FEDERAL CONTROL OF COMMUNICABLE DISEASES

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17.1 Summary

Under section 361 of the Public Health Service Act (42 U.S.C. § 264), the United States Secretary of Health and Human Services (HHS Secretary) is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the U.S. and between states. This authority has been delegated to the Centers for Disease Control and Prevention (CDC). CDC is authorized to detain, medically examine, and release individuals coming into the U.S. and traveling between states who are suspected of carrying certain communicable diseases. CDC and United States Department of Homeland Security (DHS) have developed a public health Do Not Board (DNB) list and Public Health Boarder Lookout (Lookout) to prevent individuals with certain communicable diseases from entering, leaving, or traveling within the U.S. CDC has also issued criteria for requesting federal travel restrictions for public health purposes.

CDC has published a Questions and Answers about the Final Rule for Control of Communicable Diseases: Interstate (Domestic) and Foreign Quarantine.

17.2 Federal Authority

The United States Secretary of Health and Human Services (HHS Secretary) is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the U.S. and between states under section 361 of the Public Health Service Act (42 U.S.C. § 264). This authority has been delegated to the Centers for Disease Control and Prevention (CDC). CDC updated its regulations regarding control of interstate and foreign communicable disease in 2017. Under 42 Code of Federal Regulations parts 70 and 71, CDC is authorized to detain, medically examine, and release persons arriving into the U.S. and traveling between states who are suspected of carrying certain communicable diseases. Under this authority, CDC routinely monitors individuals in the U.S. for signs or symptoms of communicable diseases. If a quarantinable disease is suspected or identified, CDC may issue a federal isolation or quarantine order. An individual may be conditionally released from quarantine if they comply with medical monitoring and surveillance. See Legal Authorities for Isolation and Quarantine.

CDC exercised its isolation and quarantine authority in 2020 during the novel coronavirus pandemic. See COVID-19: Current Travel Restrictions and Quarantine Measures; Covid-19 — The Law and Limits of Quarantine.

17.3 Interstate Quarantine

17.3.1    Definitions

  • “Quarantinable communicable disease” is one of the diseases listed in an Executive Order and is currently limited to cholera, diphtheria, infectious tuberculosis (TB), plague, smallpox, yellow fever, and viral hemorrhagic fevers (such as Marburg, Ebola Virus Disease (EVD), Lassa fever, and Crimean-Congo), severe acute respiratory syndromes (SARS), and influenza caused by novel or re-emergent influenza viruses that are causing or have the potential to cause a pandemic). 42 C.F.R. § 70.1, Executive Order 13295 (April 4, 2003), as amended by Executive Order 13375 (April 1, 2005) and Executive Order 13674 (July 31, 2014).
     
  • “Reasonably believed to be infected” is specific articulable facts upon which a public health officer could reasonably draw the inference that an individual has been exposed, either directly or indirectly, to the infectious agent that causes a quarantinable communicable disease and that as a consequence of the exposure, the individual is or may be harboring in the body the infectious agent of that quarantinable communicable disease. 42 C.F.R. § 70.1.
     
  • “Qualifying stage” is (1) the communicable stage of a quarantinable communicable disease, or (2) the precommunicable stage of the quarantinable communicable disease, but only if the quarantinable communicable disease would be likely to cause a “public health emergency” if transmitted to other individuals. 42 C.F.R. § 70.1.
     
  • “Precommunicable stage” is the stage beginning upon an individual's earliest opportunity for exposure to an infectious agent and ending upon the individual entering or reentering the communicable stage of the disease or, if the individual does not enter the communicable stage, the latest date at which the individual could reasonably be expected to have the potential to enter or reenter the communicable stage. 42 C.F.R. § 70.1.
     
