Will the Real Evidence-Based Ebola Policy Please Stand Up? Seven Takeaways From Maine DHHS v. Hickox

UPDATES (11/9/14): NPR reports that Hickox's boyfriend  has withdrawn from nursing school and that the two will move out of the state after Nov. 10. Alas, in so reporting, NPR claims that Maine had "sought a court order to require [Hickox] to stay indoors." Apparently NPR doesn't read TFL (or court petitions). Meanwhile, I found this recent JAMA news report about what we do and don't know about Ebola enlightening. Both links via Ross Silverman on Twitter (@phlu). Finally, thanks to Christian Turner for plugging the post on the latest episode of the always interesting Oral Argument podcast.

The case I mentioned in my last post, Maine Department of Health and Human Services v. Kaci Hickox is no more. Hickox and public health officials agreed to stipulate to a final court order imposing on Hickox the terms that the court had imposed on her in an earlier, temporary order. Until Nov. 10, when the 21-day incubation period for Ebola ends, Hickox will submit to "direct active monitoring" and coordinate her travel with Maine public health authorities to ensure that such monitoring occurs uninterrupted. She has since said that she will not venture into town or other public places, although she is free to do so.

Below is a detailed account of the case, which suggests the following lessons:

1. As Hickox herself described it, the result of her case is a “compromise,” reflecting neither what Hickox nor what Maine initially wanted.
2. That compromise was achieved by the parties availing themselves of the legal process, not through Hickox’s civil disobedience.
3. The compromise is not easily described, as it has been, as a victory of science-based federal policy over fear-based state demagoguery. By the time the parties got to court, and perhaps even before then, what Maine requested was consistent with U.S. CDC Guidance, albeit a strict application of it. What Hickox had initially offered to do, by contrast, fell below even the most relaxed application of those guidelines, although by the time the parties reached court, she had agreed to comply with that minimum.
4. The compromise applies only to Hickox, and was based on a stipulation by the parties to agree to the terms that the court had temporarily imposed after reviewing a limited evidentiary record. Additional evidence and legal arguments that the state might have raised in the now-cancelled two-day hearing could have resulted in a different outcome.
5. A substantially different outcome, however, would have been unlikely under Maine’s public health statute. Indeed, it is not clear that Maine’s public health statute allows public health authorities to compel asymptomatic people at-risk of developing Ebola to do anything, including comply with minimum CDC recommendations.
6. “Quarantine” is a charged, but ambiguous, term. It allows us to talk past one another, to shorthand and needlessly politicize a much-needed debate about appropriate policy, and to miss the fact that the CDC Guidance in some cases recommends what could be fairly described as a "quarantine" for people like Hickox and requires it for asymptomatic people with stronger exposure to Ebola (but who are still probably less likely to get sick than not).
7. It’s not clear who has bragging rights to Ebola policy "grounded in science," or what that policy looks like.

The Jersey Devil

At around 1 p.m. on Oct. 24, nurse Kaci Hickox, a former U.S. CDC “disease detective,” landed at Newark Liberty International Airport. She had just come from Sierra Leone, one of three countries in western Africa, along with Liberia and Guinea, currently experiencing widespread transmission of Ebola (hereinafter, “West Africa,” apparently), where for weeks, and as recently as Oct. 21, she had intensively treated critically ill Ebola patients alongside Doctors Without Borders.

On Oct. 8, the Centers for Disease Control and Prevention (CDC) and the U.S. Department of Homeland Security's Customs and Border Protection (CBP) had jointly announced "enhanced Ebola screening" (CDC/DHS Screening Policy) at Newark and four other airports that collectively receive over 94% of travelers from West Africa. That policy provides, in relevant part:

• Travelers from Guinea, Liberia, and Sierra Leone will be escorted by CBP to an area of the airport set aside for screening.
• Trained CBP staff will observe them for signs of illness, ask them a series of health and exposure questions and provide health information for Ebola and reminders to monitor themselves for symptoms. Trained medical staff will take their temperature with a non-contact thermometer.
• If the travelers have fever, symptoms or the health questionnaire reveals possible Ebola exposure, they will be evaluated by a CDC quarantine station public health officer. The public health officer will again take a temperature reading and make a public health assessment. Travelers, who after this assessment, are determined to require further evaluation or monitoring will be referred to the appropriate public health authority.
• Travelers from these countries who have neither symptoms/fever nor a known history of exposure will receive health information for self-monitoring.

On Oct. 22, New Jersey Gov. Chris Christie announced a Statewide Ebola Preparedness Plan (NJ Plan), which provides, in relevant part, that “symptomatic travelers will be immediately transferred to one of three designated New Jersey hospitals.”

Although it was not in place when Hickox arrived, under the CDC’s Oct. 27 Interim U.S. Guidance for Monitoring and Movement of Persons with Potential Ebola Virus Exposure (CDC Guidance), healthcare workers (HCWs) returning from treating Ebola patients in West Africa who show any symptoms consistent with Ebola, including fever of 100.4 or more, require, like the NJ Plan, “rapid isolation with immediate contact of public health authorities to arrange for safe transport to an appropriate healthcare facility for Ebola evaluation."

Similarly, a Nov. 5 CDC flow chart for triaging people in ambulatory settings advises that people who have either traveled to West Africa within the past 21 days or had contact with an Ebola patient (much less both) and has symptoms consistent with Ebola, like fever, may meet the CDC criteria for a “Person Under Investigation for Ebola” (probably not the best label the CDC could have come up with) and should be "immediately" isolated and “placed in a private room or area, preferably enclosed with private toilet or covered commode.”

Pursuant to the CDC/DHS Sceening Policy and the NJ Plan, Hickox was identified as having come from Sierra Leone and having had contact with Ebola patients and screened for symptoms of Ebola. At some point during what was by her account (and all accounts) a lengthy and chaotic process, after initially registering no fever, airport authorities detected a fever of 101, using a no contact thermometer (also known as a thermal forehead scanner), as per the CDC/DHS Screening Policy. Hickox protested that she did not feel subjectively feverish and that the reading was the result of an imprecise device falsely reporting as a fever the fact that she was (understandably) flushed. Hickox would later say that she was “detain[ed] in the airport for no reason.”

Late that afertnoon, Gov. Christie and New York Gov. Andrew Cuomo jointly announced that Ebola HCWs returning to the U.S. through their states would be subject to mandatory 21-day quarantines. That evening, Hickox was transported to one of the three hospitals identified in the NJ Plan and placed in isolation — famously, in a tent fitted with a port-a-potty. There, she says, clinicians quickly determined that she simultaneously registered 98.6 with an oral thermometer and 101 with a no contact thermometer, suggesting that the she did not, in fact, have a fever. Nevertheless, she continued to be detained and was tested, reportedly twice, for Ebola. The first test came back negative on the morning of Oct. 25, but such tests aren’t necessarily expected to detect Ebola so early in the incubation period, when the viral load is low. These negative tests therefore could not rule out the possibility that Hickox was infected with and would still develop Ebola.

Late on Oct. 26, Gov. Christie clarified that mandatory quarantines could be served at home. By the next morning, it was announced that Hickox would be released from the hospital later that day, although she would remain under a mandatory New Jersey “quarantine” in which she was allowed to travel within or even leave the state, so long as she did so using private transport. Christie explained, “If she was continuing to be ill she’d have to stay. She hadn’t had any symptoms for 24 hours and she tested negative for Ebola,” he said. “So there was no reason to keep her.”

