantine/aboutlawsregulationsquarantineisolation

6 42 USC §264(d).

7 42 USC §271(a).

8 42 USC §264(e).

9 42 CFR §70.2.

10 902 KAR 2:020

11 Id.

12 902 KAR 2:020 (5)(18)(b)

13 902 KAR 2:020(4)(5)(a)

14 902 KAR 2:020(4)(6)(a)

15 902 KAR 2:040(1)

16 Id.

17 Id.

18 http://kbml.ky.gov/Pages/Ebola-Information.aspx

19 Id.

20 Id.

21 KRS § 212.370

22 Id.

23 KRS § 214.020

24 Id.

25 Id.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Stites & Harbison PLLC
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Stites & Harbison PLLC
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions