**Outline Summary:**

**New N.C. Public Health Bioterrorism Law**

S.L. 2002-179 (H 1508)

Jill Moore

UNC Institute of Government

November 2002

During the 2002 legislative session, the North Carolina General Assembly
enacted a law that extends new legal authorities and duties to state and
local public health officials in the event of nuclear, biological, and
chemical terrorism (NBC terrorism). These new authorities and duties
build on, but do not replace, existing public health laws governing
communicable disease control and the abatement of imminent hazards. It
is important to read the new law in tandem with pre-existing
communicable disease laws to understand the full scope of the public
health system's authorities and duties in the event of a bioterrorist
incident.

[A. New Powers and Duties for State Health Director]{.underline}

**1. When State Health Director (SHD) may exercise new powers;
definitions**

> a\. [Must suspect NBC terrorism causing public health threat (G.S.
> 130A-475(a)):]{.underline} The new law grants new powers to the SHD
> that may be exercised only when the SHD reasonably suspects two
> things: (1) that a public health threat may exist, and (2) that the
> public health threat may have been caused by a terrorist incident
> using nuclear, biological, or chemical agents (NBC agents).
>
> i\. "Public health threat" means a situation that is likely to cause
> an immediate risk to human life, an immediate risk of serious physical
> injury or illness, or an immediate risk of serious adverse health
> effects. G.S. 130A-475(d).
>
> ii\. "Terrorist incident" means activities that occur within the
> territorial jurisdiction of the United States, involve acts dangerous
> to human life that are a violation of the criminal laws of the United
> States or of any state, and are intended to do one of the following:
> intimidate or coerce a civilian population; influence the policy of a
> government by intimidation or coercion; or affect the conduct of a
> government by mass destruction, assassination, or kidnapping. G.S.
> 166A-21.
>
> b\. [Powers only authorized for duration of potential threat and when
> other alternatives unavailing or unavailable (G.S.
> 130A-475(b)):]{.underline} The SHD may exercise all these new powers
> only when and for so long as a public health threat may exist, all
> other reasonable means for correcting the problem have been exhausted,
> and no less restrictive alternative exists.

**2. Powers over property**

> a\. [Power to test for contamination (G.S.
> 130A-475(a)(2)):]{.underline} The SHD may test any real or personal
> property to determine the presence of NBC agents.
>
> b\. [Power to close or evacuate for purposes of investigation (G.S.
> 130A-475(a)(3)):]{.underline} The SHD may evacuate or close any real
> property when necessary to investigate suspected contamination of the
> property.
>
> i\. *10-day limit on orders to close property*: Closure for
> investigation shall not exceed 10 calendar days. If a longer period is
> required to complete the investigation, the SHD may ask a superior
> court to order the property to remain closed until the investigation
> is completed.
>
> c\. [Power to order abatement of a public health threat (G.S.
> 130A-477)]{.underline}: If it is determined that a public health
> threat may exist because of contamination of property as a result of
> NBC terrorism, the SHD may order any action to abate the public health
> threat. The owner or other person in control of the property will not
> be responsible for the costs of the abatement, to the extent he or she
> is innocent of culpability in creating the public health threat.

