WSR 03-05-048

PERMANENT RULES

STATE BOARD OF HEALTH


[ Filed February 13, 2003, 3:09 p.m. , effective February 13, 2003, 3:09 p.m. ]

Date of Adoption: December 10, 2002.

Purpose: To provide guidance to first-responders in the event of bioterrorism attack, chemical, or radiologic attack, or major infectious disease outbreak about the enforceability of local health officers' orders and the due process rights of individuals subject to isolation or quarantine orders.

Citation of Existing Rules Affected by this Order: Amending WAC 246-100-036 and 246-101-505.

Statutory Authority for Adoption: RCW 43.20.050 (2)(d).

Other Authority: RCW 70.05.050 and 70.05.060.

Adopted under notice filed as WSR 02-22-107 on November 6, 2002.

Changes Other than Editing from Proposed to Adopted Version: Isolation and quarantine definitions reworded. Persons entering isolation or quarantine premises may be required to wear protective gear or be vaccinated. Judicial isolation or quarantined order should specify site.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 7, Amended 3, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Other Findings Required by Other Provisions of Law as Precondition to Adoption or Effectiveness of Rule: The earlier effective date is necessary because of imminent peril to the public health, safety, or welfare. The nation is currently on orange -- "high-risk" -- terrorism alert. Government officials have warned attacks could involve biological devices.
Effective Date of Rule: Immediately [February 13, 2003, 3:09 p.m.]

December 19, 2002

Don Sloma

Executive Director

OTS-5880.5


AMENDATORY SECTION(Amending WSR 00-23-120, filed 11/22/00, effective 12/23/00)

WAC 246-100-036   Responsibilities and duties -- Local health officers.   (1) The local health officer shall ((review and determine appropriate action for:

Instituting disease prevention and infection control, isolation, detention, and quarantine measures necessary to prevent the spread of communicable disease, invoking the power of the courts to enforce these measures when necessary)) establish, in consultation with local health care providers, health facilities, emergency management personnel, law enforcement agencies, and any other entity he or she deems necessary, plans, policies, and procedures for instituting emergency measures necessary to prevent the spread of communicable disease or contamination.

(2) Local health officers shall:

(a) Notify health care providers within the health district regarding requirements in this chapter;

(b) Ensure anonymous HIV testing is reasonably available;

(c) Make HIV testing, AIDS counseling, and pretest and post-test counseling, as defined in this chapter, available for voluntary, mandatory, and anonymous testing and counseling as required by RCW 70.24.400;

(d) Make information on anonymous HIV testing, AIDS counseling, and pretest and post-test counseling, as described under WAC 246-100-208 and 246-100-209, available;

(e) Use identifying information on HIV-infected individuals provided according to chapter 246-101 WAC only:

(i) For purposes of contacting the HIV-positive individual to provide test results and post-test counseling; or

(ii) To contact persons who have experienced substantial exposure, including sex and injection equipment-sharing partners, and spouses; or

(iii) To link with other name-based public health disease registries when doing so will improve ability to provide needed care services and counseling and disease prevention; and

(f) Destroy documentation of referral information established in WAC 246-100-072 and this subsection containing identities and identifying information on HIV-infected individuals and at-risk partners of those individuals immediately after notifying partners or within three months, whichever occurs first.

(3) Local health officers shall ((conduct investigations and institute control measures consistent with those indicated in the seventeenth edition, 2000, of Communicable Diseases Manual, James Chin, MD, MPH, editor, except:

(a) When superseded by more up-to-date measures, or

(b) When other measures are more specifically related to Washington state)), when necessary, conduct investigations and institute disease control and contamination control measures, including medical examination, testing, counseling, treatment, vaccination, decontamination of persons or animals, isolation, quarantine, vector control, condemnation of food supplies, and inspection and closure of facilities, consistent with those indicated in the 18th edition, 2002 of the Control of Communicable Disease Manual, published by the American Public Health Association, or other measures he or she deems necessary based on his or her professional judgment, current standards of practice and the best available medical and scientific information.