  • “Public health emergency” is:
    (1) Any communicable disease event as determined by the CDC Director with either documented or significant potential for regional, national, or international communicable disease spread or that is highly likely to cause death or serious illness if not properly controlled; or
    (2) Any communicable disease event described in a Department of Health and Human Services (HHS) public health emergency declaration pursuant to the Public Health Service (PHS) Act; or
    (3) Any communicable disease event the World Health Organization (WHO) is notified about that may constitute a Public Health Emergency of International Concern (PHEIC); or
    (4) Any communicable disease event the WHO determines to be a PHEIC; or
    (5) Any communicable disease event for which the WHO issues temporary or standing recommendations for preventing or detecting the occurrence or reoccurrence of the communicable disease.
    42 C.F.R. § 70.1.
     
  • “Non-invasive” is procedures conducted by an authorized public health worker (i.e., an individual with education and training in the field of public health) or another individual with suitable public health training, and includes the visual examination of the ear, nose, and mouth; temperature assessments using an ear, oral, cutaneous, or noncontact thermometer, or thermal imaging; and other procedures not involving the puncture or incision of the skin or insertion of an instrument or foreign material into the body or a body cavity excluding the ear, nose, and mouth. 42 C.F.R. § 70.1.
     
  • “Conditional release” is the temporary supervision by a public health official or designee of an individual or group who may have been exposed to a quarantinable communicable disease to determine the risk of disease spread, including public health supervision through in-person visits, telephone, or through electronic or Internet-based monitoring. 42 C.F.R. § 70.1.
     
  • “Medical examination” is the assessment of an individual by an authorized and licensed health worker to determine the individual's health status and potential public health risk to others and may include the taking of a medical history, a physical examination, and collection of human biological samples for laboratory testing as may be needed to diagnose or confirm the presence or extent of infection with a quarantinable communicable disease. 42 C.F.R. § 70.1.

See section 8.2 of the Manual for quarantine and isolation definitions.

17.3.2    Apprehension and Detention of Person with Quarantinable Communicable Disease 

The CDC Director may authorize a person’s apprehension, medical examination, quarantine, isolation, or conditional release when the person is reasonably believed to be infected with a quarantinable communicable disease in a qualifying stage and is:

  • Engaging or about to engage in interstate travel; or
  • A probable source of infection to others who may be engaging in interstate travel.

42 C.F.R. 70.6(a).

Individuals who have been apprehended or held in quarantine or isolation must be provided with adequate food and water, appropriate accommodation, appropriate medical treatment, and means of necessary communication. 42 C.F.R. 70.6(b).

Some legal scholars have criticized the “reasonable belief” standard provided in 42 C.F.R. § 70.6(a) for federal quarantine authority, arguing that it provides the federal government with too much enforcement discretion. They point to the Supreme Court’s decision in Foucha v. Louisiana, 504 U.S. 71 (1992), where the court explained that involuntary commitment does not violate the constitutional rights of people with mental illnesses when there is sufficient evidence to conclude that they have a mental illness and present a danger to themselves or others, as providing the proper standard: government officials should have to prove that the person has a quarantinable communicable disease and presents a risk of harm to public health in order to avoid potential constitutional due process violations.

17.3.3    Measures in the Event of Inadequate Local Control 

If the CDC Director determines that the measures taken by state or territorial health authorities are not sufficient to prevent the spread of communicable diseases to other states or territories, the CDC Director may take measures to prevent the spread of such diseases as deemed reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection. 42 C.F.R. § 70.2.

17.3.4    Public Health Prevention Measures to Detect Communicable Disease

The CDC Director may conduct public health prevention measures at U.S. airports, seaports, railway stations, bus terminals, and other locations where individuals may gather to engage in interstate travel, through non-invasive procedures deemed appropriate by the CDC Director to detect the presence of communicable diseases. 42 C.F.R. § 70.10(a). The CDC Director may require individuals to provide contact information such as addresses, telephone numbers, email addresses, and other contact information, information regarding their intended destination, health status, known or possible exposure history, and travel history. 42 C.F.R. § 70.10(b).

17.3.5    Medical Examinations

The CDC Director may require an individual to undergo a medical examination as part of a federal order for quarantine, isolation, or conditional release for a quarantinable communicable disease. 42 C.F.R. § 70.12(a). As part of the federal order, the individual must be advised that the medical examination, which must be promptly arranged, will be conducted by an authorized and licensed health worker, and with prior informed consent. 42 C.F.R. § 70.12(b).

