Date: September 22, 2002
Source: Seattle Times
Abstract: The state's plan to deal with bioterrorism details the powers of local health officers to quarantine victims of an attack, but fails to answer a critical question: Where would all those people go?
Nowhere in the proposed new rules -- issued by the state Board of Health on the first anniversary of Sept. 11 -- or in existing law does it say how a local health officer would go about confiscating a building, such as a hospital, hotel or other business to house those with a dangerously contagious disease.
And after nearly a year of discussions, no local hospital has agreed to be designated as the place where large numbers of infectious patients could be isolated, despite the guideline from the federal Centers for Disease Control and Prevention (CDC) that local planners designate such a facility before it is needed.
Dr. Alonzo Plough, head of Public Health -- Seattle & King County, says hospital CEOs don't doubt that local health officers have the power to take over a facility.
During the year, hospitals and public-health officials have worked with "great cooperation and collegiality," Plough said, toward a collaborative regional plan for the care of infectious patients.
But hospitals here and around the country continue to voice concerns, many of them economic, about being designated "the" smallpox hospital.
"The hospitals are very reluctant to stand up and say, 'Pick me!' " said Dr. Nancy Auer, vice president of medical affairs for Swedish Medical Center, which operates three hospital campuses in Seattle.
Signing up to be the smallpox isolation and care facility, she said, amounts to signing up to turn away all surgery and immune-suppressed patients, which would include those receiving chemotherapy or organ transplants. The financial impact? "It's enormous," Auer said.
Compensation for lost revenue isn't addressed, she said. "I don't even think there's a (billing) code for smallpox. You could pick 'rash.' Well, there's a big winner."
The Board of Health's plan attempts to pull together outdated laws, codes and rules and meld them with modern due-process protections, such as rights to hearings and appeals.
Dr. Tom Locke, state Board of Health member, acknowledges that clear procedures for "commandeering and expropriating facilities" also are necessary in a comprehensive bioterror response plan. "Where you isolate them, where you quarantine them, is an issue -- it's an inescapable issue."
But for now, the board is not addressing the touchy subject head-on. "You have to establish priorities," Locke said. Besides, he said, the process will work better if a voluntary agreement can be reached.
"We don't want to stage an armed assault of a major urban hospital," said Locke, who also is health officer for Jefferson and Clallam counties. "That's a failure of planning."
In the back of everyone's mind, though: What if "something" happens before there is an agreement? Plough will say only that there's been good progress. "We need a coherent King County plan, which we're marching toward."
These are sensitive discussions, and local health officials all around the country have been struggling to work out agreements, said Dr. Joanne Cono of the CDC's Bioterrorism Preparedness and Response Program. "What's going on in Seattle is not at all unusual," Cono said. "People are working hard on this, and it hasn't been an easy situation."
Health officials say no hospital in the nation has agreed publicly to take large numbers of infectious patients.
At first, some observers assumed Harborview Medical Center, the county hospital, would be the prime candidate here. But CDC guidelines say a designated facility should not be used for any other purpose, and Harborview is the only hospital in the region that can handle the highest level of trauma cases.
Recently, an intriguing option has surfaced: Some hospital administrators are looking at the federally owned Veterans Hospital in Seattle and Madigan hospital at Fort Lewis.
"Looking at?" said one hospital official. "With binoculars!"
This state, like others, drew from the "Model State Emergency Health Powers Act" circulated by the CDC in late 2001 as a template for state bioterror rules. Washington, however, did not adopt its "control of property" section.
That section says the public-health authority can immediately take over a health-care facility if deemed "reasonable and necessary" for emergency response.
Locke said he doesn't like such "one-size-fits-all" rules.
"In Seattle, it will probably involve taking whole hospitals or whole hospital communities as a place for the very acutely ill. In Sequim or Port Angeles, you can't commandeer the hospital, because it's the only one. It would have to be a hotel or some other place."
State of Emergency
Although Washington law does not address specifically the right of officials to confiscate facilities, or outline the procedure, Senior Assistant Attorney General Joyce Roper said the governor has broad powers under a declaration of emergency. Local health officers also have broad authority to "control and prevent the spread of any dangerous, contagious or infectious diseases that may occur within his or her jurisdiction."
Because the liberty of individuals is constitutionally protected, the state needed to spell out due-process rights in the rules for isolation and quarantine, Roper said. But taking over a hospital -- and the economic impact -- is a different matter.
"We don't see a fundamental constitutional interest at stake here, as compared to taking away somebody's liberty," Roper said.
However, a Washington state court case on compensation for an emergency confiscation, though not of a hospital, is on appeal. "We'll see if the court says we were right or wrong," Roper said.
So for now, the state Board of Health plans to stay narrowly focused on questions surrounding isolation and quarantine of individuals.
Regarding the proposed rules on quarantine and isolation, the state is generally going in the right direction, said Roger Leishman, an attorney who reviewed the plan for the American Civil Liberties Union.
For example, while a health officer has the power to order someone into quarantine for 10 days, the person has the right to a court hearing within 72 hours of requesting one.
But Leishman and others say draft language is sometimes overly broad. For example, the definition of "contaminated," he said, covers any material posing long-term health hazards.
"Nutrasweet or cigarettes fall under that definition," he said.
Leishman doesn't expect the Health Department to start slapping smokers into isolation. "But the problem is when you use language that's that broad, it could be used down the road. ... The real goal here should be to have the words say what they mean, to give clear guidance to health professionals trying to do their job."
In other sections, the draft specifies that a quarantined person who becomes infected with a "communicable or possibly communicable disease" must be promptly placed in isolation.
"Someone quarantined because they've been exposed to biological threats shouldn't be placed in isolation because they have a cold or Hepatitis C," Leishman said.
Another section tries to respect religious beliefs, saying that people have the right to rely on "spiritual means" to treat a communicable disease. But it limits those rights to those who ascribe to a "well-recognized church or religious denomination."
"We should be careful to accommodate even religious beliefs that are out of the mainstream," Leishman said.
Ken Wing, a professor of health law at Seattle University, says rules like this need to be very clear. "If you're holding it up to the light and trying to figure out what they're trying to do, that's not good," he said. "Just having good motives is not enough."
For now, Plough and Locke say they're forging ahead with the hospital administrators, ironing out other parts of a bioterrorism readiness plan.
They hope the process will result in voluntary solutions. And if that doesn't happen?
"If we find we're unable to get that sort of cooperation, what all parties think is a viable plan, we could be looking to new authority to commandeer facilities," Locke said. "It may come to that. We haven't crossed that bridge yet" (Seattle Times, 2002).