Hickox’s negative tests, combined with the normal oral temperature reading, should have indicated that she had probably never run a fever since landing in the U.S. and, more to the point, that any fever she may have had was not due to Ebola. But holding Hickox for some period of time, long enough to test her and to observe that no fever or other symptoms were present, seems reasonable under the circumstances. It was also in keeping with state — and federal — policy. (A full 21-day quarantine, blanketly applied to all returning HCWs, is of course an entirely different matter.)

At around 1 p.m. on Oct. 27, Hickox was released from hospital quarantine after about 65 hours, and set off for her home state of Maine, in private transport apparently provided to her by the state of New Jersey. Maine public health authorities were notified of her intent and Maine Gov. Paul LePage issued a statement announcing that Maine would “follow the guidelines set by the U.S. Centers for Disease Control (CDC) for medical workers who have been in contact with Ebola patients. Additionally, we will work with the healthcare worker to establish an in-home quarantine protocol to ensure there is no direct contact with other Mainers until the period for potential infection has passed.”

 

CDC Ebola Guidance: Four Risk Tiers

The guidelines to which LePage referred, the U.S. CDC issued an Interim U.S. Guidance for Monitoring and Movement of Persons with Potential Ebola Virus Exposure (CDC Guidance), were issued that same day. The Guidance notes (p.4) that 

Federal communicable disease regulations, including those applicable to isolation and other public health orders, apply principally to arriving international travelers and in the setting of interstate movement. State and local authorities have primary jurisdiction for isolation and other public health orders within their borders. Thus, CDC recognizes that state and local jurisdictions may make decisions about isolation, other public health orders, and active (or direct active) monitoring that impose a greater level of restriction than recommended by federal guidance, and that decisions and criteria to use such public health measures may differ by jurisdiction.

Nevertheless, the Guidance is intended to “provide[] public health authorities and other partners with a framework for determining the appropriate public health actions based on risk factors and clinical presentation. It also includes criteria for monitoring exposed people and for when movement restrictions may be indicated” (p. 4).

The CDC elsewhere explains that “[q]uarantine separates and restricts the movement of people who were exposed to a contagious disease to see if they become sick.” The Guidance provides a similar definition of quarantine (“the separation of an individual or group reasonably believed to have been exposed to a quarantinable communicable disease, but who is not yet ill (not presenting signs or symptoms), from others who have not been so exposed, to prevent the possible spread of the quarantinable communicable disease”), but nowhere else in the Guidance is “quarantine” mentioned, as such. Instead, the CDC Guidance defines four risk tiers — High, Some, Low, and No risk — based on exposure to Ebola and offers recommendations for monitoring and, in some cases, restricting the movements of both symptomatic and asymptomatic people within each tier.

A person is defined as “Some risk” if, while in a country with “widespread Ebola virus transmission [including Sierra Leone],” she had “direct contact while using appropriate PPE [personal protection equipment] with a person with Ebola while the person was symptomatic.” Those whom the CDC considers to have had per se “direct contact” with Ebola patients include “doctors, nurses, physician assistants and other health care staff, as well as ambulance personnel, burial team members, and morticians.” According to the affidavit of the Maine CDC (MeCDC) director, Dr. Sheila Pinette (Pinette Affidavit), which would later be filed in support of a petition against Hickox, Hickox “is a nurse who, for several weeks until October 20, 2014 was treating patients who had been diagnosed with Ebola” in Sierra Leone. The Pinette Affidavit also notes that as late as Oct. 20, her last night at the Ebola Management Center in Sierra Leone, Hickox was providing direct care to critically ill Ebola patients. Hence, Hickox falls within the CDC’s “Some risk” category. (I’ve not seen anyone, including Hickox or her counsel, dispute this categorization.)

 

CDC Guidance for “Some Risk” Persons

Of those whose exposure to Ebola places them in the “Some risk” category, the CDC guidance recommends different measures for those experiencing symptoms, like fever, headache, fatigue, muscle pain, or diarrhea, which are consistent with Ebola, and those who are asymptomatic. For those who, like Hickox, are asymptomatic, a Table provides as follows:

1. Direct active monitoring;
2. The public health authority, based on a specific assessment of the individual’s situation, will determine whether additional restrictions are appropriate, including [I cannot get Typepad to do this, but pleae pretend that the following bullet points are labeled a, b, and c—MM]:
• Controlled movement: exclusion from long-distance commercial conveyances (aircraft, ship, train, bus) or local public conveyances (e.g., bus, subway);
• Exclusion from public places (e.g., shopping centers, movie theaters), and congregate gatherings;
• Exclusion from workplaces for the duration of a public health order, unless approved by the state or local health department (telework is permitted);
3. Non-congregate public activities while maintaining a 3-foot distance from others may be permitted (e.g., jogging in a park);
4. Other activities should be assessed as needs and circumstances change to determine whether these activities may be undertaken;
5. Any travel will be coordinated with public health authorities to ensure uninterrupted direct active monitoring;
6. Federal public health travel restrictions (Do Not Board) may be implemented based on an assessment of the particular circumstance

Note that some of these measures are always recommended for Some risk persons (items 1, 4, and 5), while others may or may not be recommended, depending on an individualized assessment (items 2a-c, 3, and 6), which I will call CDC Discretionary Measures. Note, too, that there are two types of measures at play: symptom monitoring (items 1 and 5, which are firm recommendations) and movement restriction (items 2a-c, 3, 4, and 6, all of which are discretionary except the rather vague item 4).

(It’s unclear to me why item 3 is not grouped with the three discretionary measures under item 2. Textually, the only difference seems to be that the CDC presents the item 2 discretionary measures neutrally (“The public health authority . . . will determine whether additional restrictions are appropriate”) while the CDC presents item 3 in such a way that suggests that the default is not to permit it (“Non-congregate public activities while maintaining a 3-foot distance from others may be permitted,” not “may be excluded”). That doesn’t make a lot of sense, since wandering around while remaining a 3-foot distance from others is almost certainly a lower-risk activity than taking public transportation, entering public and congregate places, and going to work. But I digress.)

Symptom Monitoring: Self-Monitoring, Active Monitoring & Direct Active Monitoring

Media reports continue to conflate them, but the CDC Guidance clearly distinguishes three levels of vigilance regarding symptom monitoring of asymptomatic at-risk persons: self-monitoring, active monitoring, and direct active monitoring:

Active monitoring means that the state or local public health authority assumes responsibility for establishing regular communication with potentially exposed individuals, including checking daily to assess for the presence of symptoms and fever, rather than relying solely on individuals to self-monitor and report symptoms if they develop. Direct active monitoring means the public health authority conducts active monitoring through direct observation.

In general, the CDC recommends that those in higher risk tiers (based on Ebola exposure) comply with greater levels of vigilance for symptom monitoring. The CDC does not recommend self-monitoring (by which we mean twice daily temperature and other checks) for anyone. It recommends that anyone at low, Some, or High risk for developing Ebola be subject to either active or directive active monitoring. And for those who are at “no identifiable risk” of developing Ebola (like virtually everyone reading this right now), the CDC recommends what your mother recommends: go about your life, and if you start to feel sick, then respond to symptoms as they arise. For low risk persons, the CDC recommends active or direct active monitoring, depending on various factors, and for Some- and High-risk persons, it recommends directive active monitoring.

