The bill currently in the New York State Senate seeks to add a new section (2120-a) to public health law that would add powers to detain and/or remove people who have or are suspected to have a “communicable disease”.
The proposed section states that “The provisions of this section shall be utilized in the event that the governor declares a state of health emergency due to an epidemic of any communicable disease.”
The section continues,
“Upon determining by clear and convincing evidence that the health of others is or may be endangered by a case, contact or carrier, or suspected case, contact or carrier of a contagious disease that, in the opinion of the governor, after consultation with the commissioner, may pose an imminent and significant threat to the public health resulting in severe morbidity or high morbidity, the governor or his or her delegee, including but not limited to the commissioner or the heads of local health departments, may order the removal and/or detention of such a person or of a group of such persons by issuing a single order, identifying such persons either by name or by a reasonably specific description of the individuals or group being detained.”
The section goes on to describe that individuals being removed and/or detained would be “detained in a medical facility or other appropriate facility or premises designated by the governor”.
The section continues by stating that the length of detainment will be for “such a period and in such a manner as the department may direct”.
However, the section states that someone detained “shall not continue to be detained after the department determines that such person is no longer contagious.”
In the case of a suspected case or carrier that is detained, an individual would “not continue to be detained after the department determines, with the exercise of due diligence, that such person is not infected with or has not been exposed to such a disease,”.
The bill states that in the case an individual is to be detained, they must have their “medical condition and needs assessed and addressed on a regular basis”, “be destined in a manner that is consistent with recognized isolation and infection control principles in order to minimize the likelihood of transmission of infection to such person and to others.”
Part 6 of the section discusses the situation if a person or group is ordered to be detained “for a period not exceeding three business days”.
In that case, “such person or member of such group shall, upon request, be afforded an opportunity to be heard.”
If they are to be detained for more than three days, an individual would need to be “provided with an additional commissioner’s order”.
However, if an individual or group is detained for more than three days and requests release, the section states that the governor or their delegee must make an application for a court order “authorizing such detention within three business days” of the release request being made.
If a request for release is made, the section states that the “detention shall not continue for more than five business days in the absence of a court order authorizing detention.”
The longest someone could be detained without a court order under this bill provision is 60 days.
“In no event shall any person be detained for more than sixty days without a court order authorizing such detention.”
Bill A416 states that a detained individual or group would receive a copy of any detention order of the governor or their delegee. However, in the case that the order applies to a group of individuals and it is “impractical” to provide each person with a copy, “it may be posted in a conspicuous place in the detention premises.”
Bill A416also says that within each detention order they will state:
(I) The purpose of the detention and the legal authority under which the order is issued, including the particular sections of this article or other law or regulation;
(II) A description of the circumstances and/or behavior of the detained person or group constituting the basis for the issuance of the order;
(III) The less restrictive alternatives that were attempted and were unsuccessful and/or the less restrictive alternatives that were considered and rejected, and the reasons such alternatives were rejected;
(IV) A notice advising the person or group being detained that they have a right to request release from detention, and including instructions on how such request shall be made;
(V) A notice advising the person or group being detained that they have a right to be represented by legal counsel and that upon request of such person or group access to counsel will be facilitated to the extent feasible under the circumstances; and
(VI) A notice advising the person or group being detained that they may supply the addressed and/or telephone numbers of friends and/or relatives to receive notification of the person’s detention, and that the department shall, at the detained person’s request and to the extent feasible, provide notice to a reasonable number of such people that the person is being detained.
Another component of the bill states that any person who is detained in a “medical facility, or other appropriate facility or premises,” cannot “conduct himself or herself in a disorderly manner, and shall not leave or attempt to leave such facility or premises until he or she is discharged pursuant to this section.”
However, the bill does not elaborate on what would be deemed as “disorderly” or states what measures may be taken to halt someone attempting to leave.
Another aspect of the bill authorizes the governor or their delegee “in his or her discretion” to “issue and seek enforcement of any other orders that he or she determines are necessary or appropriate to prevent dissemination or transmission of contagious diseases or other illnesses that may pose a threat to the public health”.
The bill states that they include “but are not limited to, orders requiring any person or persons who are not in the custody of the department to be excluded; to remain isolated or quarantined at home or at a premises of such person’s choice that is acceptable to the department…; to require the testing or medical examination of persons who may have been exposed to or infected by a contagious disease…; to require an individual who has been exposed to or infected by a contagious disease to complete an appropriate, prescribed course of treatment, preventative medication or vaccination, including directly observed therapy to treat the disease and follow infection control provisions for the disease;”.
The final paragraph of the section states that “the provisions of this section shall not be construed to permit or require the forcible administration of any medication without a prior court order.”
Currently, Assembly Bill A416 is active in assembly committee. It is not clear whether or not the bill will pass and make its way to the governor’s desk at this time.