As part of the medical examination, the individual may be required to provide information and undergo such testing as may be reasonably necessary to diagnose or confirm the presence or extent of infection with a quarantinable communicable disease. 42 C.F.R. § 70.12(c). Individuals reasonably believed to be infected based on the medical examination results may be isolated. If such results are inconclusive or unavailable, individuals may be quarantined or conditionally released in accordance with 42 C.F.R. part 70. 42 C.F.R. § 70.12(d).

At CDC’s sole discretion and subject to the availability of appropriations, the CDC Director may authorize payment for the care and treatment of individuals subject to medical examination, quarantine, isolation, or conditional release. 42 C.F.R. § 70.13(a)-(b).

17.3.6    Requirements Related to Federal Orders for Quarantine, Isolation, or Conditional Release 

A federal order authorizing quarantine, isolation, or conditional release must be in writing, signed by the CDC Director and contain the following:

  • The identity of the individual or group subject to the order;
  • The location of the isolation or quarantine or, in the case of conditional release, the entity to and means by which the individual must report for public health supervision;
  • An explanation of the factual basis underlying the CDC Director’s reasonable belief that the individual is in the qualifying stages of a quarantinable communicable disease;
  • An explanation of the factual basis underlying the CDC Director’s reasonable belief that the individual is moving or about to move from one state into another or constitutes a probable source of infection to others who may be moving from one state into another;
  • An explanation that the federal order will be reassessed no later than 72 hours after it has been served, as well as an explanation of such medical review, including the right to request a medical review, present witnesses and testimony at the medical review, be represented at the medical review by either an advocate (e.g., an attorney, family member, or physician) at the individual’s own expense, or, if indigent, have representatives appointed at the government’s expense;
  • An explanation of the criminal penalties for violating a federal order of quarantine, isolation, or conditional release; and
  • An explanation that if a medical examination is required as part of the federal order, the examination will be conducted by an authorized and licensed health worker, and with the individual’s prior informed consent.

42 C.F.R. § 70.14(a).

A federal order authorizing quarantine, isolation, or conditional release must be served on the individual no later than 72 hours after the individual has been apprehended, except that the federal order may be published or posted in a conspicuous location if the federal order is applicable to a group and individual service would be impractical. 42 C.F.R. § 70.14(b). Translation or interpretation services must be arranged by the CDC Director as needed. 42 C.F.R. § 70.14(c).

17.3.7    Mandatory Reassessment of Federal Orders for Quarantine, Isolation, or Conditional Release

No later than 72 hours after service of the federal order, the CDC Director must reassess the need to continue the quarantine, isolation, or conditional release of an individual. 42 C.F.R. § 70.15(a). As part of the reassessment, CDC must:

  • Review all records considered in issuing the federal order, including travel records, records evidencing exposure or infection with a quarantinable communicable disease, as well as any relevant new information; and
  • Consider and make a determination regarding whether less restrictive alternatives would adequately serve to protect public health.

42 C.F.R. § 70.15(b).

Upon a request by an individual under federal quarantine, isolation, or conditional release, the CDC Director must arrange for a medical review as soon as practicable. Such request may only occur after the CDC Director’s mandatory reassessment under 42 C.F.R. § 70.15 and following service of a federal order continuing or modifying the quarantine, isolation, or conditional release. The purpose of the medical review is to determine whether the CDC Director has a reasonable belief that the individual is infected with a quarantinable communicable disease in a qualifying stage. 42 C.F.R. § 70.16(a)-(c). The medical reviewer is a physician, nurse practitioner, or similar medical professional qualified in the treatment and diagnosis of disease who is appointed by the HHS Secretary or the CDC Director provided that the employee differs from the CDC official who issued the federal order for isolation, quarantine, or conditional release. 42 C.F.R. § 70.1.