**3. Powers over persons and animals**

> a\. [Power to require tests/examinations (G.S.
> 130A-475(a)(1)):]{.underline} The SHD may require any person or animal
> to submit to examinations and tests to determine possible exposure to
> a NBC agent.
>
> b\. [Powers to limit freedom of movement or action, or access to
> contaminated areas:]{.underline}
>
> i\. The SHD may limit the freedom of movement or action of a person or
> animal that is contaminated with, or reasonably suspected of being
> contaminated with, a NBC agent that may be conveyed to other persons
> or animals. G.S. 130A-475(a)(4).
>
> ii\. The SHD may limit access by any person or animal to: (1) an area
> or facility that is housing persons or animals whose movement or
> action has been limited, as described above; or (2) an area or
> facility that is contaminated with, or reasonably suspected of being
> contaminated with, a NBC agent that may be conveyed to other persons
> or animals. This provision shall not be construed to restrict the
> access of authorized health care, law enforcement, or EMS personnel to
> the premises when they are conducting their duties. G.S.
> 130A-475(a)(5).
>
> c\. [Limitations on orders to limit freedom of movement or access/due
> process protections for persons affected by orders (G.S.
> 130A-475(b)):]{.underline}
>
> i\. Orders limiting freedom of movement or access shall not exceed 10
> days. (Note that this restriction does not apply to limitations on
> freedom of action.) A person affected by the limitation may ask a
> superior court to review the limitation and the court must respond by
> conducting a hearing within 72 hours (excluding Saturdays and
> Sundays). The person is entitled to representation by counsel and will
> receive appointed representation if indigent. The court shall reduce
> the limitation if it determines by the preponderance of the evidence
> that the limitation is not reasonably necessary to prevent or limit
> the conveyance of NBC agents to others, or may apply conditions to the
> limitation. If the SHD determines that a limitation on freedom of
> movement or access must extend beyond 10 days, the SHD must ask a
> superior court to order an extension of the period of time. If the
> court determines that continued limitation is necessary to prevent or
> limit the conveyance of NBC agents to others, the court shall continue
> the limitation for a period not to exceed 30 days. When necessary, the
> SHD may seek additional continuations of up to 30 days each.
>
> ii\. The SHD must consult with the State Veterinarian in the
> Department of Agriculture and Consumer Services before applying these
> limitations to livestock or poultry.

**4. SHD's and Secretary of CCPS's duty to notify Governor and each
other (G.S. 130A-475(c))**

> When the SHD reasonably suspects that there is a public health threat
> that may have been caused by NBC terrorism, the SHD must notify the
> Governor and the Secretary of Crime Control and Public Safety (CCPS).
> When the Secretary of CCPS reasonably suspects that there may be a
> public health threat and that it may have been caused by NBC
> terrorism, the Secretary of CCPS must notify the Governor and the SHD.

**5. New SHD powers do not limit existing powers of local health
directors and other public health officials (G.S. 130A-475(e))**

> The new law specifically states that none of the provisions in the
> section granting new powers to the state health director shall limit
> any authority otherwise granted to local or state public health
> officials under G.S. Chapter 130A.

[B. Changes to existing law regarding abatement of imminent
hazards]{.underline}

**1. Secretary or local health director may order abatement**

> Previous law authorized the Secretary of DHHS or a local health
> director to take any action necessary to abate an imminent hazard. The
> new law retains that provision and adds that the Secretary or a local
> health director may order the owner, lessee, operator, or other person
> in control of the property to abate the hazard.

**2. Person in control of property not responsible for costs if not
culpable in creation of hazard**

> Previous law established a lien on the property for the cost of
> abating an imminent hazard. A new provision states that if the owner,
> lessee, operator, or other person in control of the property may
> defeat the lien by showing that he or she was not culpable in the
> creation of the imminent hazard.

[C. Changes to existing laws regarding isolation and
quarantine]{.underline}

**1. Addition to definition of "quarantine authority" (G.S.
130A-2(7a))**

> *Note:* *Communicable disease law definitions have been moved from
> G.S. 130A-133 to G.S. 130A-2. New editions of the statutes will note
> that G.S. 130A-133 has been repealed. The law is not gone, it has just
> been moved.*
>
> Previous law defined "quarantine authority" as: (1) the authority to
> limit the freedom of movement or action of persons or animals that
> have been exposed to a communicable disease or condition in order to
> prevent the spread of disease, and (2) the authority to limit the
> freedom of movement or action of persons who have not received
> immunizations that are required to control an outbreak of disease. The
> new law retains both of those definitions of "quarantine authority"
> and adds another: (3) the authority to issue an order to limit access
> by any person or animal to an area or facility that may be
> contaminated with an infectious agent.

**2. Restriction of access to quarantine or isolation premises (G.S.
130A-145(b))**

> No person may enter quarantine or isolation premises unless authorized
> by the SHD or the local health director (presumably, the local health
> director who ordered the quarantine or isolation). However, this shall
> not be construed to restrict the access of authorized health care
> personnel, law enforcement, or EMS personnel in the conduct of their
> duties.

**3. Consultation required before quarantining or isolating livestock or
poultry (G.S. 130A-145(c))**

> Before applying quarantine or isolation authority to livestock or
> poultry, the SHD or local health director must consult with the State
> Veterinarian in the Department of Agriculture and Consumer Services.