(4) A local health department may make agreements with tribal governments, with federal authorities or with state agencies or institutions of higher education that empower the local health officer to conduct investigations and institute control measures in accordance with WAC 246-100-040 on tribal lands, federal enclaves and military bases, and the campuses of state institutions. State institutions include, but are not limited to, state-operated colleges and universities, schools, hospitals, prisons, group homes, juvenile detention centers, institutions for juvenile delinquents, and residential habilitation centers.

[Statutory Authority: RCW 43.20.050. 00-23-120, 246-100-036, filed 11/22/00, effective 12/23/00. Statutory Authority: RCW 70.24.125 and 70.24.130. 99-17-077, 246-100-036, filed 8/13/99, effective 9/1/99. Statutory Authority: RCW 70.24.022, [70.24].340 and Public Law 104-146. 97-15-099, 246-100-036, filed 7/21/97, effective 7/21/97. Statutory Authority: RCW 43.20.050 and 70.24.130. 92-02-019 (Order 225B), 246-100-036, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.20.050. 91-02-051 (Order 124B), recodified as 246-100-036, filed 12/27/90, effective 1/31/91. Statutory Authority: Chapter 70.24 RCW. 89-02-008 (Order 324), 248-100-036, filed 12/27/88. Statutory Authority: RCW 43.20.050. 88-07-063 (Order 308), 248-100-036, filed 3/16/88.]


NEW SECTION
WAC 246-100-040   Procedures for isolation or quarantine.   (1) At his or her sole discretion, a local health officer may issue an emergency detention order causing a person or group of persons to be immediately detained for purposes of isolation or quarantine in accordance with subsection (3) of this section, or may petition the superior court ex parte for an order to take the person or group of persons into involuntary detention for purposes of isolation or quarantine in accordance with subsection (4) of this section, provided that he or she:

(a) Has first made reasonable efforts, which shall be documented, to obtain voluntary compliance with requests for medical examination, testing, treatment, counseling, vaccination, decontamination of persons or animals, isolation, quarantine, and inspection and closure of facilities, or has determined in his or her professional judgment that seeking voluntary compliance would create a risk of serious harm; and

(b) Has reason to believe that the person or group of persons is, or is suspected to be, infected with, exposed to, or contaminated with a communicable disease or chemical, biological, or radiological agent that could spread to or contaminate others if remedial action is not taken; and

(c) Has reason to believe that the person or group of persons would pose a serious and imminent risk to the health and safety of others if not detained for purposes of isolation or quarantine.

(2) A local health officer may invoke the powers of police officers, sheriffs, constables, and all other officers and employees of any political subdivisions within the jurisdiction of the health department to enforce immediately orders given to effectuate the purposes of this section in accordance with the provisions of RCW 43.20.050(4) and 70.05.120.

(3) If a local health officer orders the immediate involuntary detention of a person or group of persons for purposes of isolation or quarantine:

(a) The emergency detention order shall be for a period not to exceed ten days.

(b) The local health officer shall issue a written emergency detention order as soon as reasonably possible and in all cases within twelve hours of detention that shall specify the following:

(i) The identity of all persons or groups subject to isolation or quarantine;

(ii) The premises subject to isolation or quarantine;

(iii) The date and time at which isolation or quarantine commences;

(iv) The suspected communicable disease or infectious agent if known;

(v) The measures taken by the local health officer to seek voluntary compliance or the basis on which the local health officer determined that seeking voluntary compliance would create a risk of serious harm; and

(vi) The medical basis on which isolation or quarantine is justified.

(c) The local health officer shall provide copies of the written emergency detention order to the person or group of persons detained or, if the order applies to a group and it is impractical to provide individual copies, post copies in a conspicuous place in the premises where isolation or quarantine has been imposed.