42 C.F.R. part 70 does not specify penalties for violations. However, the PHS Act provides penalties for persons who violate regulations promulgated under 42 U.S.C. § 264. Such penalties are a fine of not more than $1,000 or imprisonment for not more than one year, or both. 42 U.S.C. § 271(a).

Nothing in 42 C.F.R. § 70.14 affects the constitutional or statutory rights of individuals to receive judicial review of their federal detention. 42 C.F.R. § 70.14(d).

See Appendix 3.0 for a federal public health orders and interstate travel flowchart.

17.4 Foreign Quarantine

17.4.1    Definitions 

  • “Quarantinable communicable disease” is one of the diseases listed in an Executive Order and currently limited to cholera, diphtheria, infectious TB, plague, smallpox, yellow fever, and viral hemorrhagic fevers (such as Marburg, EVD, Lassa fever, and Crimean-Congo), severe acute respiratory syndromes, and influenza caused by novel or re-emergent influenza viruses that are causing or have the potential to cause a pandemic). 42 C.F.R. § 71.1, Executive Order 13295 (April 4, 2003), as amended by Executive Order 13375 (April 1, 2005) and Executive Order 13674 (July 31, 2014).
     
  • “Non-invasive” is procedures conducted by an authorized public health worker or another individual with suitable public health training and includes the visual examination of the ear, nose, and mouth; temperature assessments using an ear, oral, cutaneous, or noncontact thermometer, or thermal imaging; and other procedures not involving the puncture or incision of the skin or insertion of an instrument or foreign material into the body or a body cavity excluding the ear, nose, and mouth. 42 C.F.R. § 71.1.
     
  • “Conditional release” is surveillance as defined under 42 CFR part 71 and includes public health supervision through in-person visits by a health official or designee, telephone, or through any electronic or internet-based means as determined by the CDC Director. 42 C.F.R. § 71.1.
     
  • “Surveillance” is the temporary supervision by a public health official or designee of an individual or group, who may have been exposed to a quarantinable communicable disease, to determine the risk of disease spread. 42 C.F.R. § 71.1.

17.4.2    Public Health Prevention Measures to Detect Communicable Disease 

The CDC Director may conduct public health prevention measures at U.S. ports of entry or other locations through non-invasive measures to detect the potential presence of communicable diseases. 42 C.F.R. § 71.20(a). The CDC Director may require individuals to provide contact information such as addresses, telephone numbers, email addresses, and other contact information, as well as information regarding their intended destination, health status, known or possible exposure history, and travel history. 42 C.F.R. § 71.20(b).

17.4.3    Detention of Persons with Quarantinable Communicable Disease 

If the CDC Director has reason to believe that any arriving person is infected with or has been exposed to a quarantinable communicable diseases, such person may be isolated, quarantined, or placed under surveillance. 42 C.F.R. § 71.32(a).

Individuals who have been apprehended or held in quarantine or isolation must be provided with adequate food and water, appropriate accommodation, appropriate medical treatment, and means of necessary communication. 42 C.F.R. § 71.33(a).

17.4.4    Medical Countermeasures 

The CDC Director may require that an individual arriving in the U.S. undergo a medical examination as part of a federal order for quarantine, isolation, or conditional release. 42 C.F.R. § 71.36(a). As part of the medical examination, the individual may be required to provide information and undergo testing reasonably necessary to diagnose or confirm the presence, absence, or extent of infection with a quarantinable communicable disease. 42 C.F.R. § 71.36(c). Individuals reasonably believed to be infected, based on the medical examination results, may be isolated; if such results are inconclusive or unavailable, individuals may be quarantined or conditionally released. 42 C.F.R. § 71.36(d).

At the CDC’s sole discretion and subject to the availability of appropriations, the CDC Director may authorize payment for the care and treatment of individuals subject to medical examination, quarantine, isolation, or conditional release. 42 C.F.R. § 71.30(a)-(b).

