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Spokane, Washington  Est. May 19, 1883
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Sue Lani Madsen: Attempts to remove one viral stigma feeds another

UPDATED: Wed., Jan. 12, 2022

By Sue Lani Madsen For The Spokesman-Review

Legislation that passed in early 2020 to remove a decades-old stigma clinging to HIV status ran into the novel coronavirus in 2022. In an atmosphere where distrust of authority is endemic, the agenda for this week’s Washington state Board of Health meeting went viral on social media. More than 7,500 people requested to make comments at Wednesday’s virtual meeting. That would never have happened in the days when testifying at an agency board meeting meant traveling to Olympia.

House Bill 1551 was narrowly targeted at changing wording within existing law to refer to blood-borne pathogens instead of HIV/AIDS, reflecting the existence of better therapeutic and preventative measures. In the early years of the AIDS pandemic, fear drove policy. Anyone who was or was thought to be HIV-positive was stigmatized, losing opportunities for employment. Concern over the release of private health information like HIV status was one factor leading to the patient privacy laws now known as HIPAA.

And now we have mandates from the governor requiring disclosure of private health information as a condition of employment, for a virus far less deadly than HIV and in spite of a growing body of knowledge regarding preventative and therapeutic measures.

Testimony made it clear there is very little trust in our one-party government. State boards across all agencies as well as agency heads are appointed by the governor. When a single party has had a lock on the executive branch for three decades, those boards and appointed agency heads do not reflect the diversity of the state. It is doubtful if the Legislature would be so free with delegating rule-making authority to the executive branch if the executive branch were not captive to the same party.

When the Legislature passed HB 1551, it directed the Department of Health to update communicable disease rules related to HIV. That distinction between law and rule is significant. The Legislature controls the Revised Code of Washington. The RCWs delegate often significant rule-making authority to the executive branch departments and their staff. The rules thus created are codified in the Washington Administrative Code. And it was WAC 246-100-040 “Procedures for isolation or quarantine” which fed the fever of distrust.

Rumors of isolation and quarantine camps have surfaced at various times over the past two years. They do exist, but only as voluntary shelter locations for people who are homeless, were living in crowded households and seeking a place to self-quarantine, or for travelers or others passing through the state who needed to self-quarantine and didn’t have the means to pay for accommodations.

Voluntary isolation is not in question. But the text of WAC 246-100-040 says plainly, “At his or her sole discretion, a local health officer may issue an emergency detention order causing a person or group of persons to be immediately detained for purposes of isolation or quarantine” and “may invoke the powers of police officers, sheriffs, constables, and all other officers and employees of any political subdivisions within the jurisdiction of the health department to enforce immediately orders given to effectuate the purposes of this section.” It is doubtful many of Washington’s elected sheriffs would be cooperative.

State Board of Health Chairman Keith Grellner said he was aware that most counties have set up something for voluntary quarantine, and there are lots of examples but “we barely can fund staffing and structures for those who want it” and mandatory quarantine facilities don’t exist. “Don’t know what else we can say.”

But there’s no point pretending WAC 246-100-040 doesn’t say what it plainly says. “Immediately detained” under the police powers of the state is clearly stated. That it has never been used since the rule was adopted in 2003 only means it’s never been tested by the judicial branch for constitutionality or reviewed and overruled by the Legislature.

Earnest statements from the Board of Health at its Wednesday meeting are not reassuring to those who have little trust in the executive branch. It doesn’t mean it couldn’t be used or abused by a governor with no check and balance on his emergency powers. It’s a bad rule.

There are two ways the Board of Health and the Legislature could act to restore that trust. The Legislature could pass a bill to repeal WAC 246-100-040 and direct the Board of Health back to work on rule-making with more specific instructions to protect individual rights and freedoms. Or the Legislature could pass one of the bipartisan pre-filed bills providing for significant checks and balances by the Legislature on any future governor tempted to declare a never ending emergency.

Social media’s ability to take viral the agenda of a previously sleepy executive branch board meeting is another kind of citizen check and balance on government power. A State Board of Health technical advisory working group is just beginning to research the pros and cons of requiring COVID-19 vaccination for children in order to enroll in public school. Based on the public comment at today’s meeting, the public pressure will not be letting up.

Contact Sue Lani Madsen at rulingpen@gmail.com

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