I drafted the following before the House of Representatives struck an apparent deal with the White House to pass a bill to cover coronavirus testing. Should that deal fall through, the post could become newly relevant. It may also be of interest because it discusses the federal government’s quarantine powers with respect to infectious diseases.
At a committee hearing on Thursday, Representative Katie Porter coaxed what appeared to be a commitment from Robert Redfield, Director of the Centers for Disease Control. He seemed to say that he would exercise his authority to guarantee cost-free access to coronavirus testing. Video of the encounter went viral; Porter said she had done “the legal research” and that “the Administration has the authority to make testing free to every American TODAY.”
What was she referring to? Is Representative Porter right? And can we trust the Director Redfield’s apparent commitment?
In her questioning, Representative Porter invoked 42 C.F.R. §71.30, a rule adopted by the Department of Health and Human Services in coordination with the CDC. Most recently amended in 2016 in the wake of Ebola, MERS, and measles outbreaks, the provision forms part of a broader suite of rules that aim to prevent the spread of infectious diseases.
The rules were adopted pursuant an old law that broadly empowers CDC to “make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” In other words, the CDC is supposed to devise rules (1) to stop diseases from coming into the country and (2) to prevent them from spreading from state to state.
The CDC’s rules track that two-part allocation of power: Part 70 applies to “interstate quarantine” and Part 71 applies to “foreign quarantine” As you might expect, the rules governing foreign quarantine allow federal officials to inspect planes, trains, or automobiles at the borders. Anyone who the CDC believes may be infected can be quarantined, isolated, or placed under surveillance. They can also be forced to undergo a medical examination.
Which brings us back to Representative Porter’s questioning. The rule she invoked—section 71.30—authorizes the CDC to “authorize payment for the care and treatment of individuals subject to medical examination, quarantine, isolation, and conditional release.” Which makes sense: if you’re going to order someone into quarantine and make them undergo a battery of tests, you don’t want to have to worry about their insurance status.
Representative Porter wants to use that power to have the federal government pick up the tab for nationwide coronavirus testing. But the rule she invoked is in Part 71—meaning that it only applies to foreign quarantine, and even then only with respect to medical examinations conducted pursuant to a federal quarantine order.
So section 71.30 is the right tool if you want to prevent MERS patients from coming into the country. It’s not the right tool if what you’re hoping to do is prevent community spread of a virus that’s already here.
Representative Porter shouldn’t be looking to Part 71, but to Part 70, which contains the rules governing the interstate spread of communicable diseases. And Part 70 contains a similar provision—section 70.13—authorizing the CDC to pay for medical examinations and quarantines.
Even under section 70.13, however, the CDC’s authority to pay for nationwide testing is not so clear. Most urgently, any payment is “subject to the availability of appropriations.” Though Congress’s emergency funding bill allocated $2.2 billion to CDC “to prevent, prepare for, and respond to coronavirus,” much of that money will be spent on other urgent priorities. And if Congress hasn’t provided sufficient resources to pay for nationwide testing, that’s the ballgame.
But assume the money is there. The rules are still an awkward fit. As drafted, they’re really about involuntary quarantines—not voluntary testing.
Once the CDC identifies individuals or discrete groups who are at risk of carrying an infectious disease, the rules say that the agency can issue “a Federal order” to quarantine, isolate, or surveil them. But that order has to include a whole lot of specific information: the identities of the individual or group, the location of any quarantine, and why the CDC thinks it would be a bad idea for them to travel from state to state.
Once a quarantine, isolation, or surveillance order is in place, the CDC can force people to undergo a medical examination. Section 70.13 then allows CDC to pay the examination if the person doesn’t have insurance. That payment authority, however, lasts only as long as “the time period beginning when the [CDC] refers the individual or group to the hospital or medical facility.”
This scheme works well if you’ve got a recalcitrant patient who was exposed to Ebola, is about to drive over state lines, and refuses to be treated. But the rules aren’t a good fit for a pandemic with flu-like spread. Is the CDC supposed to enter an isolation order covering the whole country? Is it supposed to refer everyone in the country to a “hospital or medical facility”? Would every person in the nation be entitled to a “medical review” at which she can “present witnesses and testimony,” as the rules contemplate?
None of this is to say that the rules can’t be stretched to cover coronavirus testing. The Director could potentially issue an order saying that everyone should isolate themselves. In connection with that order, he could declare that everyone who meets loose testing criteria (e.g., suffering from a respiratory illness) is at risk of fostering interstate transmission, that each such patient ought to be given a “medical examination,” and that the federal government will pick up the tab if the patient doesn’t have insurance.
Is that stretching the rules past the breaking point? Maybe. But the Trump administration has acted more lawlessly and with less justification on many occasions over the past three years.
A cleaner solution would be for CDC to amend its regulations—and, during an emergency, to do so without adhering to cumbersome rules that slow things down. A new set of regulations (and sufficient money) would secure the legality of paying for coronavirus testing.
I fear, however, that the CDC Director may not see matters the same way now that he’s out from under the white-hot heat of Representative Porter’s questioning. And if he reneges on his commitment—and I worry he will—it’s really up to Congress to move. The legislature could pass a bill tomorrow that would commit the federal government to paying for every coronavirus test.
And it should. In the face of a national crisis, lawyers and legislators shouldn’t have to pore over the Code of Federal Regulations with a fine-toothed comb. Congress should fix the damn problem itself—and now.
