(from Maine Townsman, April 1997)
By Joseph Wathen, Esq., MMA Staff Attorney
AUTHOR'S NOTE: Rabies is on the rise in Maine, and there is much confusion about who is responsible for doing what. This article addresses many of the legal questions asked by municipal officials. An article by Jo Josephson in the May 1996 TOWNSMAN also provides good information about the resources and equipment available to handle rabies cases. That article should be read in conjunction with this one. Instead of waiting for rabies to become a crisis in your community, you should start now by developing a rabies management plan and making the appropriate contacts with veterinarians, animal shelters, game wardens and other people who may be involved.
Where do we find the law dealing with rabies, and how long has this law been around?
The primary law is 22 MRSA §1313 and §1313-A. That law does not provide a lot of detail, but the rules adopted by DHS pursuant to the law go into great detail about who is responsible for handling rabies cases. The rules are found at 10 CMR 144A, Chapter 251. The law and rules are reproduced on pages 65-74 of the 1995 Rabies Management Manual (the so-called "blue book") available at no charge from the Animal Welfare Board (287-3846). The law became effective on October 13, 1993. It is critical that the animal control officer (ACO) have a copy of the blue book, as that is where the legal definitions and duties, as well as recommended practices, are found.
Isn't the law an unfunded mandate as it applies to municipalities, and if so can we ignore it?
It is an unfunded mandate but you can not ignore it because it was passed by the necessary 2/3 majority of the Legislature, and is therefore binding, despite the lack of funding.
What exactly is the municipality's responsibility if we receive a call about a suspected rabid animal?
This gets somewhat confusing, so it is necessary to read the rules a few times to see how they work. In a nutshell, the rules identify three categories of suspected rabid animals:
- domesticated stray animals;
- domesticated animals whose owner is known; and
- undomesticated animals.
The rules further identify the eight steps or activities involved: response to a call, capture of the animal, transportation, confinement, euthanasia or shooting, decapitation, testing, and disposal of the body.
The chart illustrates who does what depending on the animal and the activity. Particular duties are discussed in the questions below.
What is the municipality's duty to respond, and who does this?
The ACO shoulders the bulk of the work. If the suspected rabid animal is undomesticated or is domesticated but stray, the ACO must respond. If it is a domesticated animal with a known owner, the ACO may respond if the "municipality" regards the animal as a threat to public health. The rule does not say who the "municipality" is, but a reasonable interpretation is that it means the ACO in consultation with the selectmen, councilors or town manager.
In the case of an undomesticated animal, the rule states that a game warden should be contacted by the ACO before responding; the law (22 MRSA §1313) states that the game warden shall assist in the response. Rather than getting hung up on this discrepancy between the rule and the law, the ACO should attempt to contact a game warden, but proceed with a response even if the warden does not show up or cannot be reached.
I am the ACO. After I respond to a call, what should I do as far as capturing and transporting or otherwise controlling a suspected rabid animal?
Once again, this depends on the animal and the situation. If it is a domesticated stray animal, capture it and transport it to a veterinarian for testing. However, if the animal poses imminent harm to humans or other animals, you may shoot the animal if you are "qualified to shoot" (this phrase is discussed in a question below). If you are not so qualified, a law enforcement officer (LEO) may shoot the animal.
If the animal is undomesticated, it may be captured by the ACO, but the rule does not say what the ACO does with the animal. A game warden is responsible for transporting the animal, although the rule does not say where to bring it. In practice, many veterinarians do want wild animals, so in most cases the animal is shot by the warden, a law enforcement officer, an animal damage control (ADC) agent, or an ACO who is qualified to shoot.
In the case of a domesticated animal whose owner is known, the owner is responsible for capturing the animal and transporting it to a veterinarian. As mentioned above, if the animal is considered a threat to public health, the ACO may capture and transport the animal.
When should a suspected rabid animal be shot, and who can do this?
A domesticated animal - whether stray or owner-known - may be shot if harm to humans or other animals is imminent. An undomesticated animal should be shot if it has exposed a human or a domestic animal. Exposure can occur through a bite, or even a non-bite contact such as a scratch, abrasion, or contact with an open wound or mucous membrane.
A game warden, law enforcement officer, or ADC agent may shoot an animal, as may an ACO who is qualified to shoot. Regardless of who does the shooting, it is critical NOT TO SHOOT THE ANIMAL IN THE HEAD, as the rabies virus is concentrated in the brain tissue.
The law does not define "qualified to shoot," so it is up to the municipal officers to decide what type of training or experience qualifies an ACO to shoot an animal. MMA strongly recommends that the ACO be provided with some sort of firearms training by a police officer or game warden in order to be considered qualified to shoot.
The rules use the term "suspected rabid animal." What exactly does that mean?
This is defined in § 2.W of the Rule, and is very broad. A suspected rabid animal is:
- any mammal, domesticated or undomesticated, showing signs of rabies;
- any undomesticated mammal which has potentially exposed through bite or non-bite exposure, a human or domesticated animal; and
- any domesticated mammal which has bitten a human or domesticated animal.
