American Journal of Law & Medicine

Unresolved issues in controlling the tuberculosis epidemic among the foreign-born in the United States.

I. INTRODUCTION

Tuberculosis (TB), "the world's most neglected health crisis,"(1) has returned after decades of decline, but has only gradually caught the attention of governments as a formidable threat to public health. By 1984, when TB cases hit an all-time low,(2) federal and state governments stopped supporting the medical infrastructure that once served to contain the disease.(3) State officials around the nation began dismantling laboratory research programs and closing TB clinics and sanitoria.(4) Since 1985, however, TB rates have steadily increased to 26,673 reported cases in 1992, and some have estimated that by the year 2000, there could be a twenty percent increase.(5) By 1993, Congress, realizing that TB could pose a major public health threat, allocated over $100 million to the Department of Health and Human Services for TB prevention and treatment programs.(6) Those funds, however, were sorely needed years before and amounted to only a fraction of what public health officials believe necessary to control TB today.(7) In the meantime, the medical community and citizens have put pressure on politicians and public health officials to control TB by other means, including public health law.(8)

Many critics view immigrants and immigration as a problem contributing to the TB epidemic. They find support in many sources, from newspaper articles to medical journals, which cite increased immigration as one of the main factors for the resurgence of TB.(9) A 1994 report in the Journal of the American Medical Association (JAMA) stated that the foreign-born living in the United States were responsible for sixty percent of the total increase in cases from 1985 to 1992.(10) The authors asserted that the increased risk of TB infection among immigrants "is primarily attributable to higher rates of . . . infection in the country of birth," suggesting that immigrants carry TB into the United States.(11) The report concluded that screening immigrants for TB is necessary to prevent the spread of the disease within the United States and that immigrants, along with HIV-infected persons, should be targeted for testing through immigration and public health law.(12)

The study's findings received widespread publicity,(13) and its recommendations gained immediate and popular support among certain special interest groups.(14) As a result, these groups proposed cracking down on illegal immigrants and further restricting legal immigration.(15) Additional support comes from the experiences of several public health officials on the West Coast. For example, Giseal Schecter, director of the San Francisco Department of Health's TB Control Program, attributed the increased rates of TB in San Francisco during the late 1970s to "massive immigration from Southeast Asia where TB testing was almost non-existent."(16)

Reports coming from the East Coast, particularly New York, however, seem to paint a different picture. According to the New York City Task Force on TB, urban areas are a breeding ground for TB, not because of immigration, but mostly because of high rates of HIV infection,(17) homelessness and inadequate health care.(18) According to the New York City Task Force on TB, "[t]uberculosis is a disease of poverty, social alienation, crowding, and homelessness. The epidemic will not abate until increasing proportions of the population have sufficient income to live decently and receive sufficient education to support themselves in our communities."(19)

The TB problem feeds off of social forces.(20) Ideally, the fight against TB in immigrants or any other population requires a plan that addresses all influencing factors and utilizes the knowledge acquired in ages past.(21) However, until the government improves housing, resolves crowding and fights homelessness, other TB control options such as requiring testing and treatment merit discussion. A critical look at various studies on TB reveals that the actual impact of immigration on the TB epidemic is not clear, leaving many questions unanswered.(22) This Article does not resolve the medical issues; it merely sheds light on which control strategies appear cost-effective and the legal issues such strategies raise.

Part II of this Article explains what TB is, how it spreads, the dangers it poses and the factors associated with its rise. Part III addresses the state of the law concerning excluding incoming immigrants and screening the foreign-born in the United States for TB. Taking into consideration the nature of the threat that immigrants may pose, Part III also discusses alternative options for requiring testing and treatment of immigrants in the United States, their legality and how they may apply to immigrants individually or as a group. In the process, the Article suggests policies for controlling TB among immigrants that conform to medical data, constitutional rights and common sense.