17.4.5    Requirements Related to Federal Orders for Quarantine, Isolation, or Conditional Release 

A federal order authorizing quarantine, isolation, or conditional release must be in writing, signed by the CDC Director and contain the following:

  • The identity of the individual or group subject to the order;
  • The location of the isolation or quarantine or, in the case of conditional release, the entity to and means by which the individual must report for public health supervision;
  • An explanation of the factual basis underlying the CDC Director’s reasonable belief that the individual is in the qualifying stages of a quarantinable communicable disease;
  • An explanation of the factual basis underlying the CDC Director’s reasonable belief that the individual is moving or about to move from one state into another or constitutes a probable source of infection to others who may be moving from one state into another;
  • An explanation that the federal order will be reassessed no later than 72 hours after it has been served, as well as an explanation of such medical review, including the right to request a medical review, present witnesses and testimony at the medical review, be represented at the medical review by either an advocate (e.g., an attorney, family member, or physician) at the individual’s own expense, or, if indigent, have representatives appointed at the government’s expense;
  • An explanation of the criminal penalties for violating a federal order of quarantine, isolation, or conditional release; and
  • An explanation that if a medical examination is required as part of the federal order that the examination will be conducted by an authorized and licensed health worker, and with the individual’s prior informed consent.

42 C.F.R. § 71.37(a).

A federal order authorizing quarantine, isolation, or conditional release must be served on the individual no later than 72 hours after the individual has been apprehended, except that the federal order may be published or posted in a conspicuous location if the federal order is applicable to a group and individual service would be impractical. 42 C.F.R. § 71.37(b). Translation or interpretation services will be arranged by the CDC Director as needed. 42 C.F.R. § 71.37(c).

17.4.6    Mandatory Reassessment of Federal Orders for Quarantine, Isolation, or Conditional Release 

No later than 72 hours after service of the federal order, the CDC Director must reassess the need to continue the quarantine, isolation, or conditional release of an individual. 42 C.F.R. § 71.38(a). As part of the reassessment, CDC must:

  • Review all records considered in issuing the federal order, including travel records, records evidencing exposure or infection with a quarantinable communicable disease, as well as any relevant new information; and
  • Consider and make a determination regarding whether less restrictive alternatives would adequately serve to protect public health. 42 C.F.R. § 71.38(b)-(c).

Upon a request by an individual under federal quarantine, isolation, or conditional release, the CDC Director must arrange for a medical review as soon as practicable. Such request may only occur after the CDC Director’s mandatory reassessment under 42 C.F.R. § 71.38 and following service of a federal order continuing or modifying the quarantine, isolation, or conditional release. The purpose of the medical review is to determine whether the CDC Director has a reasonable belief that the individual is infected with a quarantinable communicable disease in a qualifying stage. 42 C.F.R. § 71.39(a)-(c). The medical reviewer is a physician, nurse practitioner, or similar medical professional qualified in the treatment and diagnosis of disease who is appointed by the HHS Secretary or the CDC Director and may include a HHS or CDC employee provided that the employee differs from the CDC official who issued the federal order for isolation, quarantine, or conditional release. 42 C.F.R. § 71.1.

Individuals in violation of 42 C.F.R. part 71 are subject to a fine of no more than $100,000 if the violation does not result in a death or one year in jail, or both. If the violation results in a death, the person is subject to a fine of no more than $250,000 or one year in jail, or both. 42 C.F.R. § 71.2.

See Appendix 3.0 for a federal public health orders and foreign travel flowchart.

17.5 Public Health Do Not Board List

In June 2007, CDC and the United States Department of Homeland Security (DHS) developed a public health Do Not Board (DNB) list to prevent commercial air travel by individuals with certain communicable diseases of public health concern (e.g., TB, measles) arriving into, departing from, or traveling within the U.S. See Federal Air Travel Restrictions for Public Health Purposes --- United States, June 2007--May 2008. The public health DNB list is administered by DHS based on CDC’s requests and is intended to supplement state and/or local public health measures to prevent individuals who are infectious, or reasonably believed to have been exposed to a communicable disease, from boarding commercial aircraft. 80 Fed. Reg. 16400 (March 27, 2015). The communicable disease for which the DNB list may be used are those diseases that would pose a public health threat to travelers if the infected individual was permitted to board a flight. While a state or local health department is usually the initiator of such requests, other agencies, such as the United States Department of State, or foreign public health authorities may also make a request.

