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Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties (2018)

Chapter: II. Legal Considerations for Communicable Disease Response Planning

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Suggested Citation:"II. Legal Considerations for Communicable Disease Response Planning." National Academies of Sciences, Engineering, and Medicine. 2018. Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties. Washington, DC: The National Academies Press. doi: 10.17226/25227.
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Suggested Citation:"II. Legal Considerations for Communicable Disease Response Planning." National Academies of Sciences, Engineering, and Medicine. 2018. Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties. Washington, DC: The National Academies Press. doi: 10.17226/25227.
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Suggested Citation:"II. Legal Considerations for Communicable Disease Response Planning." National Academies of Sciences, Engineering, and Medicine. 2018. Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties. Washington, DC: The National Academies Press. doi: 10.17226/25227.
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Suggested Citation:"II. Legal Considerations for Communicable Disease Response Planning." National Academies of Sciences, Engineering, and Medicine. 2018. Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties. Washington, DC: The National Academies Press. doi: 10.17226/25227.
×
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Suggested Citation:"II. Legal Considerations for Communicable Disease Response Planning." National Academies of Sciences, Engineering, and Medicine. 2018. Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties. Washington, DC: The National Academies Press. doi: 10.17226/25227.
×
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Suggested Citation:"II. Legal Considerations for Communicable Disease Response Planning." National Academies of Sciences, Engineering, and Medicine. 2018. Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties. Washington, DC: The National Academies Press. doi: 10.17226/25227.
×
Page 10
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Suggested Citation:"II. Legal Considerations for Communicable Disease Response Planning." National Academies of Sciences, Engineering, and Medicine. 2018. Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties. Washington, DC: The National Academies Press. doi: 10.17226/25227.
×
Page 11
Page 12
Suggested Citation:"II. Legal Considerations for Communicable Disease Response Planning." National Academies of Sciences, Engineering, and Medicine. 2018. Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties. Washington, DC: The National Academies Press. doi: 10.17226/25227.
×
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Suggested Citation:"II. Legal Considerations for Communicable Disease Response Planning." National Academies of Sciences, Engineering, and Medicine. 2018. Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties. Washington, DC: The National Academies Press. doi: 10.17226/25227.
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5 of certain statutes and regulations was conducted between two independent research team members to guarantee quality control and systematic data and information collection. The research team de- veloped an initial draft report, which was reviewed by project consultants. 3. Case law pertaining to airports was searched, including civil rights suits based on 42 U.S.C. § 1983, actions for liability based on quarantine and contact-tracing activities, as well as false imprison- ment. However, only limited specific and relevant case law was identified regarding these issues. Alternatively, maritime cases were reviewed for analogous topics or decisions, but no recent cases addressed liability, causes of action for activities related to quarantine, search, screening, and other activities related to communicable disease investi- gation and control. 4. The research team drafted and revised the report between September and December 2017, based on feedback from the Airport Cooperative Research Program (ACRP) topic panelists as well as project consultants. 5. The research team completed the final version of the report, addressing all comments point-by-point and finalizing all edits required in March 2018. II. LEGAL CONSIDERATIONS FOR COMMUNICABLE DISEASE RESPONSE PLANNING A. Identification and Reporting of Ill Passengers Disease identification and reporting are essential public health functions to prevent the spread of communicable disease. A contagious passenger or crew member infected with certain communicable diseases could expose hundreds of people within hours if permitted to board a plane, walk freely within an airport, board connecting flights, or enter the local community. As a result of their professional responsibilities at airports, numerous individuals are in a position to identify potential signs of communicable diseases. Airline crew may observe that a passenger or fellow crew member is showing signs of a communicable disease prior to departure (e.g., at the ticket counter or gate) or during a flight. But specific legal pro- cesses must be considered in communicable disease preparedness plans to follow the proper identifica- tion and reporting protocols for airline personnel. In-Flight Reporting Obligations and Notification Procedures Federal regulations set forth pilots’ obligations to report deaths or illnesses that occur during inbound international and domestic interstate flights.9 If the crew confirms, while airborne, that a passenger has died or is suspected to be infected with a communi- cable disease, the flight attendant must promptly notify the pilot in command.10 Figure 1 illustrates CDC guidelines for pilots and flight attendants for identifying and reporting ill travelers who have spe- cific symptoms or conditions. International Civil Avi- ation Organization (ICAO) procedures require pilots of international flights to notify air traffic services (ATS) of suspected cases of communicable disease or other public health risks onboard aircraft.11 The pilot notifies the nearest reachable ATS unit, which in turn immediately relays the report to the ATS units serving the destination and departure airports.12 The ATS units at the destination and departure airports then notify the local public health authority, the air- craft operator, and the airport authority.13 The Federal Aviation Administration (FAA) and CDC are parties to a 2010 Memorandum of Agree- ment (FAA-CDC MOA) that establishes a notifica- tion process for deaths or illnesses onboard international and interstate flights that complies with both ICAO procedures for international flights and U.S. federal regulations. The FAA-CDC MOA applies to all international and domestic flights arriving in the United States. Under the FAA-CDC MOA,14 the pilot in command contacts ATS regard- ing any suspected cases of communicable disease, onboard deaths, or other public health risks.15 FAA then notifies the CDC Emergency Operations Cen- ter (EOC) of the suspected cases via the Domestic Events Network (DEN), a 24/7 conference call sys- tem sponsored by the FAA.16 The EOC contacts the 9 42 C.F.R. §§ 70.4, 70.11, 71.21(b). Although these regu- lations specify to whom pilots should report, pilots satisfy their reporting obligations by following agreed-upon notifi- cation procedures between FAA and CDC, discussed below. 10 “Commander” of an aircraft is another term used in the federal regulations to refer to the pilot in command. 42 C.F.R. § 71.1 (2017). 11 Int’l Civil Aviation Org. [ICAO], Procedures for Air Navigation Services – Air Traffic Management, at 16-7, ICAO Doc. 4444 (16 ed. 2016), http://flightservicebureau. org/wp-content/uploads/2017/03/ICAO-Doc4444-Pans- Atm-16thEdition-2016-OPSGROUP.pdf. 12 Id. 13 Id. 14 Memorandum of Agreement Between CDC and FAA (Oct. 25, 2010) (on file with CDC). 15 42 C.F.R. § 70.11(a) (2017); Memorandum of Agreement Between CDC and FAA (Oct. 25, 2010) (on file with CDC). 16 Memorandum of Agreement Between CDC and FAA (Oct. 25, 2010) (on file with CDC); Centers For Disease Control anD Prevention, CDC Death and Disease Reporting Tool for Pilots, CDC.Gov, https://www.cdc.gov/quarantine/ air/reporting-deaths-illness/pilots.html (last visited Mar. 12, 2018).

