Contact tracing for airlines -- no more excuses

In 2005, after the SARS global incident, and in preparation for a Bird Flu, the HHS proposed a rule requiring airlines to collect contact information for each passenger in the event they needed to be contacted because of exposure to another passenger, that might be discovered after the flight had ended. The airlines objected loudly to this new administrative burden, citing additional costs and even space on their servers would be exceeded by collecting this information. They objected because of stricter privacy laws in Germany, and our reservation system is Amadeus, a German application used by most airlines. Because the information is stored in Germany, the privacy violation happens within the jurisdiction of Germany even though it is transmitted electronically, it is still in the jurisdiction of Germany requiring compliance with German law. 

Graphic of patient zero on a flight and the passengers who were infected with SARS.

Are these issues still a concern in 2020? It is now 2020, and a revised rule is being proposed again, prompted by the risk of COVID-19 spread, as of  Feb 12, 2020, 85 Fed. Reg. 7874. This follows a notice of proposed rulemaking in 2016, 81 FR 54229, following the MERS and Ebola incidents. This proposed rule was published as a final rule, effective Feb 27, 2017, 82 Fed. Reg. 6890, codified at 42 CFR 70-71. The changes in the rule were noted that the domestic portion of this final rule includes new regulatory language clarifying when an individual who is moving between U.S. states is ‘‘reasonably believed to be infected’’ with a quarantinable communicable disease in a ‘‘qualifying stage.’’ These determinations are made when the CDC considers the need to apprehend or examine an individual for potential infection with a quarantinable communicable disease. 

So what does this mean? The rule explanation further clarifies who can be "apprehended": apprehension of an individual is based on a variety of criteria in addition to an illness report including: Clinical manifestations, contact or suspected contact with infected individuals, host susceptibility, travel to affected countries or places, or other evidence of exposure to or infection with a quarantinable communicable disease. 

Since the Paperwork Reduction Act is triggered by the collection of information, and MERS and Ebola were cited as a need for the regulation, there is a directive on the time for collecting this information: While HHS/CDC currently has approval to collect certain information concerning illnesses and travelers under OMB Control Numbers 0920–0134 (Foreign Quarantine Regulations, expiration date 05/31/2019) and 0920– 0488 (Restrictions on Interstate Travel of Persons, expiration date 05/31/2019).

Now, back to the current interim regulation, the collection of information is an enforceable rule when final, but it requires an order from the Director of CDC to begin collection of personal information: By this interim final rule, CDC requires airlines to collect and submit via electronic means to CDC, beginning within 24 hours of an order from the Director, certain data regarding passengers and crew arriving on flights arriving in the United States from foreign countries. CDC believes that this is the only mechanism by which it can efficiently obtain the information it needs for a public health response to outbreaks of communicable disease and that current regulatory requirements are not sufficient, especially in public health emergencies. CDC will exercise enforcement discretion where appropriate.

So, on Feb 18 2020, the CDC ordered the airlines to begin collecting personal contact information for passengers and crew traveling from China (or having been in China within the last 14 days), citing the proposed rule published Feb 27. 

How is contact tracing for airlines working in the U.S. for domestic flights? Here's my personal story. Yesterday, March 11, 2020, while on a flight, I spoke with a passenger who had been on a flight with a passenger who tested positive for COVID-19. I asked him how he found out --- was contacted by the airline. I had hoped the answer was that he had been promptly contacted by the airline but it was not his answer. He said he heard it on the news.

No more excuses, it is time for airlines to accept their responsibility. CDC has the authority to order the airlines to collect this information. The economic impact analysis states there was found to be no additional cost to the airlines for implementing this rule. 

Update, 3-16-2020: The ICAO, an independent association of international airlines develop common guidance for airlines. Here is their directive on contact tracing: "Airport preparedness guidelines for outbreaks of communicable disease" issued by ACI and ICAO (Revised April 2009):
Note.: To assist contact tracing, a passenger locator card is available on the WHO website (www.who.int/csr/ihr/locator_card) and a copy is provided in the Attachment to these guidelines. The International Air Transport Association, assisted by relevant experts, is evaluating different electronic methods that could facilitate traveller tracing. 

How many states have declared a state of emergency?

As of March 14, all states except Oklahoma and Maine had issued declarations of a state emergency.

As of March 13, 34 states have now issued declarations of a state of emergency.

As states announce confirmed cases of COVID-19 we can expect to see more states with emergency declarations. Almost half of all states (24) have declared a state of emergency due to COVID-19 by March 11, 2020. 