Once an individual is placed on the DNB list, airlines are instructed not to issue the individual a boarding pass for any commercial domestic flight or for any commercial international flight arriving into or departing from the U.S. If an individual is able to board regardless of placement on a DNB list, CDC staff are notified upon detection by DHS to facilitate public health intervention. An individual is typically removed from the DNB List upon receipt by CDC of the treating physician’s or public health authority’s statement or other medical documentation that the individual is no longer infectious, or that the period the individual is at risk of becoming infectious without developing symptoms has lapsed. 80 Fed. Reg. 16400 (March 27, 2015).

The public health DNB list does not apply to other forms of transportation, such as buses and trains. See Federal and State Quarantine and Isolation Authority.

See section 17.7 of the Manual for criteria for requesting federal travel restrictions for public health purposes.

17.6 Public Health Border Lookout

The Public Health Border Lookout (Lookout) was also developed by CDC and DHS to ensure that any person placed on the DNB list is found if they try to enter or leave the U.S. through any port of entry. Individuals included on the DNB list are assigned a Lookout record. If an individual on the DNB list tries to enter or depart the U.S. through a port of entry, CDC is notified by U.S. Customs and Border Protection. CDC then notifies state and local public health authorities that a person on the Lookout list has been detected so that a thorough public health inquiry and evaluation can be conducted and appropriate actions taken to protect public health if necessary, including quarantine, isolation, and treatment. See https://www.cdc.gov/quarantine/do-not-board-faq.html.

An analysis of requests for travel restrictions from May 22, 2007 to December 31, 2015 revealed that 396 individuals were placed on the DNB list/Lookout during that time period; the majority were for suspected or confirmed cases of pulmonary TB.

17.7 Criteria for Requesting Federal Travel Restrictions for Public Health Purposes

CDC initially published criteria for consideration when making requests to DHS to include an individual on the DNB list and associated Lookout record in 2008. Updated criteria were published in 2015 in the wake of the 2014 Ebola outbreak. 80 Fed. Reg. 16400 (March 27, 2015).

For an individual to be added to the DNB list, an individual must be known or believed to be infectious with, or at risk for, a serious communicable disease that poses a public health threat to others during travel. In addition, the individual must satisfy one of the following criteria:

  • Not be aware of their diagnosis, have been told of their diagnosis and is non-compliant with public health recommendations, or be unable to locate;
  • Be at risk of traveling on a commercial flight or of traveling internationally by any means; or
  • Need to be placed on the DNB list and Lookout to effectively respond to outbreaks of communicable disease or other conditions of public health concern. 80 Fed. Reg. 16400 (March 27, 2015).

CDC published an FAQ related to the DNB list and Lookout. See https://www.cdc.gov/quarantine/do-not-board-faq.html. It also published questions and answers related to the updated criteria for adding an individual to the DNB list. See https://www.cdc.gov/quarantine/criteria-for-recommending-federal-travel-restrictions.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fquarantine%2Fqas-frn-travel-restriction.html.

Diplomatic privileges and immunities are not intended to benefit individuals but to ensure the efficient and effective performance of their official missions on behalf of their governments. Although diplomatic law dictates certain immunities apply to members of diplomatic missions, the U.S. still has a duty to protect its populace and police authorities may intervene to the extent necessary to prevent the commission of a crime or in instances where public safety is in imminent danger. Immunities are intended to benefit the mission of the foreign government or international organization; therefore, an individual does not “own” his or her immunity and it may be waived, in whole or in part, by the mission member’s government. Additionally, the Department of State may request a waiver of immunity in such cases in which the prosecutor advises that they would prosecute but for immunity. To learn more about diplomatic immunity and specific privileges for the various categories of diplomatic mission personnel, visit https://www.state.gov/wp-content/uploads/2019/07/2018-DipConImm_v5_Web.pdf.



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