nhfa-response-to-cdc-nprm-communicable-disease

A Voice for Choice reached out to Diane Miller, JD, of National Health Freedom Action and asked her to analyze the CDC’s Notice of Proposed Rulemaking on Communicable Disease. What follows is National Health Freedom Action’s detailed response to this Notice.

September 9, 2016

In response to the CDC Notice of Proposed Rulemaking (NPRM) regarding Communicable Disease issued on August 15, 2016, and in response to the many inquiries to NHFA and the many posts suggesting that the CDC has proposed a shocking new power grab over personal liberties we offer these comments.

Most importantly, there is a great need to send comments into the CDC regarding this NPRM, recommending deletions or revisions, citing specific paragraphs of concern. These specific types of comments will be able to be responded to by the CDC.
Secondly, it is very important that Americans know the current laws and regulations for communicable disease control in order assess what is new in the NPRM.
And third, NHFA points to three areas of immediate concern.
1. The NPRM’s proposed addition of mandatory reporting by carriers and employees of borders, of all people moving between states and into the U.S. who display ill symptoms that may reasonably be considered communicable disease instead of the current policy of investigation of persons reasonably believed to be impacted by an outbreak.
2. The NPRM’s proposed addition of an option for people to voluntarily enter into an “agreement” with the federal government CDC, if they plan to comply with a federal order of quarantine, isolation, or conditional release, rather than trusting that people will avoid criminal penalties of breaking the federal order on their own without an agreement. The agreement to follow CDC recommendations may make it more difficult for a person to decline or make medical treatment choices while under surveillance.
3. The NPRM’s lack of detail included in the due process provisions which articulate an effort to strongly protect individual preferences and protection of civil liberties during a federal order of quarantine, isolation, and conditional release.

NHFA’s Comments:

The CDC currently has broad powers to apprehend persons moving across interstate borders and entering the U.S. from international locations regarding communicable diseases and other health concerns. These laws and regulations have been adopted over the past 15 years.

The NPRM works to educate readers on the current law as follows:

“Section 361(a) (42 U.S.C. 264(a) states that the Secretary may make and enforce regulations as necessary to prevent the introduction, transmission, and spread of ’communicable diseases’ from foreign countries into the United States or from one state or possession (U.S. territory) into any other state or possession (U.S. territory). By its terms, subsection (a) does not seek to limit the types of communicable diseases for which regulations may be enacted, but rather applies to all communicable diseases that may impact human health. Section 361(a) (42 U.S.C. 264(a)) further authorizes the Secretary to promulgate and enforce a variety of public health regulations to prevent the spread of these communicable diseases including: Inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be sources of dangerous infection to human beings, and other measures.

In contrast, section 361(b) (42 U.S.C. 264(b)) authorizes the ’apprehension, detention, or conditional release’ of individuals for the purpose of preventing the introduction, transmission, and spread of a limited subset of communicable diseases, specifically those communicable diseases specified in an Executive Order of the President, upon recommendation of the Secretary in consultation with the Surgeon General. HHS/CDC refers to this limited subset of communicable diseases as ’quarantinable communicable diseases’ because these are the communicable disease for which by statute quarantine, isolation, or conditional release are authorized.” NPRM at p. 54232-54233

An example of a part of the current official rules adopted in past years is the following:

42 Code of Federal Regulation 70.6 – Apprehension and detention of persons with specific diseases.

70.6 Apprehension and detention of persons with specific diseases.

Regulations prescribed in this part authorize the detention, isolation, quarantine, or conditional release of individuals, for the purpose of preventing the introduction, transmission, and spread of the communicable diseases listed in an Executive Order setting out a list of quarantinable communicable diseases, as provided under section 361(b) of the Public Health Service Act. Executive Order 13295, of April 4, 2003, as amended by Executive Order 13375 of April 1, 2005, contains the current revised list of quarantinable communicable diseases, and may be obtained at http://www.cdc.gov/quarantine and http://www.archives.gov/federal_register. If this Order is amended, HHS will enforce that amended order immediately and update its Web site.

