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February 16, 2017

Reforming Federal Public Health PowersResponding to National and Global Threats

Author Affiliations
  • 1O’Neill Institute for Global and National Health Law, Georgetown University Law Center, Washington, DC
  • 2Public Health Law and Policy Program, Sandra Day O’Connor College of Law, Arizona State University, Phoenix
JAMA. Published online February 16, 2017. doi:10.1001/jama.2017.1021

On January 19, 2017, the day before President Donald Trump’s inauguration, the Centers for Disease Control and Prevention (CDC) published a final rule on communicable diseases.1 The new rule enhances federal powers to detect, test, apprehend, quarantine, and isolate international and domestic travelers while expanding due process safeguards. Although public health powers should be grounded in science, they also invoke fundamental values of personal liberty and privacy. A decade-long process of modernizing federal rules has been mired in controversy.

Operating under the antiquated Public Health Service Act (1944),2 the CDC first sought to modernize federal powers in 2005 and again in 2012, but the proposed rules failed to gain public support. The agency issued another proposed rule on August 15, 2016, which attracted 15 800 public comments. Civil libertarians demanded stronger due process protections, while the travel industry raised concerns about regulatory costs in tracing potentially ill travelers.

The CDC’s decision to publish a final rule before the inauguration reflected uncertainty over the incoming administration’s national security policies.3 These concerns have only been heightened by President Trump’s recent executive order barring travelers from 7 Muslim-majority countries from entering the United States for 90 days while suspending admission of refugees for 120 days. This executive order is currently under litigation. The Trump Administration has pressed for major changes to the final rule such as enhanced travel restrictions, intensive screening of travelers, or weakened due process. The new administration, moreover, could have delayed modernizing federal public health powers indefinitely. Given the continued domestic presence of the Zika virus and globally circulating pathogens, the CDC has promulgated ambitious reforms.

Modern Disease Control Powers

The Public Health Service Act authorizes the CDC to detain, medically examine, and quarantine persons traveling into the United States or between states if they are suspected of carrying specific communicable diseases designated by executive order (eg, plague, smallpox, Ebola).4 Responding to criticism, the new rule incorporates major changes. Federal powers are primarily reserved for declared health emergencies, as well as a “communicable disease event” with (1) significant potential for disease spread or (2) the possibility of “causing death or serious illness if not properly controlled.” Upgraded prevention measures center on airports and other transit hubs. The agency formalized active screening introduced during the Ebola outbreak, including observation, questioning, and review of travelers’ documents and health records. Airline and other travel industry personnel must monitor and report cases of illness or death.

Under the new rule, federal public health powers now extend to anyone the CDC reasonably believes to be exposed to or infected with specified communicable diseases. Federal public health or border control agents may initially apprehend individuals with direct signs or symptoms (eg, fever, rash, headache, and persistent cough) of illness, and these individuals can be held for as long as 72 hours. The CDC can isolate or quarantine such individuals pending a medical review. The agency must afford confined individuals medical testing, treatment, and other accommodations at the government’s expense (unless health insurers or others are obligated to pay).

These new regulations enhance federal powers and responsibilities to coordinate an effective response to diseases that cross national or state borders. Although the rule stresses cooperation with tribal, state, and local authorities, federal agents can now intervene directly. States’ police powers are primarily used to safeguard the public’s health, but the CDC is uniquely positioned to control outbreaks that transcend borders.

Policy, Politics, and Law

The exercise of public health powers (eg, vaccines, medical testing, contact tracing, isolation, and quarantine) has been politically controversial. During the 2014 Ebola outbreak, some political leaders urged travel restrictions and border controls. Mr Trump, for example, questioned whether US health workers returning from Ebola-affected countries should be barred from entering the country. Connecticut Governor Dan Malloy authorized a 21-day preemptive quarantine of individuals returning from Ebola-affected countries. A federal court in Connecticut later overturned the quarantine of a nurse returning home.5

The 2016 Zika outbreak triggered new calls for quarantines despite the absence of significant risk. Congress delayed an emergency appropriation for the Zika response for 9 months while Puerto Rico was experiencing a major epidemic, and mosquito-transmitted infections emerged in Florida. The CDC’s new rule cannot prevent overreactions or delayed responses to public health crises, but it clarifies the scope and use of federal powers to control the spread of infectious diseases.

