1. Isolation and Quarantine: Issues with Liability and Enforcement Cheryl Sbarra Senior Staff Attorney Massachusetts Association of Health Boards and Lisa Crowner, Trainer MDPH-OPEM MHOA Annual Conference, October 22, 2015

2. This information is provided for educational purposes only and is not to be construed as legal advice. Consult your own attorney, or your city or town attorney for legal advice. Disclaimer

3.  Used routinely to control the spread of communicable diseases.  Isolation: Separating people who are ill from other people to prevent the spread of a communicable disease.  Quarantine: Separating and restricting the movement of people who have been exposed to a communicable disease and are not yet ill. Back to Basics of Isolation and Quarantine

4.  G.L. c. 111, s. 95: If a dangerous disease brakes out, the board of health may “cause any sick or infected person to be removed to [a] hospital.  G.L. c. 111, s. 96: A warrant may be issued to any police officer, “requiring him, under the direction of the board of health, to remove any person infected...”  G.L. c. 111, s. 97: Board of health is authorized by law to cause a sick or infected person to be removed to a hospital where, in the opinion of the board, the patient cannot properly be isolated at home. Legal Authority

5. DPH regulations: 105 CMR 300.000: Reportable Diseases and Isolation and Quarantine Requirements:  105 CMR 300.200: “The BOH and DPH are authorized to implement and enforce [isolation and quarantine] requirements.  Police powers to protect health, safety & welfare.  Specific I/Q requirements for various diseases are listed in section 300.300. Procedures: 105 CMR 300.210 (B) – (l)  Educate, voluntary compliance  Written order from BOH  Application for Court Order Legal Authority (cont’d)

6. 1. Person must pose an actual threat to the public.  Exposed to an infections agent (quarantine) or infected with the agent (isolation).  And be in a period of communicability.  Otherwise, there is no compelling state interest. 2. Intervention must be reasonable and effective.  Least restrictive means on containment.  Mass quarantine v. voluntary confinement. 3. Preserve constitutional rights. 4. Provide safe, reasonably comfortable conditions.  Food, shelter, medical care. 5. Reasonable compensation for loss of income. Threshold Requirements

7. I/Q shall take place in the least restrictive setting that complies with the requirements of 105 CMR 300.200. WHY?  Ancillary services and logistical support is crucial.  Law enforcement  Wage replacement systems – who pays?  Delivery systems for food and medical supplies – who pays?  Public education and communication  Protection for health workers  Waste disposal  Protective gear (PPE) Least Restrictive Setting

8. If I/Q is done voluntarily, liability issues are eliminated.  No enforcement necessary. Potential liability issues:  Negligent actions or omissions.  Violation of constitutional rights.  Civil Rights  Due Process  Right to Privacy  Right to Travel  Right to Freedom of Association Liability Issues Surrounding Isolation and Quarantine

9.  Public employers are liable for harm caused by the negligent or wrongful act or omission of any public employee who acted within the scope of his/her employment.  Intentional wrongdoing is not covered.  Public employer: any city, town, county, public health district, regional health district which exercise direction or control over the public employee.  Public employee: an officer or employee of a public employer whether elected, appointed, full or part time, temporary or permanent, compensated or uncompensated. Negligent Acts or Omissions – Mass. Tort Claims Act Chapter 258

10. Mutual Aid Agreements should specify the direction and control  For example: an employee from Town A sent to help Town B might “remain under the direction and control of Town A”.  Written agreement will be evidence to help court determine the direction and control issue. Paid employees doing their regular job are generally under the direction and control of city or town. Exercising Direction and Control

11. 3-pronged test  Freedom from control  Free from supervisory direction and control  Work is done with minimum instruction  Services outside the usual course of employer’s business  Hardest prong to meet.  Worker whose services form a regular and continuing part of employers business  Snow plow company cannot hire snow plow drivers as independent contractors.  Worker is customarily engaged in an independently established trade or business of the same nature as that involved in the service performed. Independent Contractor v. Public Employee

12. To what extent can an person’s liberty be curtailed to protect public health?  U.S. Constitution, state constitutions, federal and state civil rights laws provide for:  Individual due process  Equal protection under the law  Privacy rights  All of which must be balanced against the needs of the community. Constitutional Issues

13. Isolation and quarantine orders trigger due process and equal protection concern.  Government cannot deprive persons of constitutionally protected liberty interests without due process.  Must balance individual rights with governmental right to protect.  Are the government’s actions reasonably calculated to achieve government’s aims.  Was the least restrictive means employed.  Person who is highly contagious with a serious illness may be considered dangerous and subject to involuntary confinement if there is not less restrictive alternative. Due Process and Equal Protection