II. THE THREAT OF TB

A. MEDICAL BACKGROUND

TB is named for the bacteria tubercule bacillus, which causes the disease.(23) There are two stages of TB, latent (noninfectious) and active (infectious, fatal if untreated).(24) The latent TB stage begins when one breaths in a tubercule bacillus droplet.(25) The bacillus lodges itself somewhere in the body, but is not transmittable.(26) Active TB develops from the latent form when the bacteria multiplies, typically in the lungs (sometimes in bone marrow and nervous tissue), and begins to eat away at the lung tissue.(27) Spores in the lungs open up allowing the bacilli to be transmitted into the air in the form of droplets by coughing, talking or singing.(28)

Only about eight to ten percent of persons infected with TB will develop active TB in their lifetime.(29) However, the likelihood of developing active TB increases when one is immunocompromised - the body is less able to fight off diseases and illnesses - which occurs most frequently in the elderly, infants and especially those with HIV.(30) In fact, persons with HIV are about thirty times more likely to develop active TB from the latent form.(31) For AIDS patients, latent TB will likely become active within two years of initial TB infection.(32)

The various publications addressing the spread of TB send mixed signals as to just how contagious TB is.(33) While some sources arguably exaggerate its infectiousness,(34) a majority of medical experts contend that TB is not particularly easy to catch.(35) However, enough uncertainty remains about how TB spreads(36) that public health officials have good cause to be concerned. For example, in a widely publicized incident at a high school in California, a young girl's persistent cough went undiagnosed for months before doctors learned that active TB caused it.(37) The school then tested all the students, twenty-three percent (292 students) tested positive for TB.(38) Another eighty-four students tested positive several months later during the second round of testing.(39) Twelve students were treated for active cases of multidrug-resistant TB (MDR-TB), while another seventy were treated for latent MDR-TB.(40) Although the report did not state whether officials specifically believed all the cases to be the result of one person's persistent cough, "national experts" commented that it was "a textbook example of what may befall a community if even one case of TB is mishandled or ignored."(41) Whether the infection is easy to acquire, or whatever one's notion of easy is, one active TB case can infect hundreds of others and account for dozens of active cases.(42)

B. THE NEW TB EPIDEMIC: MDR-TB

Many doctors and public health officials are particularly alarmed about what is being called the new TB epidemic: the spread of MDR-TB.(43) MDR-TB is TB that has developed immunity to some or all of the drugs that have proven to work against ordinary TB.(44) There are currently five drugs in existence that are both effective and safe enough to combat TB,(45) and some strains of MDR-TB are resistant to all of them, leaving the infected person virtually incurable.(46) MDR-TB costs more in time and money to combat, and obviously renders the person infected with active MDR-TB a greater danger to society and to himself than one infected with ordinary TB. Currently only a small percentage of bacilli are multidrug-resistant, but this number is growing rapidly due to the difficulty in curing the disease and the appearance of new strains around the world.(47)

The presence of MDR-TB can be traced to one of the most difficult problems in controlling the threat of TB: nonadherence (patients refusing to take their medicine). Ordinarily TB treatment involves taking one to four pills every day for six to nine months.(48) Although one would expect that having TB provides enough motivation for most people to take the required pills on a daily basis for the entire period,(49) surprisingly many do not.(50) First, patients may suffer side-effects, such as nausea and somnolence, from the of personal situations such as homelessness,(52) mental illness,(53) and alcohol and drug abuse.(54) Immigrants may reject medicine for cultural reasons(55) or the social stigma associated with TB.(56) The main reason for nonadherence to treatment, however, is that patients suffering from active TB who take medication become noninfectious and feel much better after only a few weeks.(57) As a result, they stop taking the pills long before they should.(58) The result is poor patient compliance with treatment. The failure to adhere sets a vicious cycle in motion: the more the patient fails to treat his TB, the longer and harder his treatment will become. Therefore, the patient who struggles with adherence in treating ordinary TB will struggle much more if he develops MDR-TB, which requires taking several more drugs daily for up to two years.(59)

