Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties (2018)

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3 AIRPORT PUBLIC HEALTH PREPAREDNESS AND RESPONSE: LEGAL RIGHTS, POWERS, AND DUTIES Leila Barraza, Mel and Enid Zuckerman College of Public Health, University of Arizona, Tucson, AZ Elizabeth Hall-Lipsy, College of Pharmacy, University of Arizona, Tucson, AZ SUMMARY With the rise in frequency and convenience of global travel opportunities, airports are inevitable hubs for the spread of communicable diseases into the United States and between states. While Ebola and Zika are the latest examples of diseases that have entered the United States from air passengers, many communicable diseases can be transmitted quickly and widely through air travel, threatening public health. Managing communicable disease threats at airports presents challenges that can potentially be mitigated through proper planning that focuses on addressing pertinent legal issues, in addition to developing strong relationships among airport partners and stakeholders to facilitate effec- tive communications, training and education, and evaluation and improvement.1 While individual airports are not explicitly required to develop communicable disease preparedness plans,2 developing such a plan is recommended in light of the known risks of infectious diseases. The responsi- bilities of airport managers, attorneys, first respond- ers, public health officials, and other stakeholders should be clearly defined prior to a communicable disease exposure or outbreak to ensure all parties can respond rapidly, effectively, and lawfully. In this digest, essential legal considerations are framed for use by airport lawyers, airport managers, and key stakeholders in developing and revising airport communicable disease preparedness plans. Applica- ble authorities, roles, and responsibilities of airports and their stakeholders are examined, as well as are roles of other governmental entities and actors involved in health-related air travel emergencies. Specific legal issues addressed include the following: measures to detect communicable disease, regula- tions to control communicable diseases, methods for decontamination, emergency legal preparedness, privacy, and potential sources of liability. I. INTRODUCTION Interstate and international travel opportunities are easier and more commonplace than ever before. Because of the frequency and ease of global travel, communicable diseases3 can spread rapidly across international borders and between states. Land crossings and sea ports were previously more com- mon sites of disease entry; now, airports are often the first entry point for a traveler infected with a communicable disease. Passengers, asymptomatic upon departure, may exhibit symptoms of a commu- nicable disease during flight or upon arrival at their destination. Given the close confines of air travel, a single contagious passenger infected with a certain type of communicable disease could spread the ill- ness to numerous other passengers, crew, and air- port personnel with whom he or she comes into contact. The potential for such transmission makes communicable disease planning essential for a swift, coordinated response limiting spread of the illness. An incident at Phoenix Sky Harbor International Airport in 2013 highlights the challenges airport personnel may face in handling communicable dis- ease threats. A flight originating in Austin, Texas, with a final destination of Los Angeles, California, arrived for a layover at Sky Harbor, carrying a pas- senger suspected of having active tuberculosis.4 The passenger was not on the Center for Disease Control 1 The authors of a separate ACRP project identified the importance of, and presented conclusions in, six key areas related to airport communicable disease planning: comprehensive planning; partnership and stakeholder engagement; legal issues; strategic communications; exer- cising, drilling, training, and education; and evaluation and continuous improvement. James F. smith & Joshua GreenberG, PreParinG airPorts For CommuniCable Diseases on arrivinG FliGhts, 57–59, (Airport Cooperative Research Program, Airport Synthesis 11-03/Topic S03-12 [Final (Synthesis)], Transportation Research Board of the National Academies of Sciences, Engineering, and Medicine, Washington, D.C., 2017). 2 See generally U.S. Gov’t aCCountability oFF., Gao-16- 127, air travel anD CommuniCable Disease: ComPrehensive FeDeral Plan neeDeD For u.s. aviation system’s PrePareDness (2015), https://www.gao.gov/assets/680/674224.pdf. 3 The Centers for Disease Control and Prevention (CDC) defines communicable disease as “an illness due to a specific infectious agent or its toxic products which arises through transmission of that agent or its products from an infected person or animal or a reservoir to a sus- ceptible host, either directly, or indirectly through an intermediate animal host, vector, or the inanimate envi- ronment.” 42 C.F.R. § 71.1(b) (2017). 4 smith & GreenberG, supra note 1, at 28–29.