So what does the CDC recommend for Some risk persons like Hickox? As the Table above makes clear, direct active monitoring, and coordination of travel with local public health authorities to ensure that this is uninterrupted. As the CDC Guidance puts it clearly in the narrative section: “Asymptomatic individuals in the Some risk category should have direct active monitoring until 21 days after the last potential exposure.” Note, moreover, that although various kinds of movement restriction may or may not be appropriate for Some risk persons, those at risk persons subject to the highest level of symptom vigilance, direct active monitoring, are expected to at least let public health authorities in on their planned travel and activities so that such an individualized assessment can be made:

Direct active monitoring should include discussion of plans to work, travel, take public conveyances, or be present in congregate locations. Depending on the nature and duration of these activities, they may be permitted if the individual has been consistent with direct active monitoring (including recording and reporting of a second temperature reading each day), has a normal temperature and no symptoms whatsoever, and can ensure uninterrupted direct active monitoring by a public health authority.

The CDC Guidance explains why it’s important that people with actual or possible exposure to Ebola be monitored for symptoms (to be frank, it offers no real explanation for why one method of monitoring is better than another; I try my hand at one later in this post):

Active (or direct active) monitoring is justified for individuals in the Some risk and low (but not zero) risk categories based on a reasonable belief that exposure may have occurred, though the exact circumstances of such exposure may not be fully recognized at any given time. Under such conditions, active (or direct active) monitoring provides a substantial public health benefit. Given the extent and nature of the epidemic, travelers from countries with widespread transmission may be unaware of their exposure to individuals with symptomatic Ebola infection, such as in community settings. Healthcare workers taking care of Ebola patients may have unrecognized exposure even while wearing appropriate PPE.

Movement Restriction

How does the CDC recommend that public health authorities determine whether the CDC Discretionary Measures are appropriate in individual cases? In one place, the Guidance suggests that these “additional restrictions” may be not only appropriate, but enforced through “public health orders,” in response to noncompliance:

Additional restrictions, such as use of public health orders, may be warranted if an individual in the Some risk or Low (but not zero) risk categories fails to adhere to the terms of active (or direct active) monitoring. Such noncompliance could include refusal to participate in a public health assessment by an individual with documented travel from a country with widespread transmission, or other potential contact with a symptomatic Ebola patient. Without such information, public health authorities may be unable to complete a risk assessment to determine if an individual has been exposed to, or has signs or symptoms consistent with, Ebola.

Elsewhere, however, the Guidance says that several factors (of which noncompliance is only one) should be considered:

Factors to consider include the following: intensity of exposure (e.g., daily direct patient care versus intermittent visits to an Ebola treatment unit); point of time in the incubation period (risk falls substantially after 2 weeks); complete absence of symptoms; compliance with direct active monitoring; the individual’s ability to immediately recognize and report symptom onset, self-isolate, and seek medical care; and the probability that the proposed activity would result in exposure to others prior to effective isolation.

The Guidance provides no, erm, guidance regarding how many of these factors should weigh in favor of movement restriction before such restriction is appropriate (whether via request and voluntary compliance or a public health order), nor does under what circumstances it might be appropriate to impose Some of the CDC Discretionary Measures but not others.

Let’s call application of the CDC Guidance that involves only the firm recommendations for all Some risk persons (direct active monitoring and coordination of their travel with public health authorities to ensure uninterrupted direct active monitoring) “Minimum CDC.” Let’s call an individualized assessment that results in all of the CDC Discretionary Measures being requested or imposed — exclusion from public transportation, public places and congregate gatherings, and the workplace (items 2a-c) and even exclusion from non-congregate public activities while maintaining a 3-foot distance from others (item 3) — “Full CDC.” Like “quarantine,” the CDC Discretionary Measures are designed to “separate” potentially exposed individuals from non-exposed individuals. If a public health authority were to conclude that Full CDC was appropriate in a particular case, that would be awfully hard to distinguish from a total quarantine or, in laypersons’ terms, “go to your home (or other public or private facility) and don’t come out for 21 days.”

That would seem to somewhat problematize widespread claims that “quarantines” for returning Ebola HCWs aren’t consistent with federal policy or science-based.

 

Maine CDC Ebola Protocol

As noted above, on Oct. 27, Hickox was released from the New Jersey hospital and announced her intention to travel to her home state of Maine. Maine Governor Paul LePage issued a statement in which he said that Maine would “follow the guidelines set by the U.S. Centers for Disease Control (CDC) for medical workers who have been in contact with Ebola patients. Additionally, we will work with the healthcare worker to establish an in-home quarantine protocol to ensure there is no direct contact with other Mainers until the period for potential infection has passed.”

The Maine CDC (MeCDC) issued an Ebola Protocol for Travelers [to Maine] from Liberia, Sierra Leone and Guinea (MeCDC Protocol) the same day clarifying LePage’s statement. For asymptomatic people who had no direct contact with Ebola patients in West Africa (not Hickox), the MeCDC Protocol provides:

Pursuant to the federal CDC guidelines, an individual will be required to make contact daily with the Maine CDC to report his or her temperature, which is taken twice daily. In addition, the traveler will be required to notify the Maine CDC immediately of any other Ebola symptoms, such as headache, joint and muscle aches, weakness, diarrhea, vomiting, stomach pain, lack of appetite or abnormal bleeding, as well as any additional travel plans.

This appears to describe active monitoring, and it is indeed what the CDC advises for asymptomatic people with this level of exposure to Ebola (Low risk, in the CDC’s parlance).

For asymptomatic people who, like Hickox, did have direct contact with Ebola patients in West Africa (Some risk, in the CDC’s parlance), the MeCDC Protocol provides that, “[i]n addition to the federal CDC guidelines outlined above [for Low risk persons], Maine will require active monitoring to be followed in this instance.” That seems redundant, because, as I said, what’s described above is active monitoring. What the MeCDC Protocol means to say, I think, is that it will require, per CDC Guidance, direct active monitoring for this risk category.

Moving on, the MeCDC Protocol next provides:

In addition Maine will take further measures, out of an abundance of caution, to ensure public safety. We will work collaboratively with the affected individual to establish quarantine of the individual in his or her home for 21 days after the last possible exposure to Ebola. . . . Under this policy, Maine will make every possible effort to implement an agreed-upon in-home quarantine. We fully expect individuals to voluntarily comply with an in-home quarantine. The Maine CDC will coordinate care services such as food and assistance with partners as needed.

For reasons that may now be obvious, the reference to “in-home quarantine” is unfortunate in its ambiguity. For laypersons, again, it means “stay in your home and do not leave under any conditions.” That may or may not be what, on Oct. 27, Maine intended for Hickox and any future travelers to Maine. On one hand, LePage’s statement said that the “in-home quarantine” was designed only to prevent Hickox from having any “direct” contact with others; that seems to contemplate non-direct contact with others, at least inside of her home and perhaps outside of it as well. As we’ve seen, that’s consistent with Full CDC and even a slightly less strict version of it in which Some risk persons are permitted to engage in non-congregate activities while maintaining a 3-foot distance from others (CDC item 3). Let’s call this latter application of the CDC Guidance “Strict CDC.”

On the other hand, use of the word “additionally” in LePage’s statement, and “in addition” in the Protocol, invite an interpretation that Maine intended to prescribe measures above and beyond what the CDC Guidance recommends. If that was the intent, however, Maine quickly took such a total home quarantine off the table, as we’ll see.