The dangerous consequences of nonadherence not only include failing to cure oneself fully of the disease, but also failing to kill off the remaining mutant strains of TB, allowing them to grow, multiply and perhaps infect others. While ordinary TB can be cured as long as the treatment is completed properly, MDR-TB may lead to death no matter what treatment one uses or how diligently one takes the medication.(60) Patients with MDR-TB suffer treatment failure eighty-three times more often than and suffer a relapse of the disease twice as often as those with ordinary, drug-susceptible TB.(61) The outlook is even worse for AIDS patients with MDR-TB, where about seventy to ninety percent die within four to sixteen weeks of diagnosis.(62)

C. The New TB Epidemic and Immigrants

Medical data show that certain factors account for the rise in TB. All experts believe HIV infection is an extremely important factor, if not the main reason, for the spread of TB in the United States.(63) Crowded living conditions also facilitate the spread of TB as demonstrated by very high rates in prisons, nursing homes and migrant farm worker camps.(64) Some commentators include the lack of access to health care as a major contributing factor.(65) Various sources increasingly cite immigrants and immigration as fueling the TB epidemic.(66) However, the extent to which immigrants are responsible for the TB epidemic is not as clear as some suggest, and not all studies support the conclusion that targeting immigrants will significantly reduce the threat of TB. The JAMA report, for example, admits to inadequate or sparse information on current TB screening and vaccination practices of the countries from which immigrants come.(67) It also lacks any figures on the number of foreign-born TB cases occurring in the nearly three million unscreened aliens in the United States, such as undocumented and temporary residents.(68) More significantly, the study shows that high rates of TB are consistently found in urban areas,(69) which also have the highest rates of poverty, drug abuse and HIV infection, and where the residents often lack access to health care.(70) These factors, rather than immigration or country of birth, may have fueled TB's reemergence.(71) In San Francisco, for example, where the "cause" of their epidemic was "massive immigration," current rates of TB infection for U.S. citizens, fifty percent of whom are white males with HIV, have surpassed those of immigrants.(72) Similar findings concerning the rates of MDR-TB in New York City show higher rates of MDR-TB among native African-Americans than immigrants,(73) despite the city's large immigrant population and historically cramped housing. These statistics prompted one New York City physician to conclude: "Our new TB problem is not the result of the U.S. population's being victimized by infected foreigners, but rather it is the direct result of our society's failure to provide for and then monitor the care of our own citizens."74

A 1994 survey found geography the strongest risk factor for MDR-TB in the United States.(75) This conclusion supports the JAMA study's findings that the five states with the highest TB rates - New York, Hawaii, California, New Jersey and Texas - accounted for ninety-two percent of the total United States increase of any kind of TB.(76) These states were also the intended states of residence for seventy-two percent of the legal immigrants in the United States.(77) This fact helps place immigrants and immigration on the list of causes of TB. However, this again raises the issue whether the high incidence of other factors including homelessness, poverty, HIV infection and crowded living conditions that account for high infection rates found in the urban areas where immigrants settle distort TB rates attributable to foreign birth.(78)

Current studies also conclude that recent transmission accounts for a substantial amount of TB cases in the United States. A modern technique, called restriction fragment length polymorphism (RFLP) analysis, now allows epidemiologists to distinguish among distinct TB mycobacterium strains, thereby revealing from where one person's infection may have come.(79) Two studies conducted in New York and San Francisco used this technique to find that one-third or more active cases result from recent infection.(80) The studies showed that one person could have a devastating effect on the spread of TB, thus "the treatment of patients with infectious TB must be prompt and effective."(81) In another study, epidemiologists using RFLP analysis traced back one-forth of the total U.S. cases of MDR-TB to four hospitals in New York City.(82) These and other studies,(83) and the experiences of public health officials,(84) suggest that the key to controlling TB is to shift resources toward screening high-risk populations to prevent active cases from occurring. Both the New York and San Francisco studies concluded that immigrants were more likely to develop active TB from prior infection in their country of origin than from recent infection in the United States.(85) The studies, however, did not analyze whether immigrants have helped contribute to the spread of the disease.(86)