**4. 10-day limit on orders restricting freedom of movement or
access/due process protections for affected persons (G.S. 130A-145(d))**

> Quarantine or isolation orders that limit the freedom of movement of a
> person or animal, or limit access to a person or animal who has been
> isolated or quarantined, shall not exceed 10 days. (Note that this
> restriction does not apply to limitations on freedom of action.) A
> person affected by the limitation may ask a superior court to review
> the limitation and the court must respond by conducting a hearing
> within 72 hours (excluding Saturdays and Sundays). The person is
> entitled to representation by counsel and will receive appointed
> representation if indigent. The court shall reduce the limitation if
> it determines by the preponderance of the evidence that the limitation
> is not reasonably necessary to prevent or limit the conveyance of the
> communicable disease or condition to others. If the SHD or local
> health director determines that a limitation on freedom of movement or
> access must extend beyond 10 days, the SHD or local health director
> must ask a superior court to order an extension of the period of time.
> If the court determines that continued limitation is necessary to
> prevent or limit the conveyance of a communicable disease or condition
> to others, the court shall continue the limitation for a period not to
> exceed 30 days. When necessary, the SHD or local health director may
> ask the court to continue the limitation for additional periods of up
> to 30 days each.

[D. Enforcing limitations on freedom of movement or access]{.underline}

**1. Existing law makes violations of SHD orders a misdemeanor (G.S.
130A-25)**

> Under existing law, a violation of any provision of G.S. Chapter 130A
> is a misdemeanor. Violations of communicable disease laws and rules
> fall under that statute. Any violation of an order of the SHD in the
> exercise of her new authorities relating to NBC terrorism would fall
> under that statute as well.

**2. Confinement of person arrested for violating limitations on freedom
of movement or access (G.S. 15A-401(b)(4))**

> A law enforcement officer who arrests an individual for violating an
> order limiting freedom of movement or access under G.S. 130A-475 (new
> SHD powers) or 130A-145 (existing SHD and local health director
> authority to impose quarantine or isolation) may detain the person in
> an area designated by the SHD or local health director, until the
> individual's first appearance before a judicial official. In other
> words, the person may not have to be taken to the jail, if the SHD or
> local health director's order indicates that the person should be
> detained in a different place. The purpose of this provision is to
> detain the person in a manner that limits the risk of transmitting
> illness to others.

**3. Detention to protect public health (G.S. 15A-534.5)**

> When a person is arrested for violating an order limiting freedom of
> movement or access under G.S. 130A-475 or 130A-145, the judicial
> official at the first appearance must consider whether the person
> poses a threat to the health and safety of others. If the judicial
> official determines by clear and convincing evidence that the person
> does pose a threat, the judicial official shall deny pretrial release
> and shall order the person to be confined in an area or facility
> designated by the judicial official, after receiving recommendations
> from the SHD or local health director. The purpose of this provision
> is to allow a potentially contagious person to be confined somewhere
> other than the local jail.

[E. Acquiring information for investigation or surveillance of NBC
terrorism]{.underline}

**1. Health care providers may report symptoms/syndromes (G.S.
130A-476(a))**

> This provision authorizes a health care provider, a person in charge
> of a health care facility, or a unit of state or local government to
> report to the SHD or a local health director any events that may
> indicate the existence of a case or outbreak of an illness, condition,
> or health hazard that may have been caused by a terrorist incident
> using NBC agents. Events that may be reported include unusual types or
> numbers of symptoms or illnesses, unusual trends in health care
> visits, or unusual trends in prescriptions or purchases of
> over-the-counter pharmaceuticals. To the extent practicable,
> personally identifiable information shall not be disclosed.
>
> *Immunity from liability:* A health care provider who makes such a
> report in good faith is immune from liability that might otherwise
> arise. A health care provider who fails to make a report is also
> immune from liability, unless the provider had actual knowledge that a
> condition or illness was caused by the use of a nuclear, biological or
> chemical weapon of mass destruction.