 

Negotiations Between Hickox and Maine Leading Up To Court Action

Hickox began the 10-hour drive to Maine from the New Jersey hospital where she had been quarantined at around 1 p.m. on Oct. 27. Recall that the MeCDC Protocol issued that day contemplated that individuals subject to it, including Hickox, would voluntarily comply, and that MeCDC would “work collaboratively with the affected individual to establish quarantine of the individual in his or her home for 21 days.” According to MeCDC Director Pinette’s Affidavit (¶ 11), officials from MeCDC contacted Hickox as she was en route from New Jersey to Maine, “and requested that she call [Pinette] to discuss logistics. [Hickox] did not do so, but did send an e-mail indicating that she intended to spend a night or two in Freeport before continuing on to Fort Kent. [Hickox] then changed her plan, and travelled to Fort Kent before completing an agreement with Maine CDC about her travel.”

By the next morning, unverified reports appeared, including on MSNBC’s Morning Joe, that Hickox had said that she would not comply with the MeCDC Protocol. Hickox confirmed these reports in an Oct. 29 appearance by Skype on the Today Show alongside her lawyer, where Matt Lauer asked her what precautions she thought it was “reasonable” for her to take to protect the public. She said that if she develops symptoms, she would “isolate in [her] house” and seek testing and safe transport to a facility that could evaluate her. But in her current asymptomatic condition, she said she was “not a risk to the American public” and was only willing to practice “self-monitoring, taking [my] temperature twice a day.” Policies, she said, “need to be evidence-based,” and not based on “bullying” by politicians.

The same day, Gov. LePage issued a statement noting that Hickox “has been unwilling to follow the protocols set forth by the Maine CDC and the U.S. Centers for Disease Control for medical workers who have been in contact with Ebola patients. We hoped that the healthcare worker would voluntarily comply with these protocols, but this individual has stated publicly she will not abide by the protocols,” and Maine began exploring legal options to compel Hickox to comply. Meanwhile, Gov. LePage’s chief legal counsel and the state Attorney General spent hours on Oct. 29 negotiating a voluntary plan with Hickox and her attorneys.

On Oct. 30, Gov. LePage’s office issued another statement announcing that those negotiations had failed and that Hickox had declined to comply with Maine’s request that she comply with the U.S. CDC Guidance, albeit a fairly strict application of that Guidance. Of the CDC Discretionary Measures listed in the U.S. CDC table above, Maine wanted Hickox to adhere to all but item 3 (exclusion from non-congregate places while maintaining a 3-foot distance from others). As the Governor’s office nutshelled his new policy, it would permit a person posing “Some risk” of spreading Ebola to “go for walks, runs or ride their bicycle, but would prevent such a person from going into public places or coming within three feet of other people in non-congregate gatherings.” Let us call this set of measures “Strict CDC.” That day, Hickox and her boyfriend went for a bike ride, and LePage told reporters that “as long as she’s not touching other people, or, you know, [she’s] staying at a distance from other people, I don’t see the harm.” Hickox, for her part, had agreed to allow public health officials to go to her home and check her for symptoms each day.

 

Individualized Assessment Leading to Maine’s Request that Hickox Comply with Strict CDC

How did Maine determine that Strict CDC was appropriate for Hickox? Recall that the CDC Guidance indicates that public health authorities should consider the following factors in determining whether a particular these additional restrictions are appropriate in an individual case:

1. intensity of exposure (e.g., daily direct patient care versus intermittent visits to an Ebola treatment unit)
2. point of time in the incubation period (risk falls substantially after 2 weeks)
3. complete absence of symptoms;
4. compliance with direct active monitoring;
5. the individual’s ability to immediately recognize and report symptom onset, self-isolate, and seek medical care; and
6. the probability that the proposed activity would result in exposure to others prior to effective isolation

Some of these factors cut in Hickox’s favor (3, 5), while others (1, 2, perhaps 4) do not. On one hand, she is asymptomatic (3) and a nurse with experience with Ebola symptoms (5).

On the other hand, with respect to (1), as the MeCDC affidavit notes, Hickox was involved in daily, intense (not sporadic or distant) caring of, and thus exposure to, critically ill Ebola patients for weeks. (Remember, CDC Guidance assumes a HCW who followed PPE and is unaware of any breaches, so “exposure” here simply means caring for Ebola patients in an Ebola-ravaged setting while complying with current best practices for preventing transmission of the virus from those patient to oneself. A HCW who cared for Ebola patients without PPE, or who experience a breach of PPE, such as a needle stick, would be “High risk,” not “some risk,” and subject to different measures altogether.) Indeed, in her own Dallas Morning News op-ed, which she wrote from her New Jersey tent by text message to her former fellow CDC “disease detective” Dr. Seema Yasmin, now a Dallas Morning News staff writer, she recalled her

last night at the Ebola management center in Sierra Leone. I was called in at midnight because a 10-year-old girl was having seizures. I coaxed crushed tablets of Tylenol and an anti-seizure medicine into her mouth as her body jolted in the bed. It was the hardest night of my life. I watched a young girl die in a tent, away from her family.

Ebola patients are increasingly infectious as the disease progresses and reach peak infectiousness upon death (which is why burial practices in West Africa have been a significant method of disease transmission). As for (2), the affidavit notes that Ebola symptoms are most likely to manifest, if they will at all, during the second week after exposure, which Hickox entered on Oct. 28.

As for (4), compliance with direct active monitoring, that’s less clear-cut. On one hand, it’s not as if Hickox agreed to comply with direct active monitoring and then failed to meet the public health authority at the designated time and place for observation of symptoms. At some time between Oct. 28 and Oct. 30, she apparently began voluntarily submitting to direct active monitoring, at least pending resolution of her legal case, and maybe beyond that, without incident.

On the other hand, just days prior she had appeared on national television to declare that she posed “no risk” to the public, that she had been detained at Newark airport for “no reason” despite registering a temperature and having just come from treating a dying Ebola patient at the peak level of infectiousness, and that self-monitoring (two levels below the CDC’s recommendation of direct active monitoring) was sufficient and anything else was unscientific, purely the result of fear, ignorance, and political bullying, and a violation of her human rights.

Finally, as for (6), the probability that the proposed activity would result in exposure to others prior to effective isolation, this is hard to assess, since we don't know whether there were specific activities that Hickox wanted to be able to do (for reasons discussed towards the end of this post, that seems unlikely) or whether she was protesting movement restrictions on principle. The CDC Guidance here seems intended to inform a conversation between at-risk individuals and public health authorities about how they can balance the individual's need to engage in certain activities with the risk those activities post of transmission. Movement restrictions might be determined on a sliding scale: no, please don't go to the public gym, where you may leave your bodily fluid (sweat) on equipment that others are very likely to touch, but yes, do feel free to take a walk, bike ride, or jog outside.

 

Maine District Court: Petition and Temporary Order

On Oct. 30, after Hickox declined to voluntarily comply with Strict CDC, which Maine described not as “in-house quarantine” but as direct active monitoring and “restrictions on movement,” MeDHHS filed a petition for a court order under 22 M.R.S. §812(1), Maine’s public health statute, which provides: “If, based upon clear and convincing evidence, the court finds that a public health threat exists, the court shall issue the requested order for treatment or such other order as may direct the least restrictive measures necessary to effectively protect the public health.” “Public health threat,” in turn, means “any condition or behavior that can reasonably be expected to place others at significant risk of . . . infection with a notifiable disease or condition.” Such court orders require a full hearing under Maine’s statute, to be held no more than 10 day after the petition is filed.

According to the Pinette Affidavit filed in support of the Petition, Hickox had said that she was willing to submit to direct active monitoring (presumably for the remainder of the 21 days, although this isn’t entirely clear), but “beyond October 30, 2014, she does not intend to comply with some of the other measures requested . . . which are based on the guidance issued by US CDC” (¶ 31). The state therefore requested that the court issue an order pending hearing compelling Hickox to comply with Strict CDC.