4 and Prevention’s (CDC’s) do-not-board list,5 and the passenger showed no physical symptoms of illness prior to departure in Austin.6 Notification of the pas- senger’s disease only reached the flight crew once the flight was en route to Phoenix, Arizona, requir- ing crew and airport personnel to act quickly to inform passengers of an exposure to tuberculosis and to prevent further exposures on the ground in Phoenix.7 Responding effectively to an active case of tuberculosis, Ebola, Zika, or any other communica- ble disease threat must balance protecting the pub- lic’s health while minimizing airport operational disruptions, financial losses, and reputational dam- age.8 With many demands on airports and their per- sonnel, planning and coordination are key to managing communicable disease outbreaks. As a result, airport managers, advisors, and attorneys must be prepared with appropriate legal responses to communicable disease exposures or outbreaks, specifically concerning preparedness, response, mit- igation, and recovery. Airport communicable-disease-preparedness– planning must recognize that a response will be multi-layered and involve a variety of stakeholders. A response will depend on numerous factors, includ- ing especially the specific type of pathogen involved. Key considerations include identifying who will need to be involved and their roles in the event response and recovery. The response operations will usually be carried out by first responders (e.g., fire and emer- gency medical personnel) who can be mobilized based on a notification plan and system. The logisti- cal process of the response may be overseen by an executive management team that includes the inci- dent command personnel who will coordinate the response, including communication and information dissemination. While certain roles and responsibili- ties of response personnel may be similar to those involved in the airport’s general emergency pre- paredness plan, other roles may need to be specifically described and delineated to address a communicable disease exposure or outbreak. Certain educational trainings and simulation activities focusing on potential scenarios involving communi- cable diseases prior to departure and on arriving flights may be necessary to highlight the specific nuances necessary for an effective communicable disease response. This framework provides guidance to assist air- port leadership in developing or revising communi- cable disease plans. The legal issues detailed in this digest provide background information on key legal considerations for preparing effective responses to a communicable disease outbreak at an airport. Appendix A: Stakeholders includes a detailed list of potential stakeholders who may be involved in a communicable disease incident at an airport and therefore could be engaged in planning efforts. Appendix B: State and Local Quarantine and Isola- tion Laws of the 10 Busiest U.S. Airports describes state-specific isolation and quarantine statutes in jurisdictions with the country’s 10 busiest airports. Appendix C: Checklist of Legal Issues to Consider in Developing Airport Communicable Disease Pre- paredness Plans provides a specific checklist of key legal points for different types of airports: (1) air- ports with direct international flights, (2) airports with only domestic flights, (3) airports with a CDC quarantine station, and (4) airports without a quar- antine station. This checklist is intended to be used in the planning process to ensure key legal areas are addressed in preparedness plans for communicable disease events at airports. A. Research Process 1. Between February and April 2017, the research team used key search terms to conduct preliminary research on pertinent materials, such as statutes, regulations, and case law through a systematic search using two subscription legal databases (Westlaw and Lexis-Nexis). This research was used to produce a detailed report outline describing the proposed framework contents. 2. After approval of and feedback on the outline, the research team conducted a more in-depth identi- fication and analysis of pertinent materials between May and July 2017. Primary legal research was conducted using Westlaw and Lexis-Nexis. Primary research included search terms regarding commu- nicable diseases, disease surveillance, decontami- nation procedures, privacy, quarantine, isolation, contact tracing, and screening protocols. Relevant guidance documents and peer-reviewed journal publications were found using Google, Google Schol- ar, and other online search engines. A cross-check 5 CDC and DHS created the Do Not Board list in 2007. This list allows U.S. and international public health offi- cials to prevent individuals with certain communicable diseases that may threaten public health from boarding commercial flights that originate or arrive in the United States. Criteria for Requesting Federal Travel Restrictions for Public Health Purposes, Including for Viral Hemorrhagic Fevers, 80 Fed. Reg. 16,400 (Mar. 27, 2015); U.S. Centers For Disease Control anD Prevention, Questions and Answers about the Federal Register Notice: Criteria for Recommending Federal Travel Restrictions for Public Health Purposes, Including for Viral Hemorrhagic Fevers, CDC.Gov, https://www.cdc.gov/quarantine/qas-frn-travel- restriction.html (last visited Mar. 12, 2018). 6 smith & GreenberG, supra note 1, at 29. 7 Id. 8 smith & GreenberG, supra note 1, at 57.