Legal Authority to Prevent & Control Tuberculosis DEBORAH GARCIA, J.D., M.A.H.S. PETER DAVIDSON, PH.D. MDCH TB NURSE CERTIFICATION COURSE JULY 24, 2014

Presenters  Deborah R. García, JD, MAHS

Public Health Administrative Law Specialist Office of Legal Affairs Michigan Department of Community Health  

(517) 241-3374 E-Mail: [email protected]

 Peter Davidson, Ph.D.

TB Control Unit Manager, Division of Communicable Disease  

(517) 335-8165 E-mail: [email protected]

Preventing & controlling tuberculosis… We all have a role  Local, State and Federal public health agencies  Health care facilities  Employers  Non-governmental & Community organizations  Patients

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The Fine Print This presentation is for informational purposes only. This presentation represents our understanding of various laws, and is not intended as a legal position or advice from the State of Michigan or the Michigan Department of Community Health. For legal advice, attendees should consult with their own counsel.

Health department authority to protect public from TB disease  Defined by Michigan Public Health Code  Public health responsibilities are a joint function of state

and local health departments

 Federal, state and local agencies have broad powers to

protect the public health

 Michigan’s 45 local health departments have the primary

responsibility to protect human health within their jurisdictions

State Health Director’s Role  MDCH Director provides leadership for local

public health services throughout state  MDCH provides systems or services where

statewide administration most effective 

E.g. Michigan Disease Surveillance System

 MDCH staff provide consultation, guidance  MDCH Director is authorized to act throughout the

state, should situation warrant

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Powers Relating to Disease Prevention and Control  Conduct surveillance  Require reporting  Inspect or investigate  Impose measures to control the spread of disease  Go to court  Adopt rules

Reporting Requirements  Physicians  Laboratories  Health Facilities  Permissive reporting by other health professions, infection

control professionals, administrators of health facilities, etc.  Schools, child daycare centers, camps  Health departments

Power to Inspect or Investigate (1)  Responsibility of local health department to initiate

an investigation as necessary.  Must advise MDCH when investigating a report of

TB disease, apprise MDCH of progress and provide reports.

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Power to Inspect or Investigate (2)  Inspect or investigate “any matter, thing, premises,

   

place, person, record, vehicle, incident, or event” to ensure compliance with laws Review confidential information Obtain specimens Conduct contact investigations Notify exposed individuals

Investigations – identifiable health information  Investigator shall promptly be provided with

medical and epidemiological information for: Individuals who have/suspected of having TB disease Individuals, whether sick or well, who are part of group in which TB has occurred  Individuals who may have been exposed  Other individuals where information is needed for investigation into cause or occurrence of disease  

 The patient’s consent or authorization is not

required.

HIPAA Privacy General Rule: A covered entity may not use or disclose protected health information except as permitted or required by the HIPAA privacy regulations.  Health Insurance Portability and Accountability Act

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Permitted Disclosures Related to Prevention of Spread of TB  To Public Health Authorities for the purpose of

preventing and controlling disease as authorized by State Law.  To avert a serious threat to health or safety.  To carry out a warrant or court order

Memorandum State Health Director, Jim Haveman  Explains requirements under state law with regard to

disclosure of health information for the prevention and control of disease.  Explains that HIPAA does not alter state requirements.  HIPAA recognizes that health providers may rely, if reliance is reasonable, on the statement of the government regarding the legal authority under which the protected health information is requested.

Health Department Responsibility to protect private health information Medical and epidemiological information which identifies an individual and which is gathered in connection with an investigation is confidential and is not open to public inspection without the individual's consent or the consent of the individual's legally authorized representative, unless public inspection is necessary to protect the public health as determined by a local health officer or the director. Communicable Disease Rules, R 325.181(2)

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Investigations  Obtaining Specimens 

MDCH or LHD may obtain or require that specimens be obtained for testing in the course of an investigation.

 Contacts 

Because TB disease is spread through the air from one person to another, a contact investigation must be conducted. Public health departments are empowered and required to identification and notify individuals who may have been exposed TB.

Preventing the Spread of TB: Public Health Responsibilities  May institute appropriate isolation or other barrier

precautions for a case or suspected case of TB disease as necessary to protect the public, household members or others at risk of exposure.  May initiate exclusion from work or school while a risk to other students.