Notwithstanding the interplay among the various risk factors for TB, critics maintain that in order to combat TB, immigration procedures and law need reforming. A year after the JAMA study, the New England Journal of Medicine (NEJM) published a study repeating Cantwell's earlier recommendations, finding similar results regarding the effects of immigration on the epidemiology of the TB epidemic.(87) Like the JAMA study, the NEJM study concluded that immigration profoundly affected the resurgence of TB in the United States.(88) The study pointed out that from 1986 to 1993, the foreign-born population in the United States increased by over forty percent.(89) The study also noted that "[t]he annual risk of infection in many of the countries of origin is 100 to 200 times the rate in the United States," suggesting that many immigrants bring TB to the United States.(90) Furthermore, the study re-confirmed an often demonstrated statistic that most of the foreign-born who develop active TB do so within the first few years of settling in the United States, which is another indicator that immigrants most likely contract TB in their country of origin and carry it to the United States.(91) The study concluded that improvements are needed in screening immigrants and refugees overseas and in reporting the results to American health authorities.(92) Furthermore, the study proposed that the federal government invest in "upgrading the standards and quality of TB-control programs in developing countries," especially in Latin America and Southeast Asia from where most immigrants come.(93)

III. LEGAL PROBLEMS

A. Screening Incoming Immigrants for TB

Some argue that the disease immigrants bring to this country, combined with the prevalence of poverty, crowded living quarters and HIV infection in the communities where they settle, make immigrants with TB a public health threat. Dan Stein, executive director of the Federation for American Immigration Reform (FAIR), stated: "It's no surprise, after 30 years of sustained illegal immigration, that we should see the resurgence of diseases we thought were long since conquered."(94) Stein warned that improved care for TB "will only increase America's lure for Third World residents, thereby erasing any gains."(95) FAIR thus proposed to crack down on illegal immigration and reduce legal immigration to help resolve the TB problem.(96)

I. State of the Law on TB Screening

In 1917, immigrants with TB "in any form" (latent or active) were excludable.(97) In 1961, however, Congress deleted the "in any form" provision, allowing immigrants with latent TB to enter.(98) Since then, the U.S. medical screening procedures focus on detecting active TB,(99) allowing most latent TB cases to pass into the United States.

The screening process that the Immigration and Naturalization Service employs to discover active TB includes a chest X-ray and gathering sputum samples.(100) The classes of immigrants tested include: (1) applicants for immigrant visas; (2) students, exchange visitors and other applicants for nonimmigrant visas, but only if required by their consular authorities; (3) refugees and (4) applicants for adjustment of status who already live in the United States.(101) In each of these classes, all persons fifteen years of age or older receive a chest X-ray.(102) If the chest X-ray reveals nothing abnormal, the immigrant passes the exam and, providing no other problems exist, is medically cleared for immigration.(103) If the X-ray shows an abnormality suggesting active TB, the doctor must take three sputum samples over three days.(104) If the sputum samples reveal TB on any one of the days, the immigrant receives a Class A medical certificate denoting "active, infectious TB."(105) Class A cases are excludable under the law and must complete TB treatment before obtaining medical clearance.(106) If sputum smears return negative, the applicant receives a Class B1 designation meaning "clinically active, not infectious."(107) Class B1 immigrants receive treatment only if they "appear[] ill and the examining physician thinks that treatment is indicated."(108) If the X-rays are abnormal, but suggest only inactive TB, the applicant receives a Class B2 designation meaning "TB, not clinically active, not infectious."(109) Class B2 cases "should be referred to a physician or local health department for further evaluation," but generally obtain medical clearance within a month. …

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