By March 9, Newsweek wrote that 8 states had issued declarations of a state of emergency, all issued by the Governor using Executive power. These states are: New York, Washington, California, Kentucky, Utah, Florida, Maryland and Oregon.

By March 9, 8 states had declared a state of emergency for their state:

1. Saturday, Feb. 29, 2020, Washington Governor Jay Inslee was one of the first U.S. governors to declare a state of emergency,

2. Wednesday, March 4, California Governor Gavin Newsom to declare a state of emergency

3. Sunday, March 1, Florida Governor Ron deSantis declared a public health emergency

4. Thursday, March 5, Maryland Governor Larry Hogan declared a state of emergency 

5. Friday, March 6, Utah Governor Gary Herbert announced a state of emergency

6. Friday, March 6, Kentucky Governor Andy Beshear declared a state of emergency 

7. Saturday, March 7, Florida Governor Ron DeSantis declared a level 2 state of  emergency (which followed a public health emergency declaration on March 1.)

8. Sunday, March 8, Oregon Governor Kate Brown declared a state of emergency

According to By March 11, 24 states had declared a state of emergency for their state:

Wednesday, March 11, Washington, D.C., Mayor Muriel Bowser declared a state of emergency.

Check the interactive map of states with emergency declarations on the National Governor's Association page for COVID-19.

Amerithrax changed our way of communicating with mail; will COVID-19 change our way of meeting?

Amerithrax changed our way of communicating with government officials and with each other. Mail sent through the U.S. Post Office could not longer go directly to Congress, but had to be sent to a testing facility in Ohio before eventually being received by the recipient often weeks later, and looking a bit "fried." We learned to conduct government business online through email, and through interactive forms on websites.

Announcements of cancellations of mass gatherings like the NBA, and universities, has pushed us to use online platforms for communication. We have always had them, but now they are our ways of communicating while avoiding the risk of contracting a pandemic disease. Will we become comfortable with them and find they increase our efficiency, like email did? Will we begin to replace in person meetings at a much greater rate after the COVID-19 pandemic subsides, leaving our lives changed forever, like Amerithrax?

Only time will tell, but if history is a lesson, our in person human contact may be changed forever.

The first death from COVID-19 in the U.S.

Today, the CDC announced the first death from COVID-19 in the United States, a 50-year-old man in Washington state, and the source of the infection is unknown, with no known contact with an infected person. According to Robert Redfield, Director of the CDC, in today's White House press conference said there was  "no evidence of link of travel" to how the man contracted coronavirus.

While anthrax is not communicable, it sounds similar to a case during the Anthrax attacks in the U.S. in 2001, where a death occurred with no contact with anthrax-containing envelopes. Ollie Lundgren in Connecticut, was an elderly lady who only went out to have her hair done once a week. After extensive investigation involving a wide net, it was finally determined that she had a habit of ripping her junk mail before throwing it in the trash, thereby aerating the anthrax spores and exposing Ollie to a spray of anthrax spores. It happened that her mail had been exposed in mail sorting machines, and unfortunately, she became a victim.

Should we be looking for a similar pathway of infection? What if this individual had a habit of popping the air bubble/pillow packing material from China, where lots of our products are made and packed? The incredible viability of this virus to survive passing through vent systems in buildings might just allow it to survive in sealed plastic packing pillows, thereby releasing air contamined while in China.

The CDC has a corps of epidemiologists the EIS, Epidemiological Investigative Service, experienced and professional on-the-ground experts who search for the cause of infected humans and animals. I expect they are asking the same questions, right now.

COVID-19, WHO and US legal authorities and actions, disaster planning

Here is what has happened so far regarding legal authorities. WHO declared a Public Health Emergency of International Concern (PHEIC) on January 30. The U.S. issued a National Public Health Emergency declaration on Jan. 31, 2020: https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx .  This allows the use of non-programmed funds, allows certain waivers, etc.. States may issue emergency declarations, usually from the Office of the Governor, but they probably would not declare an emergency until there is a community transmission. That is, where it is spread from person to person, not a traveler returning with the infection. 

The American Bar Association issued disaster planning guidance today, and so I am going to address the framework for disaster planning for law schools that I would recommend as a starting point. There are typically a few levels that are triggered by certain events in a biological disaster. For example, we are at the equivalent of Level 1 preparation, taking precautions for COVID-19 which are the same precautions you would take to avoid influenza, including hand sanitizer stations. Level 2, might include cautioning students and faculty to stay home if they feel sick, postpone or cancel events that involve large numbers of people, and cancel travel to areas that have travel warnings. Preparation for teaching online should be fully in development. Level 2 might be triggered by person to person transmission in the state.  Level 3 would be full closure and teaching online. That is just an example of how a plan might unfold. Level 3 might be triggered by person to person transmission in the state, coupled with an emergency order by the Governor. 