**2. SHD may issue temporary order requiring reports of
symptoms/syndromes (G.S. 130A-476(b))**

The SHD may issue a temporary order requiring health care providers to
report symptoms, diseases, conditions, trends in use of health care
services, or other health-related information when necessary to conduct
an investigation or surveillance of an illness, condition, or health
hazard that may have been caused by NBC terrorism. The order must
specify which health care providers must report, what information must
be reported, and the period of time for which reporting is required (not
to exceed 90 days). If a period of longer than 90 days is necessary to
protect the public health, the Commission for Health Services may adopt
rules to continue the reporting requirement.

> *Immunity from liability:* A person who makes a report required by a
> SHD temporary order pursuant is immune from any liability that might
> otherwise arise (G.S. 130A-476(d)).

**3. SHD and local health director authority to access records (G.S.
130A-476(c))**

> The SHD or a local health director may examine, review, or obtain a
> copy of records containing confidential or protected health
> information, when those records pertain to a report authorized by G.S.
> 130A-476(a) or required by the SHD pursuant to G.S. 130A-476(b).
>
> *Immunity from liability:* A person who provides access to information
> pursuant to this provision is immune from any liability that might
> otherwise arise (G.S. 130A-476(d)).

**4. Pilot program for real-time emergency department surveillance (G.S.
130A-476(f))**

> The SHD shall develop a voluntary pilot program for hospitals and
> urgent care centers to provide emergency department data to assist the
> SHD with public health surveillance. Upon receipt of the data, the SHD
> must strip the data of the following direct identifiers of patients or
> their relatives, employers or household members: postal address
> information other than city, state, and 5-digit zip code; geocode
> information; telephone numbers; fax numbers, e-mail addresses; social
> security numbers; medical record numbers; health plan beneficiary
> numbers; account numbers; certificate or license numbers; vehicle
> identifiers and serial numbers, including license plate numbers;
> device identifiers and serial numbers; URLs; Internet protocol address
> numbers; biometric identifiers, including finger and voice prints; and
> full-face photographic images and other comparable images.

**5. Protection of confidential or protected health information**

> a\. [New confidentiality provisions (G.S. 130A-476(e)):]{.underline}
> When the SHD or a local health director receives confidential or
> protected health information in accordance with any of the above
> provisions, he or she must keep it confidential and not release it
> unless the release is: (1) made pursuant to another provision of law;
> (2) made to another federal, state, or local public health agency for
> the purpose of preventing or controlling a public health threat; or
> (3) made to a court or law enforcement official or officer for the
> purpose of enforcing Chapter 130A or for the purpose of investigating
> a NBC terrorist incident. A court or law enforcement official or
> officer who receives the information shall not disclose it further
> except: (1) when necessary to the investigation of the NBC terrorist
> incident; or (2) when the SHD or a local health director seeks the
> court or law enforcement official or officer's assistance in
> preventing or controlling the public health threat and authorizes the
> disclosure as necessary to that purpose.
>
> b\. [Amendments to existing communicable disease confidentiality law
> (G.S. 130A-143):]{.underline}
>
> i\. G.S. 130A-143(7) is amended to authorize release of communicable
> disease information to a court or law enforcement official for the
> purpose of enforcing the new NBC terrorism provisions, or for the
> purpose of investigating a NBC terrorist incident. The law already
> permitted disclosures to courts or law enforcement officials for the
> purpose of enforcing communicable disease laws. A new provision states
> that a law enforcement official who receives the information must not
> disclose it further except (1) when necessary to enforce the public
> health laws regarding NBC terrorism or communicable disease control,
> (2) when necessary to investigate a NBC terrorist incident, or (3)
> when NC DHHS or a local health department seeks the assistance of the
> law enforcement official in preventing or controlling the spread of
> the communicable disease or condition and expressly authorizes the
> disclosure as necessary for that purpose.
>
> ii\. G.S. 130A-143(8) is amended to clarify that communicable disease
> information may be disclosed to a federal public health agency for the
> purpose of preventing or controlling the spread of a communicable
> disease or communicable condition (the law previously referred only to
> state and local public health agencies).
>
> c\. [Clarification of EMS authority to disclose confidential
> information pursuant to law (G.S. 143-518(a)(8)):]{.underline} In
> 2001, the General Assembly enacted G.S. 143-518, regarding
> confidentiality of EMS patient information. The law made EMS medical
> records and data strictly confidential and authorized their release
> only under a narrow set of circumstances. The list of circumstances
> did not provide for the release of EMS information to other
> authorities, even when other laws required those releases. For
> example, G.S. 130A-383 states that EMS providers must notify the
> medical examiner when a person dies of certain causes or under
> circumstances that are specified in the statute. But G.S. 143-518, as
> originally enacted, appeared not to permit this release. This
> amendment to G.S. 143-518 makes clear that EMS providers may disclose
> confidential patient information "pursuant to any other law." The
> amendment thus cures the conflict with laws such as the law requiring
> notification of the medical examiner. It also permits EMS providers to
> disclose confidential information to public health authorities in
> accordance with the provisions about access to information described
> above.