(d) Along with the written order, and by the same means of distribution, the local health officer shall provide the person or group of persons detained with the following written notice:

NOTICE: You have the right to petition the superior court for release from isolation or quarantine in accordance with WAC 246-100-055. You have a right to legal counsel. If you are unable to afford legal counsel, then counsel will be appointed for you at government expense and you should request the appointment of counsel at this time. If you currently have legal counsel, then you have an opportunity to contact that counsel for assistance.

(4) If a local health officer petitions the superior court ex parte for an order authorizing involuntary detention of a person or group of persons for purposes of isolation or quarantine pursuant to this section:

(a) The petition shall specify:

(i) The identity of all persons or groups to be subject to isolation or quarantine;

(ii) The premises where isolation or quarantine will take place;

(iii) The date and time at which isolation or quarantine will commence;

(iv) The suspected communicable disease or infectious agent if known;

(v) The anticipated duration of isolation or quarantine based on the suspected communicable disease or infectious agent if known;

(vi) The measures taken by the local health officer to seek voluntary compliance or the basis on which the local health officer determined that seeking voluntary compliance would create a risk of serious harm;

(vii) The medical basis on which isolation or quarantine is justified.

(b) The petition shall be accompanied by the declaration of the local health officer attesting to the facts asserted in the petition, together with any further information that may be relevant and material to the court's consideration.

(c) Notice to the persons or groups identified in the petition shall be accomplished in accordance with the rules of civil procedure.

(d) The court shall hold a hearing on a petition filed pursuant to this section within seventy-two hours of filing, exclusive of Saturdays, Sundays, and holidays.

(e) The court shall issue the order if there is a reasonable basis to find that isolation or quarantine is necessary to prevent a serious and imminent risk to the health and safety of others.

(f) A court order authorizing isolation or quarantine as a result of an ex parte hearing shall:

(i) Specify a maximum duration for isolation or quarantine not to exceed ten days;

(ii) Identify the isolated or quarantined persons or groups by name or shared or similar characteristics or circumstances;

(iii) Specify factual findings warranting isolation or quarantine pursuant to this section;

(iv) Include any conditions necessary to ensure that isolation or quarantine is carried out within the stated purposes and restrictions of this section;

(v) Specify the premises where isolation or quarantine will take place; and

(vi) Be served on all affected persons or groups in accordance with the rules of civil procedure.

(5) A local health officer may petition the superior court for an order authorizing the continued isolation or quarantine of a person or group detained under subsections (3) or (4) of this section for a period up to thirty days.

(a) The petition shall specify:

(i) The identity of all persons or groups subject to isolation or quarantine;

(ii) The premises where isolation or quarantine is taking place;

(iii) The communicable disease or infectious agent if known;

(iv) The anticipated duration of isolation or quarantine based on the suspected communicable disease or infectious agent if known;

(v) The medical basis on which continued isolation or quarantine is justified.

(b) The petition shall be accompanied by the declaration of the local health officer attesting to the facts asserted in the petition, together with any further information that may be relevant and material to the court's consideration.

(c) The petition shall be accompanied by a statement of compliance with the conditions and principles for isolation and quarantine contained in WAC 246-100-045.

(d) Notice to the persons or groups identified in the petition shall be accomplished in accordance with the rules of civil procedure.

(e) The court shall hold a hearing on a petition filed pursuant to this subsection within seventy-two hours of filing, exclusive of Saturdays, Sundays, and holidays. In extraordinary circumstances and for good cause shown, the local health officer may apply to continue the hearing date for up to ten days, which continuance the court may grant at its discretion giving due regard to the rights of the affected individuals, the protection of the public's health, the severity of the public health threat, and the availability of necessary witnesses and evidence.

(f) The court shall grant the petition if it finds that there is clear, cogent, and convincing evidence that isolation or quarantine is necessary to prevent a serious and imminent risk to the health and safety of others.