Imperfect But Politically Possible

The CDC’s regulations may have been the best the agency could have achieved politically, but they are imperfect. The final rule contains major improvements from prior drafts, including removing a clause compelling individuals’ agreement with the CDC’s unilateral terms for treatment or confinement. Licensed health professionals must perform medical examinations with the individual’s informed consent. The CDC also must provide confined individuals with basic necessities and means of communication. The agency increased due process safeguards, including access to independent medical experts and legal counsel. The government must pay for legal representation for individuals who cannot afford it. The CDC’s appellate officers must consider outside witnesses and other evidence and determine whether less restrictive alternatives to confinement are available. A federal agent assessing the justification for isolation or quarantine must be different from the person who made the initial determination.

Despite major improvements, the final rule could have been stronger. Medical officers must only hold a “reasonable belief” to apprehend an individual. Yet the US Supreme Court has required “clear and convincing” evidence for civil confinements.6 The absence of an independent hearing prior to confinement remains a significant deficiency. The CDC’s own officers will conduct the review of confinement, which contravenes basic tenets of procedural due process7—its analogy comparing the CDC’s internal review process to those of hospital review committees is inappropriate. Whenever affected individuals face the loss of liberty at the hand of government, they deserve due process guarantees. The CDC should have granted quarantined or isolated individuals access to an independent hearing with a clearer pathway to the courts.

The new rules also raise federalism concerns if the CDC intervenes without tribal, state, or local approval. Even during emergencies, the practice of public health is a shared responsibility. The CDC may feel pressure from the political branches to intervene, but failure to gain state or local cooperation could undermine the effectiveness of the intervention. States and localities have the experience, staff, and facilities for implementing quarantines while the CDC rarely exercises compulsory powers.

Committing to Health Security

As a matter of law, a new administration has near unfettered authority to change or entirely abandon proposed rules. However, this is a final rule that will take effect on March 21, 2017, and the Trump administration cannot easily amend or revoke it without an evidence base and an intensive period of public comment and review. Modern emergency powers are essential not only to public health but also to national security. The law must afford health officials all the power reasonably needed to detect and respond to pathogenic threats while affording constitutional safeguards of liberty and privacy.

Although modern powers and constitutional restraints are necessary, so too is the capacity of public health agencies to effectively intervene. Sustainable funding of federal, tribal, and state public health agencies is crucial for safeguarding the public’s health. Thus far, the signs are not encouraging. Congressional action to repeal and replace the Affordable Care Act could eliminate the Prevention and Public Health Fund, which funnels millions of dollars to the CDC and to states for prevention.8 In the absence of a standing public health emergency fund, Congress could delay or deny needed funding during the next major outbreak. The CDC and state health agencies were barely able to withstand a long congressional delay in funding Zika preparedness and response. The United States may not be so fortunate the next time a public health crisis emerges, which is why reliable public health funding remains a high priority.

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Article Information

Corresponding Author: Lawrence O. Gostin, JD, Georgetown University Law Center, 600 New Jersey Ave NW, McDonough 568, Washington, DC 20001 (gostin@law.georgetown.edu).

Published Online: February 16, 2017. doi:10.1001/jama.2017.1021

Conflict of Interest Disclosures: Both authors have completed and submitted the ICMJE Form for Disclosure of Potential Conflicts of Interest and none were reported.

References
1.
Control of Communicable Diseases. Fed Regist. 2017;82(12):6890-6978. To be codified at 42 CFR §70 and §71.
2.
Public Health Service Act, 42 USC § 6A (2016).
3.
Gostin  LO, Friedman  EA.  Global health: a pivotal moment of opportunity and peril. Health Aff (Millwood). 2017;36(1):159-165.PubMedArticle
4.
Executive Order 13 295 of April 4, 2003: Revised List of Quarantinable Communicable Diseases. Fed Regist. 2003;68(68):17255.
5.
Mayhew v Hickox, FORDC-CV-2014-36, 2014 US (D Maine 2014).
6.
Addington v Texas, 441 US 418, 425 (1979).
7.
Foucha v Louisiana, 504 US 71, 72 (1992).
8.
O'Donnell  J. Obamacare repeal threatens public health funding to states. USA Today. January 16, 2017. http://www.usatoday.com/story/news/politics/2017/01/16/obamacare-repeal-threatens-public-health-funding-states/96535262/. Accessed February 6, 2017.
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