6 CDC quarantine station with jurisdiction for the arrival airport, which in turn contacts the airline’s designated point of contact for details regarding the illness or death.17 CDC then coordinates a response with state and local health authorities.18 Figure 1. Reporting to CDC for All Deaths or Ill Travelers with the Following Symptoms19 The Council of State and Territorial Epidemiolo- gists (CSTE)20 and CDC’s Division of Global Migra- tion and Quarantine (DGMQ) have agreed on a bidirectional notification framework regarding com- municable diseases associated with international or interstate travel on commercial conveyances that may pose a public health threat.21 This notification process facilitates a timely response to situations that may have resulted in the exposure of travelers or communities to a communicable disease and does not replace other notification requirements or pro- cesses.22 The agreement provides parameters under which specific communicable diseases must be reported to CDC/DGMQ and includes time frames for which CDC/DGMQ will notify the applicable state health department(s) of certain diseases. 23 As noted in a previously published ACRP project, ACRP Synthesis 83: Preparing Airports for Commu- nicable Diseases on Arriving Flights, airports learn of potential communicable disease infections on an arriving flight through a variety of channels.24 In a survey of 49 U.S. and Canadian airports, only 19 had received notification of a communicable disease issue on an arriving flight through all three channels spec- ified by ICAO procedures: ATS, the airline, and the national health agency (e.g., CDC for the United States).25 Other scenarios described in the synthesis 17 Centers For Disease Control anD Prevention, CDC Death and Disease Reporting Tool for Pilots, CDC.Gov, https://www.cdc.gov/quarantine/air/reporting-deaths- illness/pilots.html (last visited Mar. 12, 2018). 18 Local health authorities play prominent roles as pub- lic-health partners to airports in responding to communi- cable disease outbreaks. In a 2016 survey investigating cooperation between airports and public health depart- ments in responding to communicable disease incidents that included 51 U.S. airports and the local health depart- ments that serve them, local health departments reported that the duties they most commonly expected to provide to their partner airports included (1) liaising with state health departments/CDC as needed to identify disease agents and arrange for laboratory testing; (2) investigating cases and collecting epidemiological information, including interviewing ill and exposed individuals; (3) instituting control measures (isolation and quarantine or other mea- sures necessary to control disease spread); (4) providing guidance regarding treatment or prophylaxis that may be needed for ill/exposed individuals; (5) providing guidance regarding appropriate personal protective equipment (PPE) and infection control measures; (6) leading public information/messaging efforts in partnership with air- ports; (7) providing guidance on environmental cleaning measures/waste disposal; and (8) collecting environmental samples. smith & GreenberG, supra note 1, at 14–15. 19 Centers For Disease Control anD Prevention, Guidance for Airlines on Reporting Onboard Deaths or Illnesses to CDC, CDC.Gov, https://www.cdc.gov/quarantine/ air/reporting-deaths-illness/guidance-reporting-onboard- deaths-illnesses.html (last visited Mar. 12, 2018). 20 The Council of State and Territorial Epidemiologists (CSTE) is an organization of member states and territo- ries representing public health epidemiologists. CSTE works to establish more effective relationships among state and other health agencies and provide technical advice and assistance to partner organizations and to fed- eral public health agencies such as the Centers for Disease Control and Prevention (CDC). 21 Gilberto F. Chavez, Communicable Diseases of Public Health Concern Among International or Interstate Travelers on Commercial Conveyances: A Framework for Mutual Notification Between CDC and State and Territorial Health Departments, C.ymCDn.Com, http://c.ymcdn.com/sites/www. cste.org/resource/resmgr/PS/11-CC-01.pdf (last visited Mar. 12, 2018). 22 Id. 23 Id. Time frames for reporting will depend on the time frame for the aircraft arrival, disease severity and trans- missibility, availability of and window period for post- exposure prophylaxis, and logistical issues related to obtaining information. In certain situations, like the issu- ance of an isolation or quarantine order, or the activation of a hospital Memorandum of Agreement within the state health department’s jurisdiction, notification will take place in fewer than 4 hours. 24 smith & GreenberG, supra note 1, at 14–15. 25 Id. Required by U.S. regulations 1. Fever (has a measured temperature of 100.4°F [38°C]† or greater, or feels warm to the touch, or gives a history of feeling feverish) accompanied by one or more of the following: • skin rash • difficulty breathing • persistent cough • decreased consciousness or confusion of recent onset • new unexplained bruising or bleeding (without previous injury) • persistent diarrhea • persistent vomiting (other than air sickness) • headache with stiff neck, or • appears obviously unwell; OR 2. Fever that has persisted for more than 48 hours OR 3. Symptoms or other indications of communicable disease, as the CDC may announce through posting of a notice in the Federal Register.