The court agreed to issue an order pending hearing (whether ordering Hickox to comply with Strict CDC, something less than that, or nothing at all remained to be seen, of course). Because Hickox’s counsel had stipulated that she was willing to agree not to leave her home before 9 a.m. on Oct. 31, the court entered a temporary order the same day compelling Hickox to comply with Strict CDC until it issued the order pending hearing on Oct. 31.

 

Maine District Court: Order Pending Hearing

On Oct. 31, the court issued the promised, and superseding, order pending hearing, which the court scheduled for Nov. 4 and 5. As the court noted, pursuant to 22 M.R.S. § 811(3), pending hearing on a petition for a public health order, the court is only authorized to “make such orders as it deems necessary to protect other individuals from the dangers of infection” (emphasis by the court). This is a somewhat different standard than the court would have applied in making a final determination on the merits, had the parties not settled. The court further noted that the “only information” it currently had before it concerning “the dangers of infection posed by” Hickox came from the state itself, via the Pinette Affidavit, which attached and incorporated by reference the CDC Guidance. Had the two-day hearing proceeded, the court might have ruled based on additional evidence and/or legal argument.

Although that affidavit provided evidence that Hickox was exposed to, and may be infected with, Ebola, Pinette repeatedly averred that even if someone is infected with Ebola, so long as they are asymptomatic, they are not yet infectious, and that Hickox is asymptomatic.

Symptom Monitoring

The affidavit, echoing the CDC Guidance, explains that the “purpose of direct active monitoring is to ensure that if individuals with epidemiologic risk factors become ill, they are identified as soon as possible after symptoms onset so they can be rapidly isolated and evaluated. Once a person is symptomatic they become contagious to others, and their infectiousness increases very quickly” (¶ 28).

As I noted in an earlier section of this post, although the CDC Guidance (along with the Pinette Affidavit) explains why it’s important that people with actual or possible exposure to Ebola be monitored for symptoms, it frankly offers no explanation that would allow a court to conclude that direct active monitoring—rather than active monitoring or even self-monitoring—is “necessary” to protect others from infection. Direct active monitoring is more burdensome than these alternatives because it requires the individual to be in the physical presence of a public health authority at least once per day (either allowing the authority into their home or agreeing to travel to meet them somewhere else).

Nevertheless, the court found that the state had shown by clear and convincing evidence that it was indeed “necessary” to order Hickox to: (a) comply with direct active monitoring; (b) coordinate her travel to ensure uninterrupted direct active monitoring; and (c) immediately notify authorities if any symptoms appear.

Movement Restriction

In the affidavit, Pinette noted that the CDC sometimes recommends additional measures designed to restrict the movement of Some Risk persons (the CDC Discretionary Measures), and she provided facts that would allow the court to engage in the kind of analysis in which I engaged above (on one hand, she’s asymptomatic; on the other hand, she had intense contact with extremely infectious Ebola patients, and so on).

But the court isn’t bound by the CDC Guidance; in issuing an order pending hearing under Maine’s public health statute, it was bound by a “necessary to protect others from infection” standard. So the state needed to show, by clear and convincing evidence, that excluding Hickox from public and congregate places and work was “necessary” to protect others.

Yet neither Pinette — nor, it must be said — the attached CDC Guidance — explains why it is “necessary” to restrict the movement of asymptomatic people. The CDC Guidance does a fairly good job of explaining why some asymptomatic people are at higher risk than others of developing Ebola (did they follow PPE or not, did they have lots of intentional direct contact with critically ill Ebola patients or just visit a place with an outbreak of the virus, etc.). But the Guidance does not even attempt to explain why some activities or movements of asymptomatic people pose higher risks of infecting others than do other activities. Rather than recommend monitoring for all at-risk people, it simply asserts that for some asymptomatic people, restriction of movement is either possibly appropriate, depending on an individualized assessment (Some Risk), or required for all people within a tier (High Risk).

The problem for the court isn’t merely an absence of evidence for this policy; the problem is also evidence provided by both the Pinette Affidavit and the attached Guidance themselves that seems to undermine the “necessity” (and may even suggest the futility) of the policy. The CDC Guidance nowhere claims, as does the Pinette Affidavit, that asymptomatic people are incapable of transmitting Ebola. But it does categorize those who have “[c]ontact with an asymptomatic person who had contact with [a] person with Ebola” (e.g., someone who has contact with Hickox now, while she’s asymptomatic but before we know whether she will develop Ebola or not) and those who have “[c]ontact with a person with Ebola before the person developed symptoms” (e.g., the same person, if Hickox later ended up developing Ebola) as having “no identifiable risk” of getting Ebola, which amounts to the same thing.

Now, there are stories one can tell to explain why restricting at least some of the movements of at least some at-risk people is a plausible policy. I take a stab at telling such a story below. But Maine did not even assert a theory (much less evidence supporting that theory) under which restricted movement is appropriate (much less “necessary”) to prevent an asymptomatic person incapable, while asymptomatic, of infecting anyone from…infecting someone.

And so on the factual record before it, the court predictably found that the state had not shown by clear and convincing evidence that restricting the asymptomatic Hickox’s movements was “necessary to protect other individuals from the dangers of infection.” It order her to comply with Minimum CDC until it could rule on the merits after a hearing, which was scheduled for Nov. 4-5.

 

How Might the Court Have Ruled On the Merits Under Maine’s Public Health Law?

But on Nov. 3, the parties agreed, and the court so ordered, that Hickox would comply with the terms of the order pending hearing — i.e., Minimum CDC — until Nov. 10, which marks the end of the 21-day incubation period that is standardly observed. What might have happened had the case gone forward?

To review, in its petition, the state sought a public health order under its §812(1) powers: “If, based upon clear and convincing evidence, the court finds that a public health threat exists, the court shall issue . . . such . . . order as may direct the least restrictive measures necessary to effectively protect the public health.” What is a “public health threat”? §801(10) provides:

“Public health threat” means any condition or behavior that can reasonably be expected to place others at significant risk of exposure to a toxic agent or environmental hazard or infection with a notifiable disease or condition.

(A.)   A condition poses a public health threat if an infectious or toxic agent or environmental hazard is present in the environment under circumstances that would place persons at significant risk of an adverse effect on a person’s health from exposure to or infection with a notifiable disease or condition.

(B.)   Behavior by an infected person poses a public health threat if:

1. The infected person engages in behavior that has been demonstrated epidemiologically to create a significant risk of transmission of a communicable disease;
2. The infected person's past behavior indicates a serious and present danger that the infected person will engage in behavior that creates a significant risk of transmission of a communicable disease to another;
3. The infected person fails or refuses to cooperate with a departmental contact notification program; or
4. The infected person fails or refuses to comply with any part of either a cease and desist order or a court order issued to the infected person to prevent transmission of a communicable disease to another.

(C.)   Behavior described in paragraph B, subparagraphs (1) and (2) may not be considered a public health threat if the infected person demonstrates that any other person placed at significant risk of becoming infected with a communicable disease was informed of the risk and consented to it. (As an aside, in the context of communicable disease, where the risk is non-linear and the cost of treating disease can be substantial and resource-intensive, this provision strikes me as ignoring potentially very significant negative externalities.)

