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Appendix A. Due Process

Acknowledgements:  We would like to extend our thanks to Joseph Foster, JD, Senior Attorney, Office of the General Counsel, Public Health Division, CDC, and James Misrahi, JD, Senior Attorney, Office of the General Counsel, Public Health Division, CDC, for their invaluable input on this Appendix. 

Tuberculosis (TB) is an airborne infectious disease that is caused by Mycobacterium tuberculosis. Approximately 11,000 to 12,000 individuals develop TB disease annually in the United States and there are about 9 million new TB cases worldwide each year. Measures taken by public health officials to prevent and control TB that involve physical constraint (e.g., isolation, confinement in a facility) implicate due process because such action may infringe on individual liberty. A proper balance must be struck between protecting the public’s health and protecting the liberty interests of the person suspected or confirmed to have active TB. With treatment, persons with pan-susceptible TB (TB that is susceptible to all four first-line anti-TB drugs) may be rendered non-infectious in as little as 1 to 2 weeks, but it can take months of treatment before MDR and XDR TB patients become non-infectious. In addition, the treatment period for TB is longer than most other communicable diseases (6 to 9 months for pan-susceptible TB and 2 years or more for MDR or XDR TB). Therefore, measures that may be necessary to protect the public’s health from transmission of TB, such as isolation and confinement in a facility, could entail physical restriction spanning weeks, months, or longer. Consequently, due process has been a frequent subject of challenges to TB laws or other types of government action. 

The due process clause of the Fourteenth Amendment to the U.S. Constitution prohibits state governments from depriving individuals of life, liberty, or property without due process of law. “Substantive due process” generally requires the government to have adequate justification for implementing laws or taking other official actions that deprive individuals of life, liberty, or property. “Procedural due process” requires the government to use fair and reasonable procedures when restraining a person’s liberty. Notice and an opportunity to be heard are among the most fundamental procedures that must be available. Public health officials generally employ a step-wise approach to implementing TB control measures, beginning with the least restrictive measure necessary to address the specific facts and circumstances of a case. The “least restrictive measure” is the intervention that restricts the patient’s activities the least while providing sufficient protection to the public from TB transmission. A determination of the least restrictive measure requires an individualized assessment of the patient and his/her circumstances, and includes consideration of factors such as past or present adherence to treatment and infectiousness. 

All state TB prevention and control laws must comport with federal constitutional requirements; however, considerable variation exists state-to-state not only in the laws but also the applicable due process standards based upon state constitutions, court decisions, and legislative enactments. While the table below presents general examples of public health actions and the possible measures that may be taken to accommodate due process implications, some states may require more than what is presented and some may require less. It is therefore imperative that TB programs consult their legal counsel to determine the applicable requirements in their jurisdiction. 

Generally speaking, public health officials may exercise TB control laws that deprive an individual of his or her liberty if reasonable justification exists for doing so and the individual is afforded commensurate due process. Health officers may order a person suspected or confirmed to have active TB to adhere to a variety of TB control measures. Notice and an explanation of the consequences of violating the order generally must be provided to the patient. In the majority of states, a health officer or other public health official may issue an initial order (for treatment or examination), but then must apply to a court of competent jurisdiction for enforcement or validation of the order if the individual is nonadherent. Some states grant public health officials authority to petition the court directly for an order for TB control measures such as examination or outpatient treatment. Persons suspected or confirmed to have active TB generally may be detained without a prior hearing if public health officials reasonably believe that the public’s health would be threatened in the absence of such detention. This is commonly referred to as “emergency detention.” Most state laws then require a hearing before a court within a timeframe specified by law to determine whether the patient should remain confined, in which due process protections generally include a right to counsel, a right to present evidence, a right to cross-examine witnesses, and a right to appeal. In these circumstances, confinement in a facility until completion of treatment is generally considered to be the most restrictive measure.

Examples of Public Health Actions Examples of Potential Due Process Measures

Order to report to the health department or to a physician for counseling and education (about TB disease, infection control measures, and/or drug and alcohol issues)3

  • Reasonable grounds to believe the person has active TB and is nonadherent to his/her treatment plan, or has exhibited a need for drug and alcohol counseling
  • Notice provided to person with suspected active TB
  • Legal authority under which the order is issued
  • Other terms and conditions that may apply
  • Explanation of consequences of nonadherence to order

Order for examination for suspected active TB4

  • Reasonable grounds to believe the person has active TB and is nonadherent to voluntary examination
  • Notice provided to person with suspected active TB
  • Legal authority under which the order is issued
  • Name of person to be examined
  • Time and location of examination
  • Other terms and conditions that may apply
  • Explanation of consequences of nonadherence to order

Order for emergency detention

  • Reasonable grounds to believe the person has active TB and will not adhere to voluntary confinement
  • Notice provided to person with suspected or confirmed active TB
  • Legal authority under which the order is issued
  • Location of facility where person will be detained
  • Right to request release
  • Explanation of consequences of nonadherence to order
  • Right to a hearing after person is detained as required by state law, if public health officials seek continued detention (see footnote 6)

Order for:

  • Completion of treatment until cure (outpatient)
  • Directly observed therapy
  • Exclusion from work or other public settings
  • Isolation in the home (with or without electronic monitoring device)5
  • Confinement in a facility for treatment
  • Reasonable belief or  clear and convincing evidence that the person has active TB and is nonadherent to voluntary disease control measures
  • Notice provided to person with suspected or confirmed active TB
  • Legal authority under which the order is issued
  • Individualized assessment of circumstances that constitute basis of the order
  • Period of time during which the order is effective
  • Explanation of consequences of nonadherence to order
  • Right to request release, if order is for confinement
  • Right to hearing, if hearing is required under state law6

3 An order to report to the health department for counseling and education is separated from other types of orders because it is a less restrictive alternative and would not encompass the same due process measures as orders for more restrictive disease control measures.

4 An order for examination is separated from other orders because state laws generally treat examination as a less restrictive alternative to other disease control measures, such as confinement.

5 Isolation with electronic monitoring is offered as a less restrictive alternative to confinement in a facility when a patient has demonstrated nonadherence to isolation in the past or presently.  If an isolation order compels isolation through completion of treatment, a court hearing would generally be required with full hearing rights.

6 State laws vary with respect to when a hearing is required: some states provide for a hearing when a health order is challenged by the individual with suspected or confirmed TB, and state law allows for judicial review; some provide for a hearing when an order is violated and the health officer petitions the court to enforce/validate the order; and others provide for a hearing when a court order is sought in the first instance. The government is generally required to prove by clear and convincing evidence that confinement is necessary to protect the public’s health at a hearing for a court order for confinement in a facility (also called commitment). The individual has a right to counsel, right to present evidence and cross-examine witnesses, right to a transcript of the proceedings, and a right to appeal.

 
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