7 included notification of the suspected case to the air- port through established public health agency (e.g., CDC) protocols, local health officials, emergency responder agencies, and fire departments, among other sources.26 Thus, airport communicable disease plans must account for the receipt of information regarding suspected cases of communicable disease from numerous official and unofficial channels. B. Measures to Detect Communicable Disease Surveillance Surveillance is the process of observing and moni- toring travelers for signs and symptoms of illness. Public health authorities at airports routinely use passive and sometimes implement active surveil- lance to detect communicable diseases.27 Passive sur- veillance refers to information received by quarantine stations or public health authorities without direct requests for such information.28 For instance, an air- line ticketing or gate agent may point out a traveler with suspicious signs or symptoms to a medical or public health officer. Federal Customs and Border Protection (CBP) agents are in an especially good position to notice signs and to ask about symptoms as passengers travel through customs in an airport. They can detain travelers while public health or medical officers are contacted for further investiga- tion.29 In contrast, active surveillance refers to mea- sures that may be taken in response to reports of an outbreak of a communicable disease in a particular region of the world.30 These measures are taken to evaluate the risks posed by travelers arriving from the affected locale and could involve medical or pub- lic health officers meeting travelers for visual obser- vation and interviews upon deplaning.31 Primary and secondary screening procedures may be conducted at airports during outbreaks of communicable disease in order to prevent the spread of disease. Primary screening involves the use of non-invasive procedures to monitor and prevent the spread of communicable diseases among travelers passing through not only airports but also train sta- tions, seaports, and bus terminals.32 The primary screening process entails such activities as visually observing travelers, taking their temperatures, and reviewing completed public health questionnaires to gauge their risk. In contrast to secondary screening, primary screening can be conducted by personnel without professional health training, such as U.S. Department of Homeland Security (DHS) agents (e.g., Immigration and Customs Enforcement (ICE) or CBP), airport staff, airline employees, and law enforcement.33 However, CDC can provide further training to equip these partners to screen for spe- cific communicable diseases, as the agency did dur- ing the 2014 Ebola outbreak.34 At international airports with quarantine stations, CDC staff might be responsible for overseeing screening procedures.35 Secondary screening generally entails (1) a detailed public health interview by a public health profes- sional and (2) a physical exam and second tempera- ture reading.36 Non-Invasive Procedures Once the plane lands, CDC, local and state health authorities, and local law enforcement or emergency medical services (EMS; for interstate flights) or CBP (for international flights) will coordinate a response for a suspected case of communicable disease. Under its delegated authority to control and prevent the spread of quarantinable communicable diseases,37 CDC is empowered to detain, medically examine, and conditionally release travelers crossing state or U.S. territorial borders when it has a reasonable suspicion that a passenger has shown signs or symptoms of a quarantinable communicable disease.38 CDC will con- duct an evaluation of the ill passenger at the quaran- tine station located at the airport39 (see Figure 2 for a 33 See generally int’l Civil aviation orG., imPlementinG exit sCreeninG at an airPort oF a Country, with initial Cases oF ebola virus Disease transmission (FaCilitator GuiDe) (2015); see generally Centers For Disease Control anD Prevention, ebola virus Disease (ebola) Pre- DeParture/exit sCreeninG at Points oF DeParture in aFFeCteD Countries (INTERIM) (Aug. 30, 2014). 34 Clive M. Brown et al., Airport Exit and Entry Screening for Ebola, 63(49) MMWR 1163, at 1163–67 (2014). 35 oak riDGe inst. For sCi. anD eDuC., supra note 27, at 11. 36 See generally Centers For Disease Control anD Prevention (ebola), supra note 33. 37 As specified in Exec. Order No. 13,295, 68 Fed. Reg. 17,255 (Apr. 4, 2003), amended by Exec. Order No. 13,375, 70 Fed. Reg. 17,299 (Apr. 1, 2005), amended by Exec. Order No. 13,674, 79 Fed. Reg. 45,671 (July 31, 2014), federal quarantinable communicable diseases include: cholera, diphtheria, infectious tuberculosis, plague, smallpox, yel- low fever, viral hemorrhagic fevers, severe acute respira- tory syndromes, and influenza caused by novel or reemer- gent influenza viruses that are causing, or have the potential to cause, a pandemic. 38 42 C.F.R. §§ 70.1, 70.6, 71.1, 71.32(a), 71.33 (2017). 39 If there is no CDC quarantine station at the receiving airport, the ill passenger will be evaluated at the nearest hospital. 26 Id. at 15. 27 oak riDGe inst. For sCi. anD eDuC., u.s. DeP’t oF transP., National Aviation Resource Manual for Quarantinable Diseases, 11 (2006). 28 Id. 29 Id. 30 Id. 31 oak riDGe inst. For sCi. anD eDuC., supra note 27, at 11. 32 42 C.F.R. §§ 70.10, 71.20 (2017).