Section §801(5) defines “infected person” as “a person who is diagnosed as having a communicable disease or who, after appropriate medical evaluation or testing, is determined to harbor an infectious agent.” Hickox isn’t an “infected person.” Unless the state can avail itself of a portion of this statutory provision that doesn’t require the respondent to be an “infected person,” the state cannot compel Hickox to do anything under this statutory provision.

The preamble, as it were, of §801(10) simply refers to “any condition or behavior,” and is not limited to the behaviors (or conditions) of infected persons. If we’re free to ignore subsections (A) and (B) as, say, merely exemplary of behaviors and conditions that can constitute a public health threat, then the legal standard would be this: The state needs to show, by clear and convincing evidence, that (1) Hickox “can reasonably be expected to place others at significant risk” of Ebola infection and (2) the things the state wants her to do constitute the “least restrictive measures necessary to effectively protect” those people from that risk.

But subsection (C) makes this reading a bit awkward. That subsection says that behavior by an infected person that would otherwise subject that person to a public health order will not do so if the person affected by the behavior knowingly consented to risk it posed — but only if that behavior is listed under subsection (B) and, therefore, involves an “infected person.” In other words, if the preamble provides its own cause of action, without the need to fit the risky behavior or condition into subsection (A) or (B), then we’re left with a situation where an endangered person’s informed consent is a bar to a public health order restraining the behavior of an infected person (under subsection (B)), but not that of an uninfected person who poses an identical risk (under the preamble). That seems odd.

But let’s assume that viewing the preamble as providing its own cause of action is a legitimate reading of the statute, such that the state’s case depends only on the respondent being a “significant risk,” not being demonstrably infected. Could the state show, by clear and convincing evidence, that (1) Hickox “can reasonably be expected to place others at significant risk” of Ebola infection and (2) the things the state wants her to do constitute the “least restrictive measures necessary to effectively protect” those people from that risk? Probably not.

Although the statute does not define “significant” risk, it’s difficult to argue that Hickox meets this threshold (and impossible to do so on the existing court record). The first hurdle is explaining how an asymptomatic person who is incapable, while asymptomatic, of infecting anyone could “reasonably be expected to place others at significant risk” of Ebola infection.” The public health threat of Ebola is measured by the time from the onset of symptoms (when the patient becomes infectious) until the patient is isolated. Unlike HIV/AIDS, where you can be infectious without knowing it, and therefore unknowingly pass the virus to others, the same Ebola symptoms that announce the beginning of the infectious period also tend to alert the individual that something is wrong, and those, like returning HCWs, who know that they are at risk for Ebola, what its symptoms are, and how to recognize them in themselves will immediately isolate and seek medical help. By this logic, there is not only no need for restricted movement of asymptomatic people; there is also no need for direct active monitoring or even active monitoring. Self-monitoring alone — exactly what Kaci Hickox wanted to do — would be enough.

 

Will the Real Science-Based Ebola Policy Please Stand Up?

In October, the White House complained that the quarantine policies hastily announced by the governors of New York, New Jersey, Illinois, and several other states were not “grounded in science.” For her part, on the heels of the resolution of her dispute with Gov. LePage, Hickox had this to say:

“We know that Ebola is not transmitted as easily as many other diseases and that self-monitoring and even an enhanced version, which is what most states in the U.S. are going to now . . . This will work,” Hickox said. . . . She blasted New Jersey Gov. Chris Christie for enforcing a new policy that required anyone showing symptoms of Ebola, including an elevated temperature, to be isolated. . . . “I’d like to see more leadership at the national level as well. We really need evidence-based policies and these knee-jerk reactions, you know, they’re just not being well thought out,” she said. “The fight is not over.”

Here’s the thing. There has been “leadership at the national level,” and as discussed above, that leadership has in fact prescribed: that all at-risk people be screened upon entry to the U.S.; that those who show symptoms consistent with Ebola be immediately isolated for evaluation; and that all at-risk people submit to either active or directive active monitoring, not just the self-monitoring that Hickox continues to maintain is sufficient. Indeed, as we’ve seen, Full CDC is hard to describe as anything other than quarantine, and Strict CDC — required for all High Risk people and recommended for some Some Risk people, which was what Maine asked the court to impose on Hickox — comes close (at least judging by the headlines and commentary declaring Hickox’s court victory over Maine’s “quarantine”).

So are these CDC policies “knee-jerk reactions,” the stuff of scientific ignoramuses and political hacks, and not “grounded in science”? If this is where the criticism will now focus, on whether the U.S. CDC policy is “grounded in science” or not, then the  political goal posts have shifted rather dramatically. But let’s put politics to one side and take the question seriously. Why does the CDC insist on direct active monitoring for all asymptomatic Some and High Risk people and for some Low Risk people (who otherwise must comply with active monitoring), recommend restricted movement for some asymptomatic Some Risk people, and mandate restricted movement, “through orders, as necessary,” for all asymptomatic High Risk people? Can these policies be defended scientifically?

Let’s consider symptom monitoring and movement restriction separately, for a returning HCW like Hickox at Some Risk for Ebola. These are people who obviously know how to take their own temperatures and evaluate themselves for other symptoms of Ebola. But the fact that someone is medically qualified to recognize symptoms consistent with Ebola does not mean that they are not subject to the same quirks of human nature as the rest of us, including powerful denial mechanisms that might prevent them from acknowledging to themselves that they may be experiencing symptoms of a lethal disease. Initial symptoms of Ebola — like fatigue, aches, headache, fever, stomach pain, lack of appetite, and diarrhea — are common and nonspecific and therefore can be easily dismissed as a mild cold or a perfectly normal energy dip, if someone is inclined to do so, whether consciously or (more likely) not. As the illness progresses, of course, the symptoms will no longer be able to be dismissed. But by then, the person is much more infectious than she would have been at the onset of symptoms and may have exposed others in the interim.

People might also tend to ignore possible symptoms, delay responding to them, or even delay checking themselves for symptoms if they are focused on something else — say, a work deadline or a significant social event they don’t want to miss, like attending a good friend’s wedding. Many have remarked that it is inconceivable that HCWs — and especially HCWs who spend their vacation time caring for critically ill Ebola patients in West Africa — would ever put others at risk. But HCWs are not saints — not even those who spend their vacation time caring for critically ill Ebola patients in West Africa. Some doctors and nurses text while driving, speed, and engage in various behaviors that endanger their patients. It should not be inconceivable that some of them might put their own interests ahead of others’, especially while telling themselves that they’re “no risk” to the public, that Ebola only happens to other people, and other lies humans tell themselves.

Against this background of human psychology, having to daily report your symptoms to a public health authority (active monitoring) or have a public health authority observe you for symptoms (direct active monitoring) are fairly benign ways of keeping people at risk for Ebola honest with others and with themselves, thereby increasing the likelihood that symptomatic people will be detected quickly and the critical time between symptom onset and isolation reduced. Although the odds of an at-risk person succumbing to these human frailties is on average the same across Low, Some, and High risk tiers, the different probabilities that those in each tier will develop Ebola in the first place means that the public health benefit of imposing these measures is greater, and therefore more justified, in the higher-risk tiers. while low in all tiers, is greater in Direct active monitoring is both marginally more effective and marginally more burdensome for the at risk person than active monitoring.