(g) A court order authorizing continued isolation or quarantine as a result of a hearing shall:

(i) Specify a maximum duration for isolation or quarantine not to exceed thirty days;

(ii) Identify the isolated or quarantined persons or groups by name or shared or similar characteristics or circumstances;

(iii) Specify factual findings warranting isolation or quarantine pursuant to this section;

(iv) Include any conditions necessary to ensure that isolation or quarantine is carried out within the stated purposes and restrictions of this section;

(v) Specify the premises where isolation or quarantine will take place; and

(vi) Be served on all affected persons or groups in accordance with the rules of civil procedure.

(6) Prior to the expiration of a court order for continued detention issued pursuant to subsection (5) of this section, the local health officer may petition the superior court to continue isolation or quarantine provided:

(a) The court finds there is a reasonable basis to require continued isolation or quarantine to prevent a serious and imminent threat to the health and safety of others.

(b) The order shall be for a period not to exceed thirty days.

(7) State statutes, rules, and state and federal emergency declarations governing procedures for detention, examination, counseling, testing, treatment, vaccination, isolation, or quarantine for specified health emergencies or specified communicable diseases, including, but not limited to, tuberculosis and HIV, shall supercede this section.

[]


NEW SECTION
WAC 246-100-045   Conditions and principles for isolation or quarantine.   The local health officer shall adhere to the following conditions and principles when isolating or quarantining a person or group of persons in accordance with WAC 246-100-040:

(1) Isolation or quarantine must be by the least restrictive means necessary to prevent the spread of a communicable or possibly communicable disease to others and may include, but are not limited to, confinement to private homes or other public or private premises;

(2) Isolated individuals must be confined separately from quarantined individuals;

(3) The health status of isolated or quarantined individuals must be monitored regularly to determine if they require continued isolation or quarantine;

(4) If a quarantined individual subsequently becomes infected or is reasonably believed to have become infected with a communicable or possibly communicable disease that the local health officer believes poses a significant threat to the health and safety of other quarantined individuals, he or she must promptly be placed in isolation;

(5) Isolated or quarantined individuals must be released as soon as practicable when the local health officer determines that they have been successfully decontaminated or that they pose no substantial risk of transmitting a communicable or possibly communicable disease that would constitute a serious or imminent threat to the health and safety of others;

(6) The needs of a person isolated or quarantined must be addressed to the greatest extent possible in a systematic and competent fashion, including, but not limited to, providing adequate food, clothing, shelter, means of communication with those in isolation or quarantine and outside these settings, medication, and competent medical care;

(7) Premises used for isolation or quarantine must be maintained in a safe and hygienic manner to minimize the likelihood of further transmission of infection or other harm to persons isolated and quarantined;

(8) To the extent possible, cultural and religious beliefs should be considered in addressing the needs of individuals, and establishing and maintaining isolation or quarantine premises;

(9) Isolation or quarantine shall not abridge the right of any person to rely exclusively on spiritual means alone through prayer to treat a communicable or possibly communicable disease in accordance with religious tenets and practices, nor shall anything in this chapter be deemed to prohibit a person so relying who is infected with a contagious or communicable disease from being isolated or quarantined in a private place of his or her own choice, provided, it is approved by the local health officer, and all laws, rules and regulations governing control, sanitation, isolation and quarantine are complied with. At his or her sole discretion, the local health officer may isolate infected individuals declining treatment for the duration of their communicable infection.

[]


NEW SECTION
WAC 246-100-050   Isolation or quarantine premises.   (1) Entry into isolation or quarantine premises shall be restricted under the following conditions:

(a) The local health officer may authorize physicians, health care workers, or others access to individuals in isolation or quarantine pursuant to WAC 246-100-040 as necessary to meet the needs of isolated or quarantined individuals;

(b) No person, other than a person authorized by the local health officer, shall enter isolation or quarantine premises;

(c) Any person entering isolation or quarantine premises shall be provided with infection control training and may be required to wear personal protective equipment or receive vaccination as appropriate;

(d) Any person entering isolation or quarantine premises with or without authorization of the local health officer may be isolated or quarantined.