An animal which has tested positive for rabies is a "confirmed" rabid animal.
What is "exposure" to rabies or a possible case of rabies?
Exposure is defined in §2.M of the Rule. Rabies is transmitted when saliva or neural tissue of an infected animal is introduced into open cuts or wounds in a person's or animal's skin, or into mucous membranes (mouth, nose, eyes). Exposure can occur by an actual bite, or may occur by a scratch, cut, abrasion or contact with the mucous membrane. These latter forms of exposure are called "non-bite" exposures. Non-bite exposure can also occur if your dog or cat eats or chews on the carcass of a rabid animal.
Should all suspected rabid animals be tested for rabies?
Testing is done by the DHS Health & Environmental Testing Laboratory (HETL) in Augusta, Maine. The HETL will not test every animal suspected of rabies. Instead, testing will be done only for (1) a suspected rabid animal which has exposed a human, or (2) a suspected rabid animal which has exposed a domesticated animal. If a wild animal is acting strange (exhibiting signs of possible rabies) but has not exposed (by bite or non-bite exposure) a human or domesticated animal, the HETL does not want it. In that situation, the ACO who is qualified to shoot or a game warden should shoot the animal and dispose of the carcass in the appropriate manner (discussed more below).
The HETL will not accept live animals for testing, nor will it accept the entire carcass. Instead, the HETL will accept only the head of the animal.
Who provides for or performs the decapitation of an animal, and who makes the arrangements for transport the head to the HETL?
A domesticated animal must be decapitated by a veterinarian. In no circumstances should the ACO decapitate an animal. If the animal is a stray, the municipality is responsible for the costs of decapitation and for transportation of the head to the HETL. If the animal's owner is known, then the owner must arrange for decapitation (by a veterinarian) and transportation of the head to the HETL.
If the animal is undomesticated, decapitation may be performed by a veterinarian or by a game warden or ADC agent who is trained to perform that procedure. The game warden is responsible for transportation of the head to the HETL
For recommended practices on decapitation and transportation, see pages 50-54 and page 64 of the Rabies Management Manual.
Who is responsible for disposal of the carcass, and what are the recommended procedures?
In the case of a domestic stray animal, the ACO is responsible for the proper disposal of the carcass. In most cases, the veterinarian who euthanized the animal will have a facility to dispose of the carcass. The municipality is responsible for the costs of disposal. Field disposal is also an option, as long as the disposal complies with the Department of Agriculture Carcass Disposal Rules.
In the case of a domestic animal with a known owner, the owner is responsible for the costs of carcass disposal. Usually this is done through a veterinarian. A carcass may also be disposed of by field burial as long as the burial complies with Dept. of Agriculture Carcass Disposal Rules.
Municipalities that expect a significant volume of carcasses may want to establish a carcass disposal cemetery. This is cheaper than paying a veterinarian to incinerate the remains. Contact the Dept. of Agriculture at 287-1132 for a copy of the Carcass Disposal Rules. At this time the Rules are in draft form awaiting final adoption, but we expect no significant changes in the final rule regarding field disposal.
In the case of an undomesticated animal, the game warden is responsible for disposal of the carcass. This should be done according to the Carcass Disposal Rules. The carcass of a suspected rabid animal should not simply be tossed into the woods, as another wild or domestic animal may eat it and contract the rabies virus.
What does the law say about quarantine of an animal which has bitten a person or another domestic animal?
If a domesticated animal bites a human or another domesticated animal, see §5 of the Rule. That rule applies to the animal that bites, not the animal that is bitten. If the animal is unhealthy, it must be examined by a veterinarian to determine if testing is necessary. The ACO must arrange transportation to a veterinarian if the animal is a stray, while the owner must arrange this if the animal has a known owner.
If the animal appears healthy, has a current rabies vaccine and the owner is known, it must be quarantined for 10 days at a veterinary hospital, a state-licensed boarding kennel, or at the owner's home under certain conditions which are specified in §8 of the Rule. If the animal does not have a current rabies vaccination, it must be quarantined for 10 days in a veterinary hospital or a state licensed boarding kennel; home quarantine is not an option in this case. The owner is responsible for all costs of quarantine.
In the case of a stray dog that bites, it must either be quarantined for 10 days in a state-licensed shelter, or held for 8 days and then euthanized and tested. The municipality is responsible for the costs of quarantine or euthanasia and testing for stray dogs.
In the case of a stray cat that bites, it must be immediately euthanized and tested, or may be quarantined in a licensed shelter for 10 days. Once again, the municipality is responsible for the costs in either case.