[77 FR 75884, Dec. 26, 2012]

With the detailed laws already passed, it is important to decipher what in fact this NPRM is attempting to accomplish, and what parts of it are new and dangerous threats to personal liberties. These are the areas that NHFA believes are most important:

It appears that the CDC is attempting to move towards mandatory reporting by carriers and border personnel, requiring reporting of persons with signs of illness as they cross borders, as opposed to having to do large scale individual contact interviews and investigations after an outbreak occurs. This change would definitely impact all travelers and travel information and be invasive to the privacy of travelers as they would be pre-observed for illness (defined more broadly than previous definitions), and reported on by carriers, and possibly be unnecessarily detained, as a preventive measure.
It is one thing to interview 1000 persons that have been on flights after the fact of exposure, yet another thing to screen all the millions of people moving from state to state or into the U.S. for illness. We believe that this mandatory reporting of all sick people that move about is bizarre and unfounded and is an attempt by the government to try and control all of life and all of life outcomes, to the extent that they have lost all perspective of what it means to be freely on the earth, communing with all of life, and the ability for people to be responsible for the risks that they take in travel arrangements. We believe that the cases of outbreaks cited in the NPRM have been handled adequately in the past, and at a price that is much less than the price of invading all persons’ personal liberty and privacy.
This is the stated rationale:
“70.11 would improve HHS/CDC’s ability to receive reports of symptomatic interstate travelers allowing for more efficient evaluation and enabling HHS/CDC to expedite its domestic response activities, (e.g. distributing Passenger Locator Forms) to more quickly and efficiently locate and assess exposed travelers, and mitigate the spread of disease.” NPRM at p. 54236.
and
“CDC is currently working with DHS/ CBP to update existing DHS/CBP regulations that will require the electronic collection and submission of additional passenger and crew contact information to the Advance Passenger Information System (APIS) which would streamline the collection of additional data to minimize the burden on airline operators and travelers.” NPRM at pg. 54237.
Secondly, CDC is attempting to make new rules that provide for persons to voluntarily enter into an agreement with the federal government when detained or apprehended regarding compliance with the federal quarantine order, as a way to give the federal government documentation and assurance that a person plans to carry out the health measures with which the federal government wants him/her to comply, and as a way to check up on him/her as he/she is in the process of quarantine, isolation and conditional release.
We believe that offering an opportunity for people to enter into a contract, or an “agreement”, is confusing and misleading because people may not realize the potential unintended consequences of consenting to such an agreement and that, even without an agreement, the federal order for quarantine, isolation, and conditional release would be in place and require people to abide by it or be criminally penalized.
So, this begs the question, why would the CDC want to recommend an agreement?
“§ 70.18 Agreements.
CDC may enter into an agreement with an individual, upon such terms as the CDC considers to be reasonably necessary, indicating that the individual consents to any of the public health measures authorized under this part, including quarantine, isolation, conditional release, medical examination, hospitalization, vaccination, and treatment; provided that the individual’s consent shall not be considered as a prerequisite to the exercise of any authority under this part.” NPRM at pg. 54312
Under current law the federal government has authorized “…the Secretary to promulgate and enforce a variety of public health regulations to prevent the spread of these communicable diseases including: Inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be sources of dangerous infection to human beings, and other measures. (Section 361(a) (42 U.S.C. 264(a)).
But in our analysis, we found no mandates under the current quarantine laws that point to the ability of the government to force treatments on people in quarantine, isolation, or conditional release. We believe that people still have the right of informed consent. We also think that persons entering into these agreements would, without realizing it, agree to undergo federally recommended health care treatments and lose their right to decline recommended treatment measures, including vaccines and other treatments.
The NPRM gives the impression of non-invasiveness by proposing clarification of the bounds of their authority regarding what they can do to a person’s body by recommending a new definition of “Medical Examination”. But that new definition would state that the CDC could order laboratory testing under certain conditions. In addition, since physical examination would be a subset of the overall “medical examination” definition, CDC is recommending creation of a definition for “Non-invasive” in order to clarify the boundary of their authority when doing physical exams. Additionally, CDC recommends adding a broad definition for “Public Health Prevention Measure” (see definitions below).
But nowhere does the NPRM mention that the CDC would have the authority to force health care “vaccinations and treatments” except in the “agreement language”, which people would enter into voluntarily. This is a real problem that many people may not understand.
“Medical examination means the assessment of an individual by an authorized 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.”
“Non-invasive means procedures conducted by an authorized health worker or another individual with suitable training and includes the physical examination of the ear, nose, and mouth; temperature assessments using an ear, oral, cutaneous, or noncontact thermometer, or thermal imaging; auscultation; external palpation; external measurement of blood pressure; 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.”
“Public health prevention measures means the assessment of an individual through non-invasive procedures and other means, such as observation, questioning, review of travel documents, records review, and other non-invasive means, to determine the individual’s health status and potential public health risk to others.”
The NPRM should have included strong language in the agreement criteria ensuring that the contracted person, or their parent or legal guardian, would be at all times able to refuse medical treatments including vaccines, and that all medical treatments and vaccines would ONLY be given after informed consent of the person receiving said treatment.
This is an area where comments would be very important. Giving notice to people that they do not have to enter into an agreement with the federal government, and that they do not have to comply with any recommended medical treatments or vaccines, even though the federal government may have the right to detain them, put them in isolation or quarantine with due process, etc. Therefore, language must be added to give people notice and to protect the ability of persons to decline medical treatments as a condition of their release from quarantine or other form of apprehension.
Lastly, the CDC NPRM is addressing the transparency of their existing power. The NPRM states that “[t]hese changes are not intended to provide HHS/CDC with new regulatory authorities, but rather to clarify the agency’s standard operating procedures and policies with regard to existing regulations in 42 CFR parts 70 and 71 including due process rights for individuals.” Further, it provides that
“this NPRM contains due process provisions (requirements relating to administrative records, quarantine, isolation, conditional release, medical examination, and agreements; authorization for payment for medical care and treatment; and an explanation of applicable criminal penalties) which are intended to inform the U.S. public of what steps HHS/CDC might take to protect public health during an outbreak while safeguarding the rights of the individual. Although these processes have been implemented through internal standard operating procedures, these procedures have not been codified, explicitly set forth in regulation, and made publicly available until today. These provisions are needed to provide transparency and assure the traveling public and any individual potentially placed under a Federal public health order that HHS/ CDC will protect their individual liberties.” NPRM at p. 54237.

