Authority and Actions of Health Officers to Prevent and Control the Spread of Disease

1. Authority and Actions of HealthOfficers to Prevent and Controlthe Spread of Disease Legal Consultation Meeting October 12, 2007 Denise Chrysler Michigan Department of Community Health

2. Health Officers … and the attorneys who assist them • Using the law to protect the public • Powers of state and local health officers • Limitations on powers • Enforcement of orders • Inter-jurisdictional issues

3. Powers of Health Officers • Defined by Michigan Public Health Code • Public health responsibilities are a joint function of MDCH and local health departments • Both state and local health departments 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

4. State Health Director • MDCH Director provides leadership for local public health services throughout state • MDCH Director has authority to govern actions of local health officers through her orders or MDCH rules • MDCH may exercise its authority where the local health department does not or cannot adequately perform its duties

5. State Health Director, continued If MDCH’s Director determines that conditions anywhere in the state constitute a menace to the public health, she is authorized to take full charge of the administration of applicable state and local health laws, rules, regulations, and ordinances. MCL 333.2251(3)

6. General Powers of Health Officers • Powers necessary and appropriate to perform their duties: • Promoting and safeguarding the public health • Prolonging life • Preventing and controlling the spread of disease

7. Powers Relating to Disease Prevention and Control • Conduct surveillance • Inspect or investigate • Impose measures to control the spread of disease • Go to court • Adopt rules 6

8. Michigan Public Health Code “… shall be liberally construed for the protection of the health, safety, and welfare of the people of this state.” MCL 333.1111(2)

9. Power to Conduct Surveillance • Disease reporting requirements • Syndromic Surveillance Hospital Emergency Departments • Over the Counter Sale of Drugs and Medical Devices • Michigan Health Alert Network

10. Power To Inspect or Investigate • 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

11. Investigations – identifiable health information • Investigator shall promptly be provided with medical and epidemiological information regarding: • Individuals who have/suspected of having disease • Individuals, whether sick or well, who are part of group in which 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 is not required 9

12. 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

13. Permitted Disclosures to Prevent or Control Spread of Disease • 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

14. Memorandum State Health Director, Janet Olszewski • 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.

15. Memorandum State Health Director, Janet Olszewski • 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.

16. Responsibilityto protect private health information Identifiable information 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 guardian, 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)

17. Power to Impose Measures to Control Spread of Disease • Emergency Orders • Warning Notices

18. Power to Issue Emergency Orders • Imminent Danger Order • MCL 333.2251; 333.2451 • Emergency Order to Control an Epidemic • MCL 333.2253; 333.2453 • Order to Abate a Nuisance • MCL 333.2455 14

19. Imminent Danger Order • 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

20. Imminent Danger …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…

21. Imminent Danger Orders • Powerful • Effective • Fast • Flexible

22. Director Olszewski has issued orders to prevent animal carriers from infecting humans Monkeypox Order(2003) Also, order regarding pet rodents that carry lymphocytic choriomeningitis virus (LCMV) (2005)

23. Flu Vaccine Shortage • Flu Vaccine Order • Issued October 14, 2004 • Ordered all health care providers to limit influenza vaccinations to persons in high risk categories

24. Airline Passenger With Measles • Exposure of 279 passengers on Northwest Flight 39 from Amsterdam to Detroit

25. Order Requiring Production of Manifest • Order issued on March 14, 2004 • Required Northwest Airlines to immediately provide the Department with names and contact information on all passengers and crew members of Flight 39 • Health officials used information to contact individuals to inform them of exposure and provide information on reducing possibility of infection

26. Order to Control an Epidemic • Determine that control of an epidemic is necessary to protect the public health • Issue an order • To prohibit the gathering of people for any purpose • To establish procedures to be followed by persons during an epidemic to insure continuation of essential public health services; to control spread of disease • May be issued against a local governmental entity • May also issue a “warning notice” for involuntary detention and treatment of individuals with hazardous communicable disease

27. Example: barrier precautions be used by essential workers Policemen in Seattle wearing masks made by the Red Cross, during the influenza epidemic. December 1918. Photo of the National Archives

28. Decisions and Recommendations … If only they were this easy

29. Warning Notice Against Carrier of Disease • Issued against a carrier 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 individual will have a right to a hearing before court issues order, except in emergency MCL 333.5203

30. Civil Enforcement – Power to Go to Court • 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 • Emergency petition for court order against a carrier

31. Obtaining Warrant to Inspect or Investigate & Seize Property • Application for warrant may be filed by State or Local Health Department • Issued by Magistrate based on facts stated in affidavit • May authorize property to be seized • May direct law enforcement to assist health department in inspection or investigation

32. 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)

33. Criminal Enforcement • A person who violates an order of MDCH is guilty of a misdemeanor. • MCL 333.2261 • 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. • MCL 764.15(1) • No criminal penalty in Public Health Code for violation of local health officer’s order

34. Administrative Enforcement • Compliance Order • Authority to adopt schedule of administrative fines

35. Power to Make Rules • MDCH – promulgating rules under the Administrative Procedures Act • Communicable Disease Rules • Local Health Departments – adopting regulations under the Public Health Code • Rules have the force of law

36. Limitations on Power • Jurisdictional limitations • Constitutional limitations

37. Jurisdictional limitations • Local health officers cannot act outside the local health department’s boundaries • Indian land • Federal land (if state relinquished control) • Foreign Diplomats • International travelers prior to entry into the United States (before clearing customs)

38. 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)

39. Constitutional limitations • Due Process • Substantive • Procedural • Equal Protection • Right to privacy • Freedom of Association • Freedom of Religion

40. Multi- and Inter-jurisdictional Issues • Governor’s declaration disaster or emergency • Michigan Department of Community Health • Local Health Departments • Local School Boards • Universities • Federal government (Homeland Security, CDC, Agriculture, FDA, etc.)

42. Planning, protocols and agreements • Plan … Plan … Plan… • Response Plans • Operations Plans • Mutual Aid Agreements • Exercise…Exercise…Exercise • Incident Command

43. Resources? “You have done so much with so little for so long that I’d like you to move on to doing everything with nothing.”

44. Thank you for your attention. Denise Chrysler (517) 373-2109 Chryslerd@michigan.gov