(2) Persons subject to isolation or quarantine and persons entering isolation or quarantine premises shall obey the rules established by the state board of health and the orders of the local health officer, and failure to do so shall constitute a misdemeanor consistent with the provisions of RCW 43.20.050(4) and 70.05.120.

[]


NEW SECTION
WAC 246-100-055   Relief from isolation or quarantine.   Any person or group of persons isolated or quarantined pursuant to this chapter may seek relief from the superior court.

(1) Any person or group of persons detained by order of a local health officer pursuant to WAC 246-100-040(3) may apply to the court for an order to show cause why the individual or group should not be released.

(a) The court shall rule on the application to show cause within forty-eight hours of its filing.

(b) If the court grants the application, the court shall schedule a hearing on the order to show cause as soon as practicable.

(c) The issuance of an order to show cause shall not stay or enjoin an isolation or quarantine order.

(2) An individual or group isolated or quarantined may request a hearing in the court for remedies regarding breaches to the conditions of isolation or quarantine required by WAC 246-100-045.

(3) A request for a hearing shall not stay or enjoin an isolation or quarantine order.

(4) Upon receipt of a request under this subsection alleging extraordinary circumstances justifying the immediate granting of relief, the court shall fix a date for hearing on the matters alleged as soon as practicable.

(5) Otherwise, upon receipt of a request under this section, the court shall fix a date for hearing on the matters alleged within five days from receipt of the request.

(6) In any proceedings brought for relief under this subsection, in extraordinary circumstances and for good cause shown, the local health authority may move the court to extend the time for a hearing, which extension the court in its discretion may grant giving due regard to the rights of the affected individuals, the protection of the public's health, the severity of the emergency and the availability of necessary witnesses and evidence.

(7) Any hearings for relief under this section involving a petitioner or petitioners judged to be contagious for a communicable disease will be conducted in a manner that utilizes appropriate infection control precautions and minimizes the risk of disease transmission.

[]


NEW SECTION
WAC 246-100-060   Right to counsel.   A person or group of persons isolated or quarantined pursuant to WAC 246-100-040 has a right to be represented by counsel if they so elect. If such person or group requests counsel and cannot afford counsel, the court shall appoint counsel consistent with the provisions of chapter 10.101 RCW. The local health officer must provide adequate means of communication between such persons or groups and their counsel.

[]


NEW SECTION
WAC 246-100-065   Consolidation.   In any proceedings brought pursuant to this chapter, to promote the fair and efficient operation of justice and having given due regard to the rights of affected persons, the severity of the threat to the public's health, and the availability of necessary witnesses and evidence, the court may order the consolidation of individual claims into group claims where:

(1) The number of individuals involved or to be affected is so large as to render individual participation impractical;

(2) There are questions of law or fact common to the individual claims or rights to be determined;

(3) The group claims or rights to be determined are typical of the affected persons' claims or rights; and

(4) The entire group will be adequately represented in the consolidation.

[]


NEW SECTION
WAC 246-100-070   Enforcement of local health officer orders.   (1) An order issued by a local health officer in accordance with this chapter shall constitute the duly authorized application of lawful rules adopted by the state board of health and must be enforced by all police officers, sheriffs, constables, and all other officers and employees of any political subdivisions within the jurisdiction of the health department in accordance with RCW 43.20.050.

(2) Any person who shall violate any of the provisions of this chapter or any lawful rule adopted by the board shall be deemed guilty of a misdemeanor punishable as provided under RCW 43.20.050.

(3) Any person who shall fail or refuse to obey any lawful order issued by any local health officer shall be deemed guilty of a misdemeanor punishable as provided under RCW 70.05.120.

[]

Legislature Code Reviser 

Register

Washington State Code Reviser's Office