Federal Pandemic Plans....don't look good

[Guest guest]

http://tinyurl.com/2z9c46

ACLU sees coercive theme in federal pandemic plans

Schnirring Staff Writer

Jan 18, 2008 (CIDRAP News) – The American Civil Liberties Union

(ACLU) this week charged that federal pandemic planning efforts rely

too heavily on law enforcement and national security approaches, in

effect making people, not disease, the enemy.

The ACLU aired its concerns in a report authored by three prominent

public health law attorneys and released Jan 14 at a press

conference in Washington, DC. The authors are s and

K. Mariner from the Boston University School of Public Health and

E. Parmet of Northeastern Law School.

The report discusses a wide range of privacy protections and other

civil liberties that the ACLU believes might be threatened in a

pandemic setting. The authors include a list of recommendations

intended to focus pandemic planning efforts more toward community

engagement, as well as an appendix that covers a number of

constitutional issues that could surface during a pandemic.

" A law enforcement approach is just the wrong tool for the job when

it comes to fighting disease, " said Barry Steinhardt, director of

the ACLU's technology and liberty program, in a Jan 14 press

release. He said history shows that a coercive approach to pandemic

that treats sick people as enemies is ineffective from a public

health perspective.

But a spokesman for the US Department of Health and Human Services

(HHS) says the group has mischaracterized the government's efforts.

Also, other critics with expertise in public health and the law say

the ACLU report is marred by a misunderstanding of government

response plans.

In the past, President W. Bush has suggested that federal

officials may need to quarantine regions of the country if localized

outbreaks of pandemic flu occur, according to previous reports. In

October 2005, he suggested expanding presidential power over state-

run National Guard operations to implement quarantines during a

pandemic.

Bush said that such executive power during a pandemic was an

important topic for Congress to debate, according to a previous

CIDRAP News report. " Congress needs to take a look at circumstances

that may need to vest the capacity of the president to move beyond

that debate. And one such catastrophe, or one such challenge, could

be an avian flu outbreak, " he said at an Oct 4, 2005, press

conference.

In April 2005, Bush signed an executive order that authorized adding

pandemic influenza to a federal list of diseases that can lead to

quarantine.

All-hazards approach critiqued

The ACLU authors assert that an all-hazards approach to disaster

planning—one based on the assumption that the same preparedness

model can be applied to any kind of disaster, whether biological,

chemical, explosive, natural, or nuclear—has steered federal

officials into assuming worst-case scenarios. " All of the plans rely

heavily on a punitive approach and emphasize extreme measures such

as quarantine and forced treatment, " they wrote.

As a recent example, the attorneys pointed to the events of last

spring when the US Centers for Disease Control and Prevention (CDC)

issued its first domestic isolation order in 40 years for Atlanta

attorney Speaker, who was traveling abroad when tests

suggested he had extensively drug-resistant tuberculosis (XDR TB).

They wrote that the CDC's order prompted Speaker to take evasive

actions that could have exposed other travelers. " In the case of an

epidemic, the same evasive behavior seen here in one man would

likely be replicated on a mass scale that would undermine the goal

of stopping the disease, " the ACLU report states.

The report also raises concerns over the October 2007 presidential

directive on public health and medical preparedness, which

establishes a prominent role for the Department of Homeland Security

(DHS) in public health disaster management, incorporates Department

of Defense expertise and resources into disaster management, and

calls for a national biosurveillance system. The ACLU argues that a

biosurveillance system that is too broad could erode the privacy of

all patients.

" More ominously, the participation of military and homeland security

officials in this public health venture raises questions about how

the information will be used, " the authors wrote.

HHS says report is off target

However, HHS spokesman Bill Hall told CIDRAP News that the ACLU

experts have misunderstood the federal government's pandemic plans.

They have focused too much on containment efforts that the

government may or may not use to stamp out the virus in a local area

at the earliest stage of a pandemic, he said. Some pandemic flu

experts have said containment shouldn't even be attempted at the

early stage, because they doubt such an effort would work, Hall

said.