8 map of the CDC-staffed quarantine stations located at U.S. airports40). These stations are managed by CDC’s DGMQ and are staffed with medical and pub- lic health officers from CDC.41 In airports without quarantine stations, the Officer in Charge and the Quarantine Medical Officer at the regional quaran- tine station would remotely provide technical guid- ance to local or state public health authorities.42 Figure 2. CDC-Staffed Quarantine Stations Located at U.S. Airports43 stage (i.e., in a communicable stage or, if its spread would cause a public health emergency, in a precom- municable stage).44 In addition to its authority with respect to interstate travelers, CDC may, among other measures, quarantine, isolate, and place under surveillance travelers entering the country when CDC officials have a reasonable basis to believe such travelers have been exposed to, or are infected with, a quarantinable communicable disease.45 Travelers placed under surveillance must provide information on their health status and travel plans while submitting to temporary monitoring (e.g., electronic, internet-based) and if required, medical examinations.46 Further, CDC may issue orders to authorize a variety of non-invasive procedures for the prevention of disease spread.47 These proce- dures are carried out by authorized public health workers and can range from visually assessing a traveler’s ears, nose, and mouth to taking his or her temperature.48 Absent informed consent, more inva- sive measures, such as those involving breaking the skin or inserting an instrument or foreign object into the body, cannot be taken.49 Travelers who show signs of a quarantinable disease or are determined to be at risk of infection based on their responses to public health questionnaires may be denied aircraft boarding and referred to secondary screening.50 Airport communicable disease plans may need to include screening scenarios that require space and infrastructure at airports for certain screening activities. For example, one consideration may be whether screening activities are feasible before pas- sengers enter security screening due to space limita- tions. If such limitations exist, other areas or space may be needed. Invasive Procedures with Consent At the quarantine station, CDC can examine the ill passenger to evaluate whether he or she has a quarantinable disease. An ill passenger may be taken to a local hospital for further evaluation and diagnostic testing by healthcare providers subject to the passenger’s informed consent.51 If tests are posi- tive for the suspected quarantinable communicable disease, the passenger will remain in isolation.52 40 In addition to the sixteen quarantine stations both located at the airport and staffed by CDC’s DGMQ, there are four other U.S. quarantine stations in San Diego, CA; El Paso, TX; Boston, MA; and Dallas, TX; however, these four are either not located at the airport (San Diego, El Paso) or not staffed by CDC’s DGMQ (Boston falls under the jurisdiction of the New York quarantine station, and Dallas falls under the jurisdiction of Houston). U.S. Gov’t aCCountability oFF., GAO-16-127, air travel anD CommuniCable Disease: ComPrehensive FeDeral Plan neeDeD For u.s. aviation system’s PrePareDness 21 (2015), https:// www.gao.gov/assets/680/674224.pdf; Centers For Disease Control anD Prevention, U.S. Quarantine Stations, CDC. Gov, https://www.cdc.gov/quarantine/quarantine-stations- us.html (last visited Mar. 12, 2018). 41 See generally Centers For Disease Control anD Prevention, Division of Global Migration and Quarantine, CDC.Gov, https://www.cdc.gov/ncezid/dgmq/index.html (last visited Mar. 12, 2018). 42 hollis stambauGh et al., national aCaDemies oF sCienCes, enGineerinG, anD meDiCine, Quarantine Facilities for Arriving Air Travelers: Identification of Planning Needs and Costs 4 (2008); oak riDGe inst. For sCi. anD eDuC., supra note 27, at 7. 43 See generally U.S. Gov’t aCCountability oFF., GAO-16- 127, air travel anD CommuniCable Disease: ComPrehensive FeDeral Plan neeDeD For u.s. aviation system’s PrePareDness (2015), https://www.gao.gov/assets/680/674224.pdf. 44 42 C.F.R. § 70.6(a) (2017). 45 Id. §§ 71.32(a), 71.33. 46 Id. § 71.33(c)(1). 47 42 C.F.R. §§ 70.10, 71.20 (2017). 48 Id. §§ 70.1, 70.10(a), 71.1(b), 71.20(a). 49 Id. §§ 70.12(b), 71.36(b). 50 See generally Centers For Disease Control anD Prevention (ebola), supra note 33. 51 42 C.F.R. §§ 70.12, 71.36 (2017). 52 Id. §§ 70.12(d), 71.36(d). While CDC is authorized to apprehend, examine, quarantine, or isolate interstate travelers reason- ably believed to have a quarantinable communicable disease and who the agency determines pose a threat of infection to others, these measures are justified only if the quarantinable disease is in a qualifying

9 A scenario involving a non-compliant infectious passenger would require intensive coordination between CDC and state, tribal, or local health offi- cials, and involve each entity’s respective legal coun- sel to balance protecting the public’s safety with the passenger’s civil rights. The legal requirements for such a scenario may also change if an emergency dec- laration is issued (see Section V of this digest, The Changing Legal Environment During Emergencies). C. Contact Tracing Contact tracing investigations involve the identifi- cation of persons who have come into contact with an infected individual in order to limit or prevent the spread of a communicable disease. Quarantine officers determine whether the ill passenger (called the index case) was potentially contagious during the flight. The confirmation is based on the specific disease, history of symptoms, and duration of the flight. In cases of inter- state or foreign travel, usually the CDC quarantine station that first received the report of the ill passen- ger will coordinate the contact tracing investigation in collaboration with local health authorities. In coordinating an investigation, CDC can issue a written order requiring international flight operators to furnish certain data for passengers or crew that the agency believes to have been exposed to a quaran- tinable communicable disease.54 Required data on the requested manifest include the passenger’s (or crew member’s) name, sex, birth date, country of resi- dence, passport information (if a passport is required), travel document information (if a travel document besides a passport is required), address (permanent U.S. residence or address while in the United States), telephone numbers, email address, itinerary, and seat number.55 For international flights, CDC may request information available from DHS databases to com- plement data received from airlines, such as to verify or obtain passenger contact information not included in the manifest. If data are not available in DHS databases, CDC may require (as part of the manifest order) airlines to provide any available traveler con- tact information. The number of travelers for whom contact data are requested is based on disease-spe- cific criteria [listed in 42 C.F.R. § 71.1(b)].56 D. Regulations to Control Communicable Diseases: Isolation and Quarantine Federal Isolation and Quarantine Procedures CDC enforces federal isolation and quarantine laws that apply to travelers crossing state lines or arriving from foreign countries or territories. Quar- antine separates people exposed to a quarantinable disease—but who are not yet confirmed to be infected or contagious—and restricts their move- ments while they are observed for signs of infec- tion.57 Isolation involves separating confirmed, infected cases from non-infected persons to prevent spread of the communicable disease.58 As detailed previously, contact tracing helps to identify individ- uals who may need to be quarantined based on potential exposure. These interventions are limited to specific communicable diseases specified in Exec- utive Order 13295: cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, viral hemorrhagic fevers, severe acute respiratory syn- dromes, and influenza caused by novel or reemer- gent influenza viruses that are causing, or have the potential to cause, a pandemic.59 In order to quaran- tine or isolate a traveler arriving in the United States from a foreign country or territory, CDC must have reason to believe that the traveler has been infected with or exposed to a quarantinable commu- nicable disease.60 Quarantining or isolating an inter- state traveler, however, requires a reasonable belief that the traveler is infected with a quarantinable communicable disease in a qualifying stage61 and (1) is moving or is about to move between states or (2) constitutes a probable source of infection to other travelers who may be moving between states.62 57 Centers For Disease Control anD Prevention, Quarantine and Isolation, CDC.Gov, https://www.cdc.gov/ quarantine/index.html (last visited Mar. 12, 2018). 58 Id. 59 Exec. Order No. 13,295, 68 Fed. Reg. 17,255 (Apr. 4, 2003), amended by Exec. Order No. 13,375, 70 Fed. Reg. 17,299 (Apr. 1, 2005), amended by Exec. Order No. 13,674, 79 Fed. Reg. 45,671 (July 31, 2014); Centers For Disease Control anD Prevention, Executive Order 13,295: Revised List Of Quarantinable Communicable Disease, CDC.Gov, https://www.cdc.gov/sars/quarantine/exec-2004-04-03. html (last visited Mar. 12, 2018); Centers For Disease Control anD Prevention, Legal Authorities for Isolation and Quarantine, CDC.Gov, https://www.cdc.gov/quarantine/ aboutlawsregulationsquarantineisolation.html (last vis- ited March 12, 2018). 60 42 C.F.R. § 71.32(a) (2017). 61 Under 42 U.S.C. § 264(d)(2) and 42 C.F.R. § 70.1, the qualifying stage of a quarantinable communicable disease is in its communicable stage or its precommunicable stage if the disease would be likely to cause a public health emergency if transmitted to others. 62 42 C.F.R. § 70.6 (2017). 53 See, e.g., worlD health orG., emerGenCy GuiDeline imPlementation anD manaGement oF ContaCt traCinG For ebola virus Disease (2015), http://apps.who.int/iris/ bitstream/10665/185258/1/WHO_EVD_Guidance_ Contact_15.1_eng.pdf?ua=1. 54 42 C.F.R. § 71.4(a) (2017). 55 Id. § 71.4(b). 56 42 C.F.R. § 71.4 (2017); Joanna J. Regan et al., Tracing Airline Travelers for a Public Health Investigation: Middle East Respiratory Syndrome Coronavirus (MERS-CoV) Infection in the United States, 2014, 131 PubliC health reP. 552, at 553–54 (2016).

10 Federal orders for isolation, quarantine, or condi- tional release must be issued in writing, signed by the CDC Director or designee, and served on the affected person or persons within 72 hours of appre- hension (with publication or posting in a conspicu- ous location substituting for individual service if the federal order applies to an affected group and indi- vidual service is impracticable).63 The order must explain the reasons for the restrictions (particularly the classification of the communicable disease as quarantinable).64 For purposes of interstate quaran- tine only, the order must specify that the affected person is in the qualifying stage of the quarantin- able communicable disease and either is moving (or about to move) between states or constitutes a prob- able source of infection to persons moving between states.65 Affected persons can challenge the order, including using constitutional due process actions alleging deprivation of liberty and state and federal actions for writ of habeas corpus.66 As needed, CDC must have the order translated or interpreted for the benefit of affected persons with language barri- ers or cognitive challenges.67 Federal orders for quarantine, isolation, or condi- tional release must be reassessed within 72 hours of being served on the affected person.68 This reassess- ment, which is conducted by the CDC Director or des- ignee, though it cannot be the same official who signed the order, involves a review of all documents used as a basis to isolate the person and any new information to decide whether there are less restrictive ways to pro- tect the public health.69 The reassessment may result in the quarantine, isolation, or conditional release being continued, modified, or rescinded.70 If, after reassessment, the federal order for quar- antine, isolation, or conditional release is continued or modified, the CDC Director or designee must arrange for a medical review as soon as practicable if the affected person requests one.71 The medical review is to discover whether the CDC Director rea- sonably believes that the affected person is infected with a quarantinable communicable disease in a qualifying stage.72 Designated by someone other than the CDC official who issued the isolation, quarantine, or conditional release order, the medical reviewer examines the evidence presented, orders the affected person to undergo a medical examination if the reviewer believes it necessary to assess the person’s medical condition, and considers whether less restric- tive alternatives would protect public health.73 The affected person is allowed an advocate, such as an attorney, to submit evidence on his or her behalf as well as medical experts (subject to the medical reviewer’s discretion); if the affected person is indi- gent, these representatives will be appointed at the government’s expense.74 The affected person or per- son’s representatives are given a reasonable opportu- nity to review the available records pertinent to the medical review.75 After conducting the review, the medical reviewer makes findings of fact and recom- mends whether the order for quarantine, isolation, or conditional release should be rescinded, continued, or modified.76 The ultimate decision to rescind, continue, or modify the order is made by the CDC Director or designee (excluding the official who issued the order for quarantine, isolation, or conditional release).77 Federal Isolation and Quarantine Sites On and Off Airport Property CDC provides guidance on quarantine, but quar- antine is typically established and maintained by local health authorities. Although individuals exposed to communicable disease are often condi- tionally released (i.e., allowed to complete their trav- els and report to their local health authority when travel is completed), quarantine is sometimes neces- sary. In rare circumstances, quarantine may be established on the airport’s property for a short period of time until other arrangements can be made (e.g., to quarantine an entire plane). Factors to con- sider in designating a quarantine area onsite include: • location (e.g., space, transport to facility, im- pact on airport operations), • accommodations (e.g., continuous and backup power sources, heating, A/C, sanitation), • communications, • supplies (e.g., food, water, bedding), • staffing, and • services (e.g., security, language and cultural needs, dietary restrictions, religious needs).78 Plans should also provide for thorough decontami- nation of quarantine sites after use, particularly if the space was converted temporarily for health purposes.79 63 Id. §§ 70.14 (a)–(b), 71.37(a)–(b). 