So maybe there’s a case to be made for (direct) active monitoring. But if someone is not a risk to others until they are symptomatic, and they are participating in (direct) active monitoring designed to detect those symptoms as soon as possible, then what is the benefit of restricting their movements, too? The CDC Guidance FAQ provides one answer. Symptoms may begin during travel, when someone is in a crowded environment that could expose others or when someone is far away from an appropriate isolation facility (Doctors Without Borders requires its returning HCWs to stay within four hours of such a facility, for example):

People at High risk of exposure to Ebola are not allowed to travel on long-distance or local public transportation even if they are well. The reason for this is to prevent possible spread of Ebola if the person develops fever or other symptoms during travel. Those who have Some risk of exposure need to discuss all of their travel plans with their state or local health department, and may not be allowed to travel. People on travel restrictions might be allowed to travel by private plane or car as long as they continue to be monitored during travel. However, they would need to make sure the health department knows their plans and will be able to check in with them every day.

This explanation is consistent with classifying as Low (but not zero) risk those who have “brief direct contact (e.g., shaking hands), while not wearing appropriate PPE, with a person with Ebola while the person was in the early stage of disease.” Again, while people across all risk tiers are equally likely to experience symptom onset in public, those in the higher-risk tiers are relatively more likely to develop symptoms at all, and so restricting their movements is more justified (by the greater chance that it will provide public health benefits) than restricting the movements of those in relatively lower-risk tiers.

Against this argument, weigh the claim, recently made in an Oct. 27 NEJM editorial, that “fever precedes the contagious stage, allowing workers who are unknowingly infected to identify themselves before they become a threat to their community.” If this is true, then fever functions as a warning bell, and that warning bell has the distinct benefit of being susceptible to objective measurement (forehead scanners at Newark Airport notwithstanding). If you don’t trust HCWs to monitor themselves for fever, fine; impose active or even direct active monitoring. But what could be the rationale for imposing movement restrictions, in addition?

One possibility is that the lag time between the onset of benign fever and the onset of infectious symptoms may not always be that long. It might not be long enough for the individual (or the public health authority) to recognize that the individual has a fever and move that person from wherever she is currently traveling, without restriction, to an isolation facility for evaluation and possible treatment.

Another possibility is that not all Ebola patients are given this critical early warning sign. According to this study, published two days after the NEJM editorial referenced above, and in that same journal (if you want to be depressed—and humbled and grateful—note the number of *’s that appear after author names indicating that they have died from Ebola), 11% of 106 patients diagnosed with Ebola did not have a fever upon clinical presentation (i.e., by the time they showed up to a hospital). And according to this very large WHO study (see Tbl. 1), published in NEJM on Sept. 23, 12.9% of 4507 probable and confirmed Ebola cases did not involve a fever during the time between onset of (other) symptoms and clinical presentation. So the best data we have suggests that somewhere between 11 and 13% of symptomatic, infectious Ebola patients do not have the tell-tale sign of fever, and some experts have called for a reexamination of the conventional wisdom.

By definition, these patients have some symptom(s), though. The second-most common Ebola symptom is fatigue, but that is highly subjective and could be dismissed as a normal mid-day energy dip. For instance, recall Craig Spencer, the doctor who treated Ebola patients in Guinea before returning to New York City, where he dutifully checked his temperature twice per day. Spencer “started feeling fatigued Tuesday, though without a fever, officials said.” It’s unclear whether that “fatigue” and “sluggishness” Spencer experienced on Tuesday and Wednesday was a coincidence or an early Ebola symptom, but the latter scenario is surely possible. He famously traveled around the city on those two day, and only when he developed a low-grade fever, nausea, pain, and continuing (or increased?) fatigue on Thursday did he notify public health authorities. CNN quotes officials as stating that Spencer wasn’t “symptomatic” until Thursday, despite his having been fatigued during the prior two days. On the other hand, the same officials acknowledge that he had “contact” with three people (his fiancée and two friends) after he became symptomatic and before isolation.

A final possibility is that the CDC has, to some extent, embraced some version of the Precautionary Principle — or, as Gov. LePage put it, “We don’t know what we don’t know about Ebola.” Here’s how the NEJM editorial explains the scientific case against “quarantines”:

We have very strong reason to believe that transmission occurs when the viral load in bodily fluids is high, on the order of millions of virions per microliter. This recognition has led to the dictum that an asymptomatic person is not contagious; field experience in West Africa has shown that conclusion to be valid. Therefore, an asymptomatic health care worker returning from treating patients with Ebola, even if he or she were infected, would not be contagious.

Is “very strong reason to believe” enough to support this “dictum,” when it is based on observations in the field (not, for obvious reasons, randomized controlled trials of Ebola transmission—though some such animal experiments exist) and concerns a lethal virus susceptible to mutation?

Perhaps not, but we should also recall that although Ebola quickly becomes extremely infectious, it is not very contagious: it is not airborne, and transmission requires direct contact between an infectious person’s bodily fluids (including a droplet that may land on others within a 3-foot radius; hence, that rule) and another person’s broken skin or mucus membranes. Happily, all three people with whom Spencer had contact after the onset of his Ebola symptoms have been cleared of Ebola, as have all of the people with whom Thomas Eric Duncan, the Liberian man who traveled to the U.S. after being infected with Ebola in Liberia and died while being treating in Dallas, lived. Available data suggests that the vast majority of HCWs following PPE do not contract Ebola. Is it possible that a Some Risk person, like Hickox will both develop Ebola (a probability that drops with each passing day, though notably it does not magically vanish to zero at 21 days) and

• become infectious prior to developing symptoms, or
• become infectious upon developing symptoms but fail to recognize (or accept) symptoms as such, or
• fail to immediately isolate themselves despite their recognition of symptom onset, and

engage in some behavior that causes her bodily fluids to come into direct contact with another person’s broken skin or mucus membranes?

Sure. Most returning HCWs can probably be counted on to dutifully monitor themselves — but there’s some “leakage” there, in ways discussed above, where some fraction of people will predictably slip through. And once you impose direct active monitoring on returning HCWs, that can be expected to contain most of the risk that they pose to others — but there’s room for some leakage at this stage, too. And if Maine had wanted to press its case, then it might have done so by trying to chip away at the court’s absolute conclusion that asymptomatic people pose no risk of infection to others. (And lo, on Oct. 31, after the court declined to order Hickox to comply with Strict CDC pending hearing, but before the parties stipulated to an order, LePage began citing the 13% figure from the WHO study, though he mangled the message a bit.)

Still, even the best case for viewing returning-HCWs-as-risky suggests that they pose only a very low risk. That would not seem likely to meet Maine’s test of clear and convincing evidence that they “can reasonably be expected to place others at significant risk” of Ebola infection and that the things the state wants her to do constitute the “least restrictive measures necessary to effectively protect” those people from that risk. Recall, moreover, that we were only assuming that the statute isn’t limited to people who, unlike all asymptomatic at-risk people, including those in the CDC’s Low, Some, and High Risk categories, have been “diagnosed as having a communicable disease or who, after appropriate medical evaluation or testing, is determined to harbor an infectious agent.”

Sure, Maine’s public health statute offers authorities a few other arrows for their quiver, but these, too, are unlikely to enable Maine to enforce the CDC Guidance. Section §809 allows officials to seek a court order to compel an individual who refuses to do so to “submit to a physical examination” (another potential ground on which to base state authority for compelling directive active monitoring), but only if, “based on epidemiologic evidence or medical evaluation, the department finds probable cause to believe that an individual has a communicable disease.”

Section §810 provides for “emergency temporarycustody” of an individual (one way of effecting quarantine), but only upon showing “clear and convincing evidence that the person . . . requires immediate custody in order to avoid a clear and immediate public health threat.” We just saw that the state would have a difficult time showing that a person at-risk for Ebola constitutes a “public health threat” under the statute; it would obviously be even more difficult to show that such a person constitutes “a clear and immediate public health threat.”

