On behalf of Virginia families, we oppose the proposed amendments to 12 VAC 5?90 that would mandate, for every person who gets the flu, that their name and personal information be reported to the government. (Including, "at a minimum", the following: their "name, address, age, date of birth, race, sex, and pregnancy status for females; ... available laboratory tests and results") We believe many Virginians would find this objectionable as an unnecessary and unwarranted governmental overreach into their privacy. Given that influenza is a very common sickness, this attempt to mandate reporting of identities and personal information to the government appears to be a new level of government surveillance into the ordinary life events of Virginia's citizens.  (Note: The Department's own 2018-19 Seasonal Influenza Surveillance Report states that "The CDC estimates that during the 2018-19 flu season in the US, 37.4 million – 42.9 million people got sick with the flu.") This likely explains why, until now, the regulations have expressly limited physicians' reporting of influenza cases to only the number of cases and type. (In 12VAC5-90-90(A) and (C).)

 

Moreover, the Town Hall Agency Background Document misleads the public about the nature and effect of this proposed change. On page 1, under "Brief Summary", the agency describes this change merely as "removes the requirement to report weekly counts of influenza diagnoses." But that is a glaring mischaracterization of what the actual proposed amendment will do. The amendment strikes the following words: "except that influenza should be reported by number of cases only (and type of influenza, if available)". Read in context, it is clear that the weekly reporting of the number of influenza diagnoses is not at all the point of the proposed amendment. Rather, the point is to begin requiring physicians and all "persons in charge of a medical care facility" to report every flu diagnosis, at the time it is discovered, and to provide "at a minimum" that person's "name, address, age, date of birth, race, sex, pregnancy status," etc. The misleading nature of the description is further demonstrated in the "Substance" section of the document, which states that "Amendments to current regulations will:" and then describes this amendment as follows: "Remove the requirement that physicians and directors of medical care facilities submit weekly counts of cases of influenza." Yet no mention is ever made of how individuals' names and personal information will now have to be reported to government officials when they get the flu. Neither is a justification anywhere offered for instituting this mandate. This gross mischaracterization only serves to confirm many Virginians' suspicions and concerns over why their government suddenly wants to know everything about them when they catch a common sickness.  

 

The Board has made this a "Fast-Track" regulation. According to Va. Code § 2.2-4012.1, the Fast-track rulemaking process is reserved only for "rules that are expected to be noncontroversial." While very few people are likely to be carefully watching for, reading, properly analyzing, and commenting on such subtle amendments in the minutia of health regulatory policy, that does not mean that it would not be controversial to those who did know about it. This is most definitely a controversial change, and we urge the Board to treat it accordingly, by pulling it out of this Fast-track process altogether. Given its controversial nature, this raises a serious question as to its legal legitimacy in this process.

 

Please do not promulgate this unnecessary overreach into Virginians' privacy. But at the very least, do not do it through a stealth "Fast-track" process where virtually no one is looking or would even think to look.