**6. Information about zoonotic diseases in animals**

> a\. [Veterinarians must report (G.S. 106-307.2(a)):]{.underline}
> Previous law required all persons practicing veterinary medicine to
> report contagious or infectious diseases in livestock or poultry to
> the Department of Agriculture's State Veterinarian. A new provision
> requires the Board of Agriculture to develop a list of animal diseases
> and conditions that must be reported.
>
> b\. [State Veterinarian must notify SHD and Director of DEH (G.S.
> 106-307.2(b)):]{.underline} This provision requires the State
> Veterinarian to notify the SHD and the Director of the Division of
> Environmental Health when the State Veterinarian receives a report
> indicating an occurrence or potential outbreak of any of the
> following: anthrax, arboviral infections, brucellosis, epidemic
> typhus, hantavirus infections, murine typhus, plague, psittacosis, Q
> fever, hemorrhagic fever, virus infections, and any other disease or
> condition that is transmissible to humans and that may have been
> caused by a terrorist act.
>
> c\. [Confidentiality of owner information (G.S.
> 106-24.1):]{.underline} An amendment to this law prohibits the
> disclosure of animal disease diagnostic tests that identify the owner
> of the animal without the owner's permission, unless the State
> Veterinarian determines that disclosure is necessary to prevent the
> spread of the disease or to protect the public health.

[F. Other provisions]{.underline}

**1. Role of SHD in developing State Emergency Operations Plan (G.S.
166A-5(3)(b1)**

> This amendment to the state's emergency management laws clarifies that
> the state emergency management program must coordinate with the SHD to
> amend or revise the State Emergency Operations Plan regarding public
> health matters. At a minimum, the Plan must provide for: (1)
> epidemiologic investigation of known or suspected threats caused by
> NBC agents; (2) examination and testing of persons or animals that may
> have been exposed to NBC agents; (3) procurement and allocation of
> immunizing agents and prophylactic antibiotics; (4) allocation of the
> National Pharmaceutical Stockpile; (5) appropriate conditions for
> quarantine and isolation; (6) immunization procedures; and (7)
> issuance of guidelines for prophylaxis and treatment of exposed and
> affected persons.

**2. Religious exemption from immunizations (G.S. 130A-157)**

> Previous law established a religious exemption from immunizations
> required for school attendance. The new law extends the religious
> exemption to any immunization required under the authority of Chapter
> 130A, including immunizations that may be a required control measure
> for a natural disease outbreak or an outbreak caused by bioterrorism.

**3. Use of non-licensed health care providers to provide services in an
emergency**

> a\. [NC Medical Board may waive requirements (G.S.
> 90-12.2):]{.underline} The North Carolina Medical Board may waive
> licensure requirements in an emergency or disaster, in order to permit
> the provision of emergency health services to the public. This would
> permit, for example, physicians from other states or retired
> physicians to make their services available in an emergency.
>
> b\. [Immunity from liability:]{.underline} G.S. 166A-14(a) provides
> immunity from liability for emergency management workers. An amendment
> to G.S. 166A-14(d) makes clear that this immunity extends to persons
> performing emergency health care services pursuant to a waiver of
> licensure requirements under G.S. 90-12.2.

**4. Hazardous materials response program extended to terrorist
incidents**

> Amendments to G.S. 166A-20 through 166A-26 extend the state's existing
> hazardous materials emergency response program to terrorist incidents.
> This means, among other things, that the program must have guidelines
> for responding to terrorist incidents, and that regional response
> teams have immunity from liability when responding to terrorist
> incidents pursuant to appropriate authorization.