Finally, section §820 allows public health authorities to take someone into custody if they merely have “reasonable cause to believe that the person has been exposed to or is at significant medical risk of transmitting a communicable disease that poses a serious and imminent risk to public health and safety” (no requirement of someone known to be infected) and if there are “no less restrictive alternatives available to protect the public health and safety” — and even to do so without a court order, if the “delay involved in securing a court order would pose . . . a significant medical risk of transmission of the disease” — but only after the Governor declares an “extreme public health emergency,” defined as “the occurrence or imminent threat of widespread exposure to a highly infectious or toxic agent that poses an imminent threat of substantial harm to the population of the State.”

 

James Madison, Call Your Office

In short, it’s not obvious that Maine has the power to compel Hickox to comply with even the most minimal version of the CDC Guidance (directive active monitoring). (In Maine DHHS v. Hickox, the court thrice issued public health orders against Hickox, but in each case, apparently only after Hickox agreed to be subject to those orders. To the extend that the court lacked authority under §812 to compel a non-infected person to do anything, it may have overstepped its power.)

Which raises interesting federalism questions. Ordinarily, of course, regulating public health is among the quintessential “police powers” retained by the states in our federal system (although some have questioned whether viewing communicable disease as a state and local issue in an era of globalization makes sense). The federal government has quarantine, isolation, and other public health powers, rooted in the commerce clause, to monitor and control the movement of people entering the U.S. or crossing state lines (both of which Hickox at one time did). But once someone is ensconced within a state’s borders, the law of that jurisdiction applies. A few weeks ago, we were talking about state policies that exceeded the ceiling of the federal policy; today we’re talking about state laws that appear to prevent state and local authorities from even meeting its floor.

When New York and New Jersey were viewed as exceeding CDC Guidance by imposing “quarantines,” and that, in turn, was thought to frustrate federal policy of ensuring a willing supply of medical volunteers to travel to West Africa, Josh Blackman asked whether the Obama administration might attempt to replay the federal preemption card, as it did when states attempted to go above and beyond federal immigration policy. Instead, the Obama Administration reportedly informally “pressured” the governors of New York and New Jersey to rescind their Ebola policies, and the White House Press Secretary explicitly embraced Ebola federalism, as did the CDC, in a recent FAQ on its updated Ebola Guidance, albeit while contemplating only state policy that is “more restrictive than what is recommended by federal guidance”:

Q: In the updated guidance, people in the Some risk level of exposure who do not have symptoms of Ebola may be subject to additional public health orders. Who makes this decision?

A: Public health workers at your local health department will decide if people who are in the Some risk level of exposure will need public health orders in addition to direct active monitoring. These public health orders could stop a person at risk from traveling on long-distance or local public transport, such as a plane, ship, train, bus, or subway. They could also stop a person from being in public places like movie theaters or going to work. Public health workers will make these decisions separately for each individual based on their history, including how they were exposed to Ebola, the number of days since they might have been exposed, and if they are following the requirements for direct active monitoring.

 

Takeaways

Hickox began by being willing only to engage in self-monitoring, two layers below the minimal level of monitoring recommended by the U.S. CDC. Maine, by contrast, began by stating that public health authorities would work with Hickox to develop an “in-home quarantine,” something that looks indistinguishable from Full CDC. By Oct. 29, state officials offered Strict CDC: Hickox could engage in “non-congregate public activities while maintaining a 3-foot distance from others,” conceding one of the CDC Discretionary Measures in her favor. Hickox declined, but agreed to comply with Minimum CDC. Before they went to court, then, Maine’s proffered policy, but not Hickox’s, was consistent with CDC Guidance. By the time they went to court, both parties were offering measures within the CDC Guidance for Some Risk people, and their dispute centered on three out of the four CDC Discretionary Measures that call for an individualized assessment: exclusion from public transportation; exclusion from public places and congregate gatherings; and exclusion from the workplace.

It’s therefore impossible to describe Hickox’s story as a triumph of federal over state policy — and it’s difficult to describe it as one of science over fear, unless one is prepared to describe the CDC Guidance as grounded in fear and politics rather than in science. Of course, it’s possible that that is an accurate description of federal Ebola policy.

But we might also leave room for the possibility I described in my last post: instead of “misfearing” Ebola, some policymakers and voters are simply made a different tradeoff among the competing known and unknown risks, costs, and expected benefits than would others. Although the probability of Ebola transmission by at-risk people is relatively low, the magnitude of that harm, should it comes to pass, is high (notwithstanding a low Ebola mortality rate in the U.S. so far).

And different people are likely to differently evaluate the compliance costs of measures like strict 21-day state “quarantines” and Full or Strict CDC. For some people, these measures would be very burdensome. For others — not incidentally, including HCWs with Doctors Without Borders, like Hickox, who are encouraged to stay away from work for 21 days and paid to do so (because they might catch a common cold with Ebola-like symptoms and “create needless stress and anxiety for the person involved and his/her colleagues”) — it might be far less burdensome. (Notably, since the legal case has resolved, Hickox has made it clear not only that she will comply with Minimum CDC, but also that she will not go into public places, so as not to alarm residents.) Of those in the latter category who balk at directive active monitoring or, many will ask, why not take the precaution?

Finally, regarding the Bike Ride Watched Around the World. This did not constitute an act of civil disobedience. That same day, Hickox and her partner left their home and went for a bike ride along a rural road, away from town. Strict CDC, which public health authorities had by then agreed to, permits such activity. (Of course, several members of the media came well within three feet of Hickox, but that’s on them.) Moreover, even had Maine officials not already agreed to Strict CDC, no court order was in place and Hickox was legally free to do as she pleased.

So, despite early confusion and reporting to the contrary, not only did Hickox not flout the law, she did not even flout existing Maine policy. Hickox instead rightly cooperated with a perfectly good, expedited legal process, in which adversarial parties began to develop a factual record and a neutral party began to apply the law to that record. This is a victory for the legal process, not for a refusal to abide by the law. Although Hickox has described her experience in Maine as “bullying” by politicians, Hickox would not now be compliant with the minimum measures recommended by the CDC otherwise.

 

Coda: U.S. Ebola Exceptionalism?

Many have understandably questioned why there have been several formal state proposals to quarantine HCWs returning from West Africa but not the HCWs who care for Ebola patients here in the U.S. A partial explanation is that the CDC does not consider these groups to be similarly situated in terms of their exposure to Ebola, and hence the likelihood that they will develop Ebola:

The high toll of Ebola virus infections among healthcare workers providing direct care to Ebola patients in countries with widespread transmission suggests that there are multiple potential sources of exposure to Ebola virus in these countries, including unrecognized breaches in PPE, inadequate decontamination procedures, and exposure in patient triage areas. Due to this higher risk, these health care workers are classified in the some risk category, for which additional precautions may be recommended upon their arrival in the United States.

Where both groups have followed PPE with no known breaches, therefore, those treating Ebola patients in a country without an Ebola outbreak (e.g., U.S., Spain) are considered Low risk subject to direct active monitoring and no movement restrictions, while those treating Ebola patients in a country with an Ebola outbreak (Guinea, Liberia, Sierra Leone) are considered Some risk subject, as we have seen, to direct active monitoring and, depending on an individualized assessment, various movement restrictions up to and including Full CDC, a.k.a. “quarantine.” This may well not explain all disparate treatment under every actual and proposed policy, which I don't have time to analyze, but I wanted to mention this much.