64 Id. §§ 70.14(a)(3), 71.37(a)(3). 65 Id. § 70.14(a)(3)–(4). 66 U.S. Const. amends. V, XIV; 28 U.S.C. § 2241 (2017). 67 42 C.F.R. §§ 70.14(c), 71.37(c) (2017). 68 42 C.F.R. §§ 70.15(a), 71.38(a) (2017). 69 Id. §§ 70.15(a)–(c), 71.38 (a)–(c). 70 Id. §§ 70.15(d), 71.38(d). 71 Id. §§ 70.16(a)–(b), 71.39(a)–(b). 72 Id. §§ 70.16(c), 71.39(c). 73 Id. §§ 70.16(e), (i), (j), 71.39(e), (i), (j). 74 Id. §§ 70.16(f), 71.39(f). 75 Id. §§ 70.16(g), 71.39(g). 76 Id. §§ 70.16(e), 71.39(e). 77 Id. §§ 70.16(m), 71.39(m). 78 See generally stambauGh et al., supra note 42. 79 Id.

11 In some cities with international airports, CDC makes flexible contractual arrangements in the form of MOAs with local hospitals that meet certain eligibility requirements to ensure their capacity to manage persons with quarantinable diseases.80 If an MOA hospital is not available or unable to receive an ill traveler for isolation, then the quarantine sta- tion coordinates with local health authorities and EMS to select an alternate facility.81 Airport commu- nicable disease preparedness plans should take into account the potential use of MOA hospitals in the area, as well as the logistics and partnerships needed to transport ill travelers to such facilities. An EOC may coordinate response efforts and communi- cation between the airport and other jurisdictions and response facilities.82 If isolation (or quarantine, if needed) is estab- lished off the airport’s property, EMS can transport ill passengers to the facility selected by local health authorities in collaboration with CDC. However, communicable disease preparedness plans should also examine procedures for using buses or shuttles to transport ill or quarantined persons to the desig- nated facility.83 In such circumstances, the personal protection of vehicle operators and other attendants, for example, using personal protective equipment (PPE), should be considered. Plans should also rec- ognize the potential need for security or law enforce- ment to deal with non-compliant travelers, to protect operations, and to secure the area in order to pre- vent contamination.84 Vehicles may also need to be properly decontaminated after use.85 State, Tribal, and Local Isolation and Quarantine State, tribal, and local authorities also exercise isolation and quarantine powers within their jurisdictions, though CDC may intervene when such authorities lack the capacity to control a communi- cable disease.86 States have primary authority for applying isolation and quarantine measures within their borders due to their police powers.87 Police pow- ers enable state authorities to promote public health and safety through the passage of laws that may restrict an individual’s rights for the common good under certain circumstances.88 States may have enacted general disease isolation and quarantine laws, specific disease laws (e.g., for tuberculosis), and/or public health emergency (PHE) declarations allowing for isolation and quarantine,89 but these laws may be operationalized by the local health department. Local health departments may be tasked with actual isolation and quarantine mea- sures in consultation with the state health depart- ment. Appendix B: State and Local Quarantine and Isolation Laws of the 10 Busiest U.S. Airports, includes specific isolation and quarantine statutes for the states with the 10 U.S. airports that handle the most passengers per year. The table includes statutes providing the authority to isolate and quar- antine. Where applicable, the table also lists statutes regarding penalties for failing to follow an isolation or quarantine order (e.g., two years’ probation in Cal- ifornia) and limitations or additional requirements (e.g., in Texas, payment of medical expenses by the government if the individual cannot pay). In some situations, federal and state quarantine powers may overlap. For instance, an international flight arriving with an ill passenger at the airport of a major city may be subject to quarantine measures implemented by the health authorities of federal, state, and/or local governments. Such overlapping powers require advance and real-time coordination and collaboration. E. Decontamination Procedures Authority for Decontamination Procedures Authority for decontamination processes lie with several government entities. The U.S. Department of Health and Human Services (HHS) Secretary can develop rules for preventing the introduction and spread of communicable diseases to the United States from other countries or across state and ter- ritorial borders.90 Enforcement methods include 80 laura b. sivitz et al., institute oF meDiCine, Quarantine stations at Ports oF entry: ProteCtinG the PubliC’s health 50 (2006). “Most of the time, the Quarantine Core and the LPHA agree upon next steps. Infrequently, the Quarantine Core believes a patient should be hospitalized for evalua- tion, but the LPHA either disagrees or lacks the resources and authority to mandate such evaluation. Under these cir- cumstances, the Core has the federal authority to order hospital-based evaluation and monitoring of the patient. To prepare for such eventualities, the Core has entered into memoranda of agreement (MOAs) with more than 130 hos- pitals near ports of entry around the country.” 81 Id. 82 Fed. Aviation Admin., Airport Emergency Plan, AC 150/5200-31C (2009). 83 Although large-scale quarantine situations (e.g., mass quarantines of entire flights) occur only under unusual circumstances, communicable disease prepared- ness plans nevertheless should consider the possibility of such situations. 84 Centers For Disease Control anD Prevention (ebola), supra note 33, at 6. 85 stambauGh et al., supra note 42, at 12. 86 42 C.F.R. § 70.2 (2017). 87 JareD Cole, ConG. researCh serv., RL33201, FeDeral anD state Quarantine anD isolation authority, 6 (2014), https://fas.org/sgp/crs/misc/RL33201.pdf. 88 Jorge Galva et al., Public Health Strategy and the Police Powers of the State, 120 PubliC health reP. 20, at 20 (2005). 89 A.R.S. §§ 36-624, 36-787, 36-726 (2017). 90 42 U.S.C. § 264(a) (2017).