14. Procedural Due Process  Provide adequate notice of hearing  Provide notice of right to counsel  Provide right to appeal  Provide thorough explanation of why and how person is being confined.  Duration  Location  Method to contest order.  Provide opportunity for person to speak with health official to learn why these procedures are the least restrictive means. Due Process

15.  Wong Wai v. Williamson, a board of health resolution the mandated Chinese residents to be quarantined for bubonic plague unless they submitted to inoculation with a serum violated the equal protection clause of the Constitution.  The only justification offered for singling out Chinese residents was a suggestion that this particular race is more susceptible to the plague than others. Equal Protection Violations

16. Miller v. Town of Hull, Massachusetts, 878 F2d 523(1989) 1 st Circuit Court of Appeals.  Immediate removal of members of the Hull Housing Authority by the Board of Selectmen because the BOS did not like their vote of development of Section 8 housing violated the HHA members First Amendment right to free speech, right to hold office, right to due process. Tortora v. Inspector of Buildings of Tewskbury, 41 Mass. App. Ct 120 (1996),  Threats to have residents’ permit to build on property revoked, to have BOH at the property and to have the residents arrested without seeking a criminal complaint interfered with residents’ right to enjoy their property. Intentional Civil Rights Violations: Massachusetts Cases

17.  Robert Daniels, Phoenix Arizona, July 2006  Andrew Speaker, Atlanta, Georgia, 2007 Case Studies

18.  SARS Quarantine in Toronto Spring 2003  Over 27,000 contacts of cases were quarantined  27 formal quarantine orders needed to be served.  1 formal appeal was processed.  Later withdrawn after purpose of quarantine was more fully explained.  Source: Dr. Bonnie Henry, Associated Medical Officer of Health, Toronto Public Health Voluntary Compliance is the Goal

19. Resources

20. Helpful Background Documents found at: http://www.mass.gov/eohhs/gov/departments/dph/programs/id/epidemiology/rdiq/isolatio n-and-quarantine-requirements.html#specific http://www.mass.gov/eohhs/gov/departments/dph/programs/id/epidemiology/rdiq/isolatio n-and-quarantine-requirements.html#specific  Frequently Asked Questions about Isolation and Quarantine Frequently Asked Questions about Isolation and Quarantine  Summary of Laws and Regulations Relevant to Infectious Disease Surveillance, Reporting and Control Summary of Laws and Regulations Relevant to Infectious Disease Surveillance, Reporting and Control Specific Professional Responsibilities or Jurisdictional Issues  Clinical Activities Related to Infectious Disease Prevention and Control Clinical Activities Related to Infectious Disease Prevention and Control  EMS Responsibilities When Responding to Cases of Infectious Disease (Duty to Treat) EMS Responsibilities When Responding to Cases of Infectious Disease (Duty to Treat)  Community Caretaking Function (Police Powers During Public Emergencies) Community Caretaking Function (Police Powers During Public Emergencies)  Options for Financing Hospital Isolation Options for Financing Hospital Isolation  The Authority of the Massachusetts Department of Public Health to Require Immunization as a Condition for Entry into Schools and to Require Exclusion of Infectious or Susceptible Students Under Isolation and Quarantine Regulations The Authority of the Massachusetts Department of Public Health to Require Immunization as a Condition for Entry into Schools and to Require Exclusion of Infectious or Susceptible Students Under Isolation and Quarantine Regulations Types of Resources Available

21. Resources continued  William A. Hinton State Laboratory Institute to Report an Infectious Disease Emergency 1-617-983-6800  Guide to Surveillance, Reporting and Control http://www.mass.gov/eohhs/gov/departments/dph/programs/i d/epidemiology/rdiq/public-health-cdc-surveillance-and- reporting.html  Legal Documents for Use by Municipal Attorneys and Local Boards of Health When Ordering and Enforcing Isolation http://www.mass.gov/eohhs/gov/departments/dph/programs/i d/epidemiology/rdiq/isolation-and-quarantine- requirements.html

23. Cheryl Sbarra, J.D. Senior Staff Attorney Massachusetts Association of Health Boards sbarra@mahb.org (781)721-0183 Lisa Crowner, Trainer MDPH-OPEM Lisa.Crowner@state.ma.us (508) 984-0619 Contact Information