A line of cars drives up North Street in Harrisburg, a few blocks from the state Capitol building, during a protest of the state’s response to the COVID-19 pandemic. Experts say stay-at-home orders shouldn’t lift until the state has a robust plan for testing and contact tracing. (Capital-Star photo by Stephen Caruso)
The Pennsylvania Department of Health is warning some Pennsylvanians who have been exposed to COVID-19 of legal action if they violate quarantine.
The warning comes in a three-page letter, sent to potentially thousands of Pennsylvanians, who were in close contact with someone who was positive for the coronavirus.
The letter advises recipients to stay indoors for 14 days since their last contact with the positive individual, to take their temperature twice daily, and to cooperate with the department. The warning comes in the second to last paragraph.
“If you do not cooperate with this directive, the Secretary of Health may petition a court to have you confined to an appropriate place chosen by the Department to make certain that you do not infect the public, and to make certain that you receive proper care,” the letter, shared on social media, and confirmed as authentic by the department, says.
This letter is only sent to individuals who have been contact traced — a public health tool in use since the 1920s — for exposure to the COVID-19, Health Department spokesman Nate Wardle told the Capital-Star.
He could not provide a count on how many warning letters have been sent out.
“While it may seem harsh in tone, the language referenced is essential to ensure that we have compliance in both isolation and self-quarantine protocols to prevent further spread of disease,” Wardle said. “The tools available to ensure compliance are widely-accepted public health protocols and the actions referenced in the letter are only used when non-compliance poses a grave threat to the public health.”
No legal or public health observers disputed the Department’s powers to mandate quarantine. But the stark legal warning surprised one attorney tracking the state’s pandemic response, and also struck a public health communications expert as “odd.”
Mandatory quarantines are “not a power that health departments would take lightly and would not invoke without trying everything else possible,” Susan Bauerle Bass, a Temple University professor, told the Capital-Star.
Whoa whoa whoa – this is a MAJOR development in #Pennsylvania COVID-19 enforcement actions: the Pennsylvania Department of Health threatens to detain individuals (who just had close contact with COVID-19 infected folks) who don't abide by quarantine procedures. https://t.co/imJyRgs2fg
— Kevin M. Levy (@LegalLevy) August 6, 2020
Meanwhile, the American Civil Liberties Union of Pennsylvania said a mandatory quarantine should be the “government’s last resort,” and pointed out that the letter made no reference to an individual’s due process rights.
“A person has a right to challenge the quarantine order before a neutral decision maker and has a right to counsel. The department’s letter fails to inform the recipient of any of these basic rights.,” ACLU spokesperson Andy Hoover said in a statement. He added: “This kind of order must be scientifically justified and utilize the least restrictive measures possible.”
These letters aren’t sent to every contact, Wardle said, and are used in addition to phone calls by tracers.
Typically, a phone call to a contact would include “what to do if you start to develop symptoms, the need to quarantine, and how to get tested,” Wardle said.
The letter, meanwhile, runs down symptoms and advises that people cannot leave the house, but includes little on how to be tested or how to get medical help.
Instead, the letter advises people to contact their health care provider and the department at a hotline number.
Bass told the Capital-Star that phone calls are the best way to contact trace, because it allows people to ask questions while processing a stressful and scary situation.
In those circumstances, Bass said, it is important to “get the information across in a way that is positive and empowering and tells the person why it is being done,” while also being “short and to the point” about how to keep yourself and loved ones safe.
“Things that are stressful keep us from being able to easily process information,” she said. “So getting a three-page letter is probably not the best way to get across why you are reaching out, why it’s important, and what can be done because the important information gets lost.”
According to a May Ipsos-Axios poll, 84 percent of Americans said they would be more likely then not to quarantine if exposed to someone who was confirmed to be positive for COVID-19.
The carrot or the stick?
Contact tracing has been used for decades by public health services to track and contain the spread of disease. In fact, after years of disinvestment in public health, the state found itself short on employees and tech to track the spread of the pandemic.
Amid the summer wave of the virus, Wolf decided to spend $27 million to hire thousands of new workers and to deploy an app to inform people if they’ve been in touch with someone who was positive for coronavirus.
Only individuals in “counties with case counts [or] outbreaks of concern,” individuals who do not follow quarantine guidelines, or someone who requested the letter would receive one, Wardle said.
The exact locations where these letters might be sent vary from week to week, Wardle said, but he pointed to counties with a 5 percent positivity rate on tests or higher on the state’s early warning dashboard.
Currently, a dozen counties match that profile, including Philadelphia, Delaware, Lancaster and Beaver counties.
The letter’s legal warning surprised Philadelphia attorney Kevin Levy, who has been tracking Pennsylvania’s regulatory and legal response to the pandemic.
He told the Capital-Star the letter represented a new frontier in how the commonwealth acts, or at least talks, about its virus response.
“This is kinda showing the public the Secretary of Health’s muscles, that there are some teeth behind these orders,” Levy told the Capital-Star.
“I don’t know if they intend to enforce” the warning, he added.
There is some recent precedent for state intervention to enforce quarantine. During the Ebola outbreak in 2014, the state of Connecticut forced eight people into mandatory quarantine.
Legal experts told the New York Times in March that a legal case, brought by two Yale students returning from West Africa, could help clear up a legal haze around how states can properly implement quarantines.
According to Wardle, the state has yet to enforce a quarantine through the legal process. Overall, that matches Wolf messaging ever since he announced a disaster declaration in March.
For months, Wolf tried to walk a delicate line, making clear his legal authority to create and enforce public safety measures, but also imploring Pennsylvanians to follow the ordinances to help others, rather than by threat of fine or arrest.
The two-pronged message has become clearer in recent weeks, as Wolf and the administration has begun to ramp up enforcement. State Police have issued about half of all warnings over health rules since July 1, mostly to liquor license holders.
Wolf even held a press conference Monday where, while flanked by police vehicles, he asked Pennsylvanians “to pull together here” and follow his health orders.
Wardle did not specify when the quarantine legal notice was added to its letters.
“The language included is essential to ensure that we have compliance in both isolation and self-quarantine protocols to prevent further spread of disease,” he said.
He added, “it is important that people understand these actions are to protect their health and the health of those in their community.”
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