12 inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of infected animals or contaminated things.91 Additionally, when state and local health authorities are unable to control the spread of communicable disease across state or territorial borders, the CDC Director and Food and Drug Administration (FDA) Commissioner can implement appropriate measures to prevent further transmission, including inspection, fumigation, dis- infection, sanitation, pest extermination, and destruction of animals and items suspected of caus- ing the infection.92 Disinsection of Aircraft Although CDC has the authority to require disin- section of international flights suspected of carrying vector-borne communicable diseases from infected areas,93 CDC does not recommend routine disinsec- tion inside commercial passenger airplanes to pre- vent the spread of vector-borne disease. Moreover, the U.S. Environmental Protection Agency (EPA) has not currently approved any pesticides for use in passenger cabins on commercial aircraft.94 The World Health Organization (WHO) and ICAO per- mit and describe methods for aircraft disinsection, and some countries require disinsection of aircraft arriving from countries with insect-borne diseases (e.g., malaria, yellow fever) whereas others routinely carry out disinsection to prevent the inadvertent introduction of harmful insect species. When required by CDC, and under its oversight, airlines and pilots are responsible for disinsecting their aircraft with approved insecticides upon land- ing.95 Disinsection of the aircraft must be accom- plished immediately after the craft has landed.96 The cargo compartment must be disinsected before the mail, baggage, and other cargo are discharged, and the rest of the aircraft must be disinsected after passengers and crew have deplaned.97 Decontamination of Passengers, Articles, and Things If CDC believes that any arriving persons on an international flight have been exposed to or are infected with a quarantinable communicable disease, the agency has authority to order their isolation, quarantine, surveillance, disinfection, disinfestation, or fumigation (though disinfection, disinfestation, and fumigation are not routine practices).98 If CDC suspects that an aircraft arriving from another country or anything onboard has been con- taminated by a communicable disease, the agency can order the aircraft or anything onboard (e.g., luggage) to be detained, disinfected, disinfested, fumigated, or subjected to other disease control measures.99 Most decontamination procedures depend on available information before the arrival of a contaminated plane. Airlines, airport authorities, and other agencies typically follow standard operating procedures for decontamination processes of an aircraft and facilities unless directed or instructed otherwise. While CDC may coordinate with numerous other federal agencies and provide guideline recommendations for decon- tamination, it will usually defer to the airline’s (or plane owner’s) protocol. Relevant considerations include safety of any pesticide for the aircraft and its equipment, as well as controlling the chemical expo- sure of the crew and airline employees. The notification process is a crucial component in this situation. Key entities—CDC, state and local health departments, airport-based emergency response units, airport or municipality EOC, and airport or airport authority personnel—need to maintain open and effective communication in coor- dinating a response. An airport communicable dis- ease preparedness plan should clearly delineate in advance any procedures for potential scenarios. For example, if the plane is not able to reach an alter- nate location, a contaminated aircraft could land as scheduled but not be connected to a gate. Under extraordinary circumstances, the plane might instead be directed to a more remote location at the airport (e.g., airport apron) where the ill passenger could be deplaned first, minimizing exposure to other airport passengers, employees, and first responders. The ill passenger could then be quickly transferred to an ambulance while exposed passen- gers, crew, and airport employees would stay onboard or be removed to a location pending further guid- ance from CDC and local responders. Decontamination of a contaminated plane is pathogen-specific and fact-dependent. In most cases, the airline will have to work with CDC to identify potential risks, locations within the parked plane that need to be addressed (e.g., passenger areas and cargo holds), when the plane can be refueled, and relocation of the plane to an airline hub with more advanced facilities as needed. In preparation for a contaminated 91 Id. 92 42 C.F.R. § 70.2 (2017); 21 C.F.R. § 1240.30 (2017). 93 42 C.F.R. § 71.44(a) (2017). 94 United States Environmental Protection Agency (USEPA), Pesticide Registration - PRN 96-3: Pesticide Products Used to Disinsect Aircraft, https://www.epa.gov/ pesticide-registration/prn-96-3-pesticide-products-used- disinsect-aircraft (last visited Mar. 12, 2018). 95 42 C.F.R. § 71.44 (2017). 96 Id. § 71.44(c). 97 Id. § 71.44(c)(1)–(2). 98 Id. § 71.32(a). 99 Id. § 71.32(b).