Treatment of TB  Public Health Code requires local health

department to immediately furnish care to an individual in its jurisdiction who requires care, REGARDLESS of the individual’s domicile

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Legal Action to Compel Compliance  Warning Notice  Health Department Emergency Order  Court Order

Education Counseling Precautions

Testing Treatment Behavior

Quarantine Isolation Commitment

Warning Notice  Issued against individual who is a health threat to

others

 Requires individual to cooperate in preventing or

controlling transmission of disease

 Notifies individual that if he or she fails to comply,

the health department will seek a court order

 Informs individual that they have a right to a

hearing before court issues order, except in emergency MCL 333.5203

Enforcement Warning Notice • If reasonable grounds to believe that an individual has failed or refused to comply with a warning notice, the health department may petition their circuit court for an order MCL 333.5205(1)

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Protection Individual Rights  Evidentiary hearing  Clear and convincing evidence  Right to counsel; appointed if indigent  Review and recommendation by commitment panel

before individual committed to a facility

 Right to expedited appeal to higher court

Emergency Action Against Carrier Upon the filing of an affidavit by the health officer, the circuit court may order the health department or a peace officer to take an individual whom the court has reasonable cause to believe is a *carrier and is a health threat to others into custody and transport the individual to an appropriate emergency care or treatment facility for observation, examination, testing, diagnosis, or treatment and, if determined necessary by the court, temporary detention. MCL 333.5207(1)  Note: “Carrier” is not to be interpreted as LTBI.

Imminent Danger Order  Issued by health officer  Determine imminent danger  Order necessary action that will avoid, correct or remove

the danger

 Deliver order to “person” authorized or able to take

corrective action

 Provide warning to affected individuals or (where

applicable) post notice at site of danger

 Definition: A condition or practice exists which could

reasonably be expected to cause death, disease, or serious physical harm immediately or before the imminence of the danger can be eliminated through enforcement proceedings otherwise provided…

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Order to Control an Epidemic  Issued by health officer  Must determine that control of an epidemic is

necessary to protect the public health

 Order may prohibit the gathering of people for any

purpose

 Order may establish procedures to be followed by

persons during an epidemic to insure continuation of essential public health services; to control spread of disease  Order may be issued against a local governmental entity

Order to Control an Epidemic: Example  Barrier precautions be used by essential workers

during pandemic influenza

Policemen in Seattle wearing masks made by the Red Cross, during the influenza epidemic. December 1918. Photo of the National Archives

Court Actions  To compel compliance with Warning Notice  To compel compliance with Imminent Danger Order  To compel compliance with Emergency Order to Control

Epidemic

 To obtain warrant to inspect or investigate and to seize

property

 To obtain an injunction  To obtain emergency order against a patient who is a health

threat to others

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Criminal Enforcement  A person who violates an order of a local health officer or

MDCH is guilty of a misdemeanor 

Punishable by imprisonment for not more than 6 months, or a fine of not more than $200, or both

 An individual may be arrested if the violation occurs in the

presence of a police officer, or the police officer has reasonable cause to believe the individual violated the order  Court has power to punish violations of its orders (contempt)

Flowchart of Progressive Legal Interventions

Evidence or Behavior of NonCompliance

Written Warning Verbal Warning (Health (Nurse/Case Officer) Manager)

Written Agreement (Health Officer & Patient)

Written Order (Health Officer)

Petition for Court Order (Health Officer, County Attorney, Circuit Court

Always document the instance of non-compliance - and interventions/actions taken - at each step. Provide education and explanation to patient at each step.

Limitations on Power  Jurisdictional limitations  Constitutional limitations

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Jurisdictional limitations  Local health officers cannot act outside the local health

department’s boundaries  Tribal land or Indian country  Federal land (if state relinquished control)  Foreign Diplomats  International travelers prior to entry into the United States

(before clearing customs)

Constitutional Limitations  Due Process  Substantive  Procedural  Equal Protection  Right to privacy  Freedom of Association  Freedom of Religion

Public Good vs. Individual Quarantine, Isolation & Immunization Police Power  The power of government to impose restrictions on

private rights for the sake of the public welfare, order, and security

 Subject to constitutional limitations, especially to

the requirement of due process and right to equal protection

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Jacobson v Massachusetts The liberty secured by the Constitution on the United States to every person within its jurisdiction does not import an absolute right to each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. 197 US 11 (1905)

Quarantine & Isolation (1) Rock v Carney, 216 Mich 280 (1921):  Woman quarantined by local authorities for 12 weeks.

Lower court upheld exercise of police power.

 Supreme Court reversed, but recognized:

Authority of health officers to quarantine persons infected with diseases either in their homes or in detention hospitals, to continue so long as the diseases are in their infectious state

Quarantine & Isolation (2) Rock v Carney, continued “When sufficient reasonable cause exists to believe that a person is afflicted with a quarantinable disease, there is no doubt of the right of the health authorities to examine into the case . . . remembering that the persons so affected are to be treated as patients, and not as criminals.”

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Questions? THANK YOU FOR LISTENING.

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