While I served as Chief Counsel at US DOT, we spent a year planning for Bird Flu, back in 2005-2007. I am optimistic that we will not get to my Level 2, given that MERS, SARS (all in the coronovirus family) and Bird Flu and Swine Flu (the influenza family) did not reach the worst case planning scenarios. That said, given the epidemiological predictions, we have not reached the peak, and if we do reach a community transmission state, we will have our own peaks in the U.S. with the epidemiological curve. If the pandemic does move toward the worst end of the scenario, a vaccine may be ready as IND status in a few months, which means it is still not fully approved, but in investigational new drug status, and you can use it, but with your informed consent of that status. (Using an IND status vaccine is one of the waivers by the President available in a national emergency declaration.) 

Finally, if you are wondering whether you should call it a "pandemic", the global definition for the term includes person to person transmission, has consequences including death, and has spread worldwide. COVID-19 meets this standard definition for a pandemic, if spread to 38 countries constitutes a "worldwide" spread. Yet, WHO (through their committee of experts) has not yet declared COVID-19 a pandemic. In my opinion, the reason it has not yet been declared a pandemic, is mostly for diplomatic and political reasons. They may be hoping that with the shrinking number of new cases in China indicates we are past the peak and on the downside of the epidemiological curve, headed toward fewer and fewer cases. They may be right. Epi-curves often have a second peak, usually smaller than the first, with new cases generated from the first peak. But we can hope we have seen the peak and that is what we should all be hoping for.

What will we be saying about vaccination 100 years from today?

It is always jolting to read news of a smallpox infection. The Idaho, Bonnie Daily Bee newspaper reported a story from 100 years ago today, of a smallpox infection in a school. It is surreal to think how calmly this report must have been received, since smallpox was still part of the human existence. What I also found interesting, is the encouragement to the readership to get the vaccination for smallpox because "there is no danger of infection or sore arms." One hundred years later, we are still encouraging people to get childhood vaccinations for their children, but with different objections, not founded in science. One has to wonder what will be published in the news format of the day, one hundred years from today. In one hundred years, will the readership wince in horror at the thought of a cold outbreak like we do for a smallpox outbreak? But the most important question is will we still be encouraging resisters to vaccinate their children, after another unnecessary outbreak of a disease?

Here's the report:

100 Years Ago

Pend d’Oreille Review

Jan. 16, 1920 — SCHOOL CHILDREN EXPOSED

County Health Officer Wendle reported that a little girl in the Washington school building came down yesterday with smallpox. Her sister was home with the disease, the parents ascribing her symptoms to eczema, and not calling a physician.

Today the Washington school children are being vaccinated and two rooms exposed were fumigated. With 16 cases of smallpox reported in the county this week, Dr. Wendle advises general vaccination and states that under modern methods of vaccination there is no danger of infection and sore arms. 

Bioterrorism Victims (and anniversary) Ignored

A subtle reminder of the 2001 anthrax attacks, triggering the most expensive FBI investigation in its history, appeared in a "this day in history" note today, October 5, 2019:

"2001 — Tabloid photo editor Robert Stevens died from inhaled anthrax, the first of a series of anthrax cases in Florida, New York, New Jersey and Washington."

Five victims died in the anthrax attacks of 2001, and about a dozen were infected but survived. The bioterror attack followed the shocking 9/11 attack on the United States. The anthrax attacks clearly meant to mislead the investigators into believing Al Qaida was responsible, with the scrawled letter that came in the envelopes containing anthrax spores intended for inhalation by the victims.

The FBI, led by Robert Mueller, had to quickly get up to speed on understanding biology as a weapon. Not surprisingly, the investigation was frought with missteps and confusion. The investigation dragged on for ten years, and was only ended with the suicide of the most likely suspect, who had not yet been arrested by the FBI. 

The United States through the National Institutes of Health, and its National Institute of Allergies and Infectious Diseases (NIH/NIAID) funded Centers of Excellence throughout the U.S. to pull together our best research on combatting infectious diseases. This program lasted a little more than ten years, and Pres. Obama chose to let the vast scientific research capacity that was built dissolve into history, with no continuing support. Bioterrorism started to fade from memory.

Today, undergraduate students were mostly born after the 9/11 attacks and the anthrax attacks. Recognizing the anniversary date of the first anthrax death of Robert Stevens, is a reminder of that horrendously terrorizing period in our nation's history. It should also serve as a reminder that we are still unprepared and vulnerable to another bioterrorism attack, today with vastly better biotechnology tools to develop bioweapons.