Senate bill 2028, passed unanimously by the state senate April 28, empowers state and local health officials to quarantine citizens and search, close, evacuate and destroy private property if the governor declares a public health emergency.
The bill also sets a $1,000 per day fine against scofflaws and authorizes officers to arrest them.
The bill, named An Act Relative to Pandemic and Disaster Preparation and Response in the Commonwealth, is before the house and could be voted on anytime between now and June, said Wayne Weikel, Chief of Staff at the House Committee on Ways and Means. A copy of the bill can be viewed at http://www.mass.gov/legis/bills/senate/186/st02/st02028.htm.
“On this issue, I believe there is a unity of purpose amongst those inside and outside the State House, and that is to ensure Massachusetts is properly equipped to respond in the event of a pandemic outbreak or other emergency situation. With the flu season soon to be upon us, the House Committee on Ways and Means has been conducting a thorough, yet expeditious, review of Senate Bill 2028 to ensure the needs of all Massachusetts residents will be met. Given the gravity of the subject matter, it’s important to do this bill and to do it right,” wrote Charles A. Murphy (D-Burlington), Massachusetts House Ways and Means chairman, in a release.
Ann Lambert, a lawyer with the Massachusetts chapter of the American Civil Liberties Union, isn’t a fan of the bill. “We’ve always opposed this kind of emergency health powers grant,” Lambert said.
The bill, said Lambert, gives the DPH the power to issue orders and enforce them in a public health emergency. The approach is a coercive one, she said, and the opposite of the health department’s traditional role of responding to public health emergencies with leadership through education.
The part of the bill Lambert refers to states that in the event of a pandemic or threat to public health, “…the commissioner or local public health authority may issue an order. The order may be a verbal order in exigent circumstances, and in such case it shall be followed by a written order as soon as reasonably possible.”
The specific possible orders under the law include, (but are not limited to):
·Opening private property for investigation of the premises.
·Requiring the owner to close the premises or a specific part of the premises and re-opening when the danger has ended.
·Requiring signs to notify the public of an order closing the premises
·Requiring the cleaning or disinfection of the premises.
·Requiring the destruction of the matter or thing specified in the order.
The law calls for the order to be delivered personally to the person in question, “But if that is not possible, it shall be delivered in a manner that is reasonably calculated to notify such person of it,” the bill states.
A public health authority, said Jared Cain, spokesman for Sen. Richard T. Moore, D – Worcester and Norfolk, who authored the bill, can be any healthcare worker for the state or town. “It does go down to the school nurse,” Cain said, because during a public health emergency, “You want all hands on deck.”
In the event that an order is ignored, “An officer authorized to serve criminal process may arrest without warrant any person whom the officer has probable cause to believe has violated such an order and shall use reasonable diligence to enforce such an order,” the bill states.
The bill also states that if a person is unable or unwilling to submit to decontamination or diagnosis, the state can only proceed against that person’s wishes after receiving a superior court order. While that order is being obtained, the law states officials may isolate or quarantine the person.
But, Lambert said, the bill’s approach is likely to backfire. “People resist coercive measures sometimes, when they understand them as being unnecessarily coercive,” she said.
In response to concerns that the bill would spread broad power to many people, “It actually consolidates power,” Cain said, because as the law stands now, the governor can appoint anyone to enforce public health orders in an emergency. “It would be whoever the governor sees fit,” Cain said.
Lambert said that seeking to limit the power of the governor to act during an emergency is an odd justification for the bill. She said the ACLU opposes the bill, and lists its arguments in more detail at http://www.aclum.org/news/20090904.php.
Sen. Marian Walsh, D (Suffolk and Norfolk), said she heard from numerous people in her constituency in support and opposing the bill before she voted for it. People opposing the bill said they felt it would turn Massachusetts into a police state, she said. Instead, she said the bill will prepare the state for a pandemic or health emergency, and that it would only be used in extreme cases. She added that if the bill became law, opponents could still fight the measure in court.
Sen. James Timilty D (Bristol and Norfolk), did not return a call seeking comment on his vote for the bill.
Rep. Lida Harkins, D (13th Norfolk) said she needed more time to study the bill, but noted that it might be amended a few times before it comes up for a vote in the House. “By the time it gets to the floor, it may have been changed,” Harkins said.
Rep. Richard Ross, R (9th Norfolk), said he also needed more time to look at the bill, but, “On first blush, I don’t think I could support it,” he said.
Rep. Paul McMurtry (D-Dedham) said the bill does require some serious thought on how far into individuals’ lives the state should go to protect public safety with new threats such as swine flu. “We haven’t had anything in recent history to draw a comparison,” McMurtry said. He added it would take a lot of convincing before he would support portions of the bill, such as being arrested for ignoring a quarantine order. “That seems a little extreme to me, but again, we’re talking about extreme cases,” McMurtry said.