In the case of an undomesticated animal, refer to Rule §6 (MMA Legal Services has a chart which summarizes this rule). The animal should be euthanized or shot, and the head submitted for testing. According to 22 MRSA §1313(3), the Dept. of Inland Fish & Wildlife is responsible for all costs of transportation, quarantine, euthanasia and testing of undomesticated animals. The law does not say how the municipality will get IF&W to pay these costs if the ACO responded to the call, so we recommend that you draft a rabies management plan to iron out these details before a crisis starts. I will work with the Rabies Management Group if problems arise over payment or repayment of costs, so let me know how this plays out in practice.
What about quarantine for a pet that has been bitten or otherwise exposed to a suspected rabid animal?
This is covered by §7 of the Rule (MMA Legal Services has a chart which summarizes this rule). This applies to the animal that is bitten or exposed, not to the animal that does the biting. If the owner is known and the pet has a current proof of rabies vaccination, it must be isolated for 45 days in either a veterinary hospital, licensed shelter, or the owner's home under the conditions in §8 of the Rule.
If the animal has no current proof of vaccination and is exposed to a confirmed rabid animal, veterinarians strongly recommend that the animal be put down. If the exposure is from a suspected rabid animal, the pet may be euthanized or may be confined for 6 months. The details of confinement are specified in Rule §7.B.2. The owner is responsible for all costs of confinement and testing.
Stray dogs must be confined for 8 days in a licensed shelter and then euthanized. Stray cats must be euthanized immediately. The municipality is responsible for the costs of euthanasia for strays.
I am the ACO. In a few cases I have had trouble with a dog owner who will not keep his dog (who was exposed to a potentially rabid animal) confined in the appropriate pen for the appropriate time period. What can I do to enforce the law?
Unfortunately, enforcement is an area where the law is seriously deficient. Neither the law nor the rule provides any penalty for a violation of this sort. At most, it appears that you could get a court order requiring the owner to comply, and if he violated the court order he would be subject to contempt of court. However, this procedure (court order) is slow and expensive. Instead, the municipality may want to consider adopting its own ordinance on confinement of animals, and add some monetary penalties (and the recovery of attorney's fees) for a violation of the ordinance. MMA Legal Services can provide a sample of a local ordinance.
We are the Board of Selectmen. Our ACO wants carry a weapon as part of his job, particularly if he has to respond to a potentially rabid animal situation. What liability issues does the town face if we allow this?
First, the municipal officers (selectmen or council) must determine as a matter of policy whether they want the ACO to have the authority to use a firearm at all. If so, then you need to purchase police liability insurance, as your general liability insurance will probably not cover the use of a firearm. Keep in mind that this is so regardless of whether the ACO carries a sidearm on his or her person, or whether he or she simply keeps a pistol or long gun in the vehicle. The bottom line is that if the use of a firearm of any sort is allowed, the municipality will need additional insurance coverage. The municipality should contact its own insurance agent or carrier to determine exactly what it has or needs for coverage in this regard.
Second, if your ACO is authorized to carry a weapon, make certain that he or she is provided some training or guidelines so that he or she is "qualified to shoot". This is discussed further in the May 1996 Townsman.
If you decide not the authorize the ACO to use a firearm on the job, make it clear to the ACO that use of a personal firearm (some ACO's have concealed weapons permits) is not within the scope of his or her authority, so that if a lawsuit is filed the ACO will be on his or her own for attorney's fees and any judgment. In other words, the town's insurance carrier may decline to cover the lawsuit. Each municipality should contact its own insurance agent or carrier to determine exactly what coverage it and the ACO has in this regard.
I am the Town Manager writing on behalf of the Council. What legal liability do we face if we decide not to have our ACO respond to rabies calls?
Most likely the town and the ACO will be sued by the person who is injured. The municipality may have some defenses under the Tort Claims Act, but it will in any event incur substantial attorney's fees and perhaps an adverse judgment. You may also find that your insurance coverage does not apply in the case of a willful and intentional refusal to perform a legal duty. Before taking this position (not to respond) you should contact your insurer to see whether you are covered if a lawsuit is filed.
Our ACO has not had rabies immunization, nor does she have the gear necessary to handle a rabid animal. Because of this, the ACO is not willing to respond to rabies calls. What should we do?
The ACO has a good point here - if she is going to respond to a rabies call she needs to do so in a safe and proper manner. However, this does not excuse the municipality from its legal obligation concerning rabies calls. What we recommend is that the municipal officers take steps - which may mean calling a town meeting if you have no funds currently available - to provide immunization and purchase the necessary gear. The financial burden may be too much for some smaller communities, so they should look into a sharing arrangement with other communities. For example, you could join with several towns to hire a joint ACO who is equipped to deal with rabies. Or, you could pay another town that has a qualified ACO to provide services to your town on an as-needed basis. This may be the best idea in communities where the ACO position has a high turnover, or where there is simply not enough work to justify the purchase of rabies-related equipment and immunizations. If you contract with another town to use its ACO, make certain that he or she is sworn as an official in your town as well, so that he or she will be acting within the scope of his or her authority when working in your town.