13 aircraft’s arrival at a hub facility, advance notification of airline operators, managers, and maintenance facil- ity personnel helps ensure safe decontamination. Procurement and Distribution of Decontamination Devices A public health preparedness goal under the National Health Security Strategy (NHSS) is building federal, state, local, and tribal capacities for disease containment. Along with isolation, quarantine, and social distancing, decontamination is a listed compo- nent of disease containment.100 The administrator of the Federal Emergency Management Agency (FEMA) may obtain and maintain decontamination devices and grant or loan these devices to states for emergency preparedness purposes.101 Equipment, resources, and expertise may then be made available to airports and airlines in the event that FEMA is activated during a declared emergency to support airline and airport efforts during emergency response efforts. F. Safety of Airport Employees The Occupational Safety and Health Administra- tion (OSHA) sets and enforces standards regarding safe conditions in the workplace. Across the 50 states and the District of Columbia, most private sector employees are covered by OSHA directly or by an approved state plan. However, state and local govern- ment agency employees are not covered by OSHA, but have OSH Act protections if they work in a state with an OSHA-approved state plan. Furthermore, OSHA rules allow states and territories to develop plans that cover state and local government employ- ees separately. Five states (i.e., Connecticut, Illinois, Maine, New Jersey, and New York) and one U.S. terri- tory (i.e., Virgin Islands) have specific OSHA- approved state plans that cover only state and local government employees. The private sector workers in these five jurisdictions are covered by Federal OSHA rather than by the approved state plan. Federal employees are also subject to OSHA protections. Airport communicable disease preparedness plans may address compliance with federal or state safety requirements for their private employees and state or municipality employees. Employers are required to implement a training program to educate employ- ees about exposure to hazardous substances includ- ing infectious agents that they may be exposed to at work. The training is to be provided at no cost to the employee and conducted during work hours.102 Employers covered by OSHA standards must have, and implement, written safety and health plans for their employees. The plans must incorporate an organizational structure, a work plan, a safety and health plan, a training program, a medical surveil- lance program, and standard operating procedures for health and safety. The plan must also be available to the employer’s contractors and subcontractors.103 FAA published a policy statement in 2013 that stated that the agency had not exercised its statutory authority over all working conditions that affect air- craft cabin crew members while the aircraft is in oper- ation.104 This statement is important because OSHA is precluded from implementing its occupational stan- dards if another federal agency has already exercised statutory authority in that area.105 FAA permitted OSHA to apply its occupational and safety standards in specific areas, including those standards concern- ing hazard communication, bloodborne pathogens exposure, and occupational noise exposure.106 OSHA has established a set of standards that apply to certain industries, including specific guid- ance for the airline industry and airport employees.107 The specific OSHA regulations for airports addresses the storage and handling of hazardous substances and materials. These standards detail which employ- ees risk exposure to hazardous substances as part of their job responsibilities. Typical responsibilities under the standards include clean-up operations, dis- posal of hazardous waste, and emergency responses to the release of hazardous substances. Hazardous substances include biological and disease-causing agents that can cause death, illness, or other behav- ioral and genetic disorders in employees when con- sumed, inhaled, or otherwise assimilated.108 For example, in 2006, OSHA issued Guidance Update on Protecting Employees from Avian Flu (Avian Influenza) Viruses.109 OSHA Publication 3323-10N-2006 provides procedures for protecting 103 Id. § 1910.120(b)(1). 104 Occupational Safety and Health Standards for Aircraft Cabin Crewmembers, 78 Fed. Reg. 52,848 (Aug. 27, 2013) (to be codified at 14 C.F.R. pts. 91, 121, 125, 135). 105 29 U.S.C. § 653(4)(b)(1) (1970). 106 U.S. Dep’t of Labor, Fed. Aviation Admin., Memorandum of Understanding Between the Federal Aviation Administration, U.S. Department of Transportation, and the Occupational Safety and Health Administration, Faa.Gov, https://www.faa.gov/about/initiatives/ashp/media/ FAA_OSHA_MOU_2014.pdf (2014). 107 U.S. Dep’t of Labor, Occupational Health and Safety Admin., Airline Industry, osha.Gov, https://www.osha.gov/ SLTC/airline_industry/standards.html (last visited Mar. 12, 2018). 108 29 C.F.R. § 1910.120 (2017). 109 U.S. Dep’t of Labor, Occupational Safety and Health Administration, OSHA Guidance Update on Protecting Employees from Avian Flu (Avian Influenza) Viruses, osha.Gov, https://www.osha.gov/Publications/3323-10N- 2006-English-07-17-2007.html (last visited Mar. 12, 2018). 100 42 U.S.C. § 300hh–1 (2017). 101 Id. § 5196(i)(4). 102 29 C.F.R. § 1910.1030(g)(2) (2017).

Next: III. Legal Authorities for Roles and Responsibilities »
Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties Get This Book
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TRB's Airport Cooperative Research Program (ACRP) Legal Research Digest 34: Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties addresses the legal issues concerning the measures to detect communicable diseases, regulations to control communicable diseases, methods for decontamination, emergency legal preparedness, privacy, and potential sources of liability. This digest provides a checklist that airport attorneys and other staff can use to help prepare, plan, and coordinate with their partners in response to a threat of a communicable disease.

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