Government officials solidly support voluntary quarantine as an

effective community mitigation strategy, he said. " SARS [severe

acute respiratory syndrome] was a public health success story, " Hall

said. " But the word 'quarantine' conjures up images of soldiers and

a police state that are hard images to get out of people's minds. "

T. Osterholm, PhD, MPH, said he doesn't think health

officials will be able to contain an emerging pandemic and that the

ACLU report misses the mark because it doesn't seem to consider

aspects of the federal plan outside of initial containment. " Is this

a law enforcement based approach? It's not, no way, " said Osterholm,

who is director of the University of Minnesota Center for Infectious

Disease Research and Policy, publisher of CIDRAP News.

However, Osterholm said he agrees with the ACLU's criticism of the

government's emphasis on an all-hazards approach to disaster

preparedness. Planning for a pandemic presents many unique

challenges, he said. For example, the long duration of a severe

pandemic, unlike a disaster such as the 9/11 terrorist attacks,

would lead to a collapse of the nation's just-in-time economy,

Osterholm said.

Gravely, a public health law expert who is a partner and head

of the healthcare practice group at Troutman , a law firm in

Richmond, Va., said he doesn't think the ACLU report is a fair

assessment of the nation's pandemic planning efforts. " It focuses

too much on the federal level and doesn't recognize that disaster

response—pandemics, particularly—is handled by several governments:

local, state, tribal, federal, and international, " Gravely told

CIDRAP News.

" What jumped out at me is their discussion of quarantine and

isolation, " he said. " Though they characterize the federal plan as

militaristic, 95% of isolation and quarantine is done at the state

level. Federal involvement in quarantine is extremely limited. "

Even in the Speaker case, the federal isolation order was in

force for just a few days, and then the state of Colorado took over,

Gravely said.

State emergency powers cause concern

The ACLU report raises concern about CDC support for a Model State

Emergency Powers Act, drafted after the 9/11 terrorist attacks,

describing it as a tool for states to broaden isolation and

quarantine powers in a public health emergency. " The Act used fear

to justify methods better suited to quelling public riots than

protecting public health, " the experts wrote.

Gravely commented in response, " I think what the ACLU report misses

is that every state in the union had quarantine laws before 9/11.

Some older laws were exceptionally broad or ineffective. But some

changes have actually put limits on the laws. " For example, he said

Virginia amended its quarantine law to incorporate some of the

concerns raised by the ACLU experts, such as by providing that

quarantine powers take effect only when other measures fail and that

patients have a right to legal counsel.

" Most states, as they updated their laws, incorporated due process, "

Gravely said.

Gravely said he applauded the ACLU report, " but it would have been

more useful if it reflected the reality. " For example, the report

implies that an all-hazards approach to federal disaster planning

has side-stepped pandemic-specific needs, he said. However, he

observed that the community mitigation guidance HHS issued for

states adjusts nonpharmaceutical interventions according to pandemic

severity.

Medical privacy issues raised by the ACLU experts are important,

Gravely said. " They have captured that we need to be vigilant in

balancing privacy in broad-based surveillance. "

Gravely said a major overhaul of medical privacy legislation in 1996

that produced the Health Insurance Portability and Accountability

Act (HIPAA) contains a number of exceptions to privacy protections,

one of which is public health reporting. Concern about how states

will use medical surveillance information is a valid policy issue,

but there is no evidence that states are misusing such information,

he said.

Hall said the ACLU's recommendations include several items the

federal government is already working on. One example is the

pandemic vaccine prioritization draft plan, on which federal

officials have held town hall forums and sought extensive public

feedback.

Some of the ACLU's other pandemic preparedness recommendations

include:

Developing rapid, accurate diagnostic tests to reduce errors in

identifying people who have infectious diseases

Focusing on community engagement for pandemic preparations rather

than individual responsibility

Providing food, medicine, and supplies to people who stay home

during a pandemic

Detaining individuals, when absolutely necessary, in medical

facilities rather than correctional facilities

Ensuring due process and the right to legal counsel for individuals

who are proposed for isolation or restricted from travel.

See also:

Jan 14 ACLU press release

Jan 14 ACLU report on pandemic preparedness

Oct 4, 2005, CIDRAP News story " Bush suggests military-enforced

quarantines for avian flu "

Oct 22, 2007, CIDRAP News story " White House aims to transform

public health preparedness "

Feb 1, 2007, CIDRAP News story " HHS ties pandemic mitigation advice

to severity "