New Kansas privacy law crimps contact tracing for COVID-19

TOPEKA — The Shawnee County Health Department took the extraordinary step of issuing a public health advisory July 7 warning travelers COVID-19 cases had been linked to the restrooms and food court at an Interstate 70 service area.

Given the steady flow of humanity through the rest stop east of Topeka from July 2 to July 4, it would have been futile to attempt contact tracing of people who entered a building open to eastbound and westbound motorists on the Turnpike. The next-best option was to issue a news release pinpointing the problem area.

“While the risk is most likely low for infection, it is not zero, and individuals should contact their health care provider if they begin to exhibit any symptoms,” warned Gianfranco Pezzino, the county’s health officer.

During the COVID-19 crisis, health departments in Kansas demonstrated a preference for not identifying by name the 325 known clusters of COVID-19 tied to 7,500 cases of infection and 235 deaths. The majority of outbreaks confirmed in nursing homes, meatpacking plants and other locations were disclosed to the public without revealing the specific company or organization.

However, a change in state law curtailing person-to-person tracing of the virus may prevent the state’s 105 county health departments and the Kansas Department of Health and Environment from maintaining that level of anonymity. The duty of health agencies to inform people potentially exposed could be transformed into blunt news releases pinpointing the source of exposure.

The state law taking effect Friday and expiring May 1, 2021, will restrict the ability of government agencies to engage in contact tracing, a core disease control measure used worldwide since the 1930s. It will become more difficult in Kansas to identify those who came in close contact with infected persons, warn them of potential exposure, and advise them to monitor themselves for symptoms or to quarantine in an effort to reduce the reproductive rate of the virus.

Under House Bill 2016, passed by a bipartisan majority of the Kansas Legislature and signed by Gov. Laura Kelly in June, an individual’s participation in contact tracing will become voluntary. Agencies performing tracing will be prohibited from deriving the identity of individuals and information on movement of people from cellphones. A county or state agency cannot require a third party, such as an employer, to collect that information on people. Individuals hired to do contact tracing must take an oath that they understand the law. Violation of the law is a misdemeanor tied to a fine of $500 and a month in jail.

“The language passed in HB 2016 will undoubtedly slow our ability to do contact tracing and stop the spread of COVID-19 at a time when we are classified by the White House as a red zone for infections and spread,” said KDHE secretary Lee Norman.

Attorney General Derek Schmidt recommended the language in the bill protecting Kansans from invasion of privacy through contact tracing. He said the capacity of government to rely on technology to track Kansans had moved far beyond pencil-and-paper techniques deployed by ancestors during the 1918-19 flu.

He said the state’s Contact Tracing Privacy Act, believed to have been the first of its kind in the United States, is designed to protect individual civil liberties as county health departments and KDHE work to restrain the virus.

“We believe these were sensible solutions to put guardrails in place so Kansans would have the necessary confidence in contact tracing programs to be willing to participate voluntarily, knowing that their personal information would be protected,” Schmidt said.

He said government assurances akin to “trust us, we’re here to help” would provide little comfort to people concerned about government intrusion in their lives. While perhaps promising from a public health standpoint, he said, unrestricted contact tracing appeared “disturbingly Orwellian and at least deserves pause for further study before government may undertake it.”

COVID-19 has infected 26,172 and killed 335 in Kansas since March. KDHE said the state recorded 1,063 additional positive tests and nine more fatalities from Friday to Monday.

Schmidt said the effort to bring Kansas law in line with the digital age produced a statute that wisely declared no person in Kansas could be required to participate or be forbidden from taking part in contact tracing. The law says information gathered through legitimate contact tracing must be kept confidential and securely destroyed when no longer needed for the pandemic.

Individuals who work as contact tracers are required to receive training and affirm their understanding of privacy and civil liberties protections in state law. KDHE is responsible for development detailed rules and regulations on what may be gathered, but that has yet to be completed.

“Rather than lecture and scold Kansans, our approach is to persuade, empower and reassure,” Schmidt said. “Kansans themselves bear the personal responsibility to choose our path forward by freely participating, or not, in ongoing efforts to track and contain the virus. We value both science and freedom, trusting in individuals more than government.”