Changes to isolation, quarantine rules moving fast

After months of inactivity, the court case over changes to the stateás isolation and quarantine rules is now moving quickly.

According to a scheduling order filed Friday, the stateás appeal in George M. Borrello et al v. Kathleen C. Hochul et al will be heard during the Fourth Department Appellate Divisionás 10-day term beginning Tuesday, Sept. 5. The attorneys will be given 20 daysá notice before the final date is set. Both sides have to file briefs in the case by April 12.

Among the changes being fought is a new section of the state health law spelling out new isolation and quarantine procedures that could be used when someone is suspected of carrying a disease. Isolation and quarantine orders would include home isolation or other residential or temporary housing location that the public health authority issuing the order deems appropriate, including a hospital if necessary but including apartments, hotels or motels. Specifically, an isolation or quarantine order would be required to specify the basis for the order, the location the person is to isolate or quarantine unless travel is authorized ä such as for medical care; the length of the order; and instructions to prevent transmission to people living or working at the isolation or quarantine location. The new guidance includes the right to request the public health authority issuing the order inform a reasonable number of people of the order, a statement the person has the right to seek judicial review of the order and a statement that the person has the right to legal counsel, including public defense.

Also spelled out is authority for public health bodies to monitor people to make sure they are complying with an isolation or quarantine order to determine if the person needs additional medical care; coordination with local law enforcement to make sure people comply with the order; and provision of food, laundry, medical care and medications if they are not otherwise available. Any person who violates a public health order shall be subject to all civil and criminal penalties as provided for by law. For purposes of civil penalties, each day the order is violated is a separate violation.

The state argues State Supreme Court Justice Ronald Ploetz of Cattaraugus County erred in four aspects of his decision to prevent the state from implementing the new rules: that Sen. George Borrello and two fellow legislators didnát have standing to sue; that the proposed rule doesnát conflict with existing state Public Health Law but instead clarifies it; that the new rule doesnát conflict with any of the laws Borrello and his fellow lawmakers cited; and the proposed rule advances the mission the state Legislature gave to the state Health Department.

Borrello and his fellow plaintiffs had argued the Health Departmentás proposed rules violated due process rights for those being involuntarily confined, particularly when compared to existing state Public Health Law used throughout the COVID-19 pandemic. Ploetz sided with Borrello and the other plaintiffs in the case, ruling the proposed administrative rules disregarded any balance of individual rights against the needs of public safety rules, that the Health Department had not just filled in details of a broad legislative policy but used a blank slate to write its own rules, and that the Health Department had not used any special expertise or competence in the field to develop its proposed rules.

âInvoluntary detention is a severe deprivation of individual liberty, far more egregious than other health safety measures, such as requiring mask wearing at certain venues,ã Ploetz wrote in his decision. âInvoluntary quarantine may have far reaching consequences such as loss of income (or employment) and isolation from family. While Rule 2.13 provides that isolation and quarantine must be done àconsistent with due process of lawã and the detainee has the right to seek a judicial review and the right to counsel, these protections are after-the-fact, and would force the detainee to exercise these rights at a time when he or she is already detained, possibly isolated from home and family, and in a situation where it might be difficult to obtain legal counsel in a timely manner. Rule 2.13 merely gives âlip serviceã to Constitutional due process.ã


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