NHFA supports the transparency of due process for all citizens, including providing strong notice to persons of their civil and human rights. There is a need for language in the NPRM that will make it clear that the government, when pursuing quarantine, isolation, and conditional release, is to be forever vigilant of the rights of the individual and is to use the least restrictive means of detaining, apprehension, or confinement, at all times, including allowing persons to be able to be in their own home, with family, and with the type of health care treatments that they themselves deem beneficial for their health and survival.
Specific criteria to always protect the right of persons under a federal order to decline treatments, vaccines, and anything that is invasive to their bodies, including laboratory testing, is essential. A special note, NHFA does not support forcing a person to undergo laboratory testing for any reason without informed consent, and would argue that a person always maintains the right of quarantine and isolation as an option and alternative to laboratory testing of any kind.

In Conclusion:

NHFA encourages citizens and organization to ask for the immediate halt of this proposed rulemaking process until the CDC can design regulations that first and foremost protect the rights of all Americans in their self-determination and personal health privacy and liberty. NHFA encourages CDC to have regulations that do not misguide people or coerce them into agreements of compliance of federal recommendations while they are in crisis, or that infringe on the liberties and personal health privacy of people in their daily life events as they move about and travel. Regulations are needed that can address reasonable coping mechanisms for communicable diseases that involve immediate access to clean and healthful water, air, and environments, and access to the broad range of health care practitioners, products and options that individuals desire during a crisis to promote health and prevention. CDC must work to avoid forced treatments of any kind, always honoring informed consent principles of all individuals. And to utilize quarantine, isolation, and surveillance in the least restrictive mode and with full due process, as a very last resort in addressing communicable disease.

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National Health Freedom Action’s Response to CDC Notice of Proposed Rulemaking on Communicable Disease

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