Menu of Suggested Provisions For State Tuberculosis Prevention and Control Laws

F. Confinement in a Facility

1. Administrative or Court Order for Confinement

Descriptive Note: This section contains examples of existing state statutory provisions on confinement of individuals with TB in a facility (also referred to as commitment, involuntary hospitalization, or isolation). Confinement in a facility is generally considered to be the most restrictive TB control measure, but may be necessary when less restrictive alternatives have failed and confinement is the only way to assure that the patient is adherent (and may be the only way to cure the patient of TB) and the public’s health is adequately protected. The provisions in this section were specifically chosen because they are reportedly effective in the jurisdictions in which they are in place. The first two bullets are provisions from high incidence jurisdictions (New York City/California [California’s and NYC’s laws on detention are identical] and Florida, respectively), and the third bullet is Wisconsin’s confinement law, which was recently upheld by the Wisconsin Supreme Court in In re Washington, 735 N.W.2d 111 (Wis. 2007). See Appendix B for more information on state cases related to TB prevention and control.

• Where the health officer determines that the public health or the health of any other person is endangered by a case of tuberculosis, or a suspected case of tuberculosis the health officer may issue any orders he or she deems necessary to protect the public health or the health of any other person, and may make application to a court for enforcement of such orders. In any court proceeding for enforcement, the health officer shall demonstrate the particularized circumstances constituting the necessity for an order. Such orders may include, but shall not be limited to:
  • An order for the removal to and/or detention in a hospital or other treatment facility of a person 1) who has active tuberculosis that is infectious or who presents a substantial likelihood of having active tuberculosis that is infectious, based on epidemiologic evidence, clinical evidence, x-ray readings or laboratory test results; and 2) where the Department finds, based on recognized infection control principals, that there is a substantial likelihood that such person may transmit to others tuberculosis because of his or her inadequate separation from others; and
  • An order for the removal to and/or detention in a hospital or other treatment facility of a person 1) who has active tuberculosis, or who has been reported to the Department as having active tuberculosis with no subsequent report to the Department of the completion of an appropriate prescribed course of medication for tuberculosis; and 2) where there is a substantial likelihood, based on such person’s past or present behavior, that he or she cannot be relied upon to participate in and/or to complete an appropriate prescribed course of medication for tuberculosis and/or, if necessary, to follow required contagion precautions for tuberculosis. Such behavior may include, but is not limited to, refusal or failure to take medication for tuberculosis, or refusal or failure to keep appointments for treatment of tuberculosis, or refusal or failure to complete treatment for tuberculosis, or disregard for contagion precautions for tuberculosis. New York, N.Y., 24RCNY Health Code § 11.21 (2009).
• Hospitalization, placement, and residential isolation
  • 1) Subject to the provisions of subsections 2) and 3), the department may petition the circuit court to order a person who has active tuberculosis to be hospitalized, placed in another health care facility or residential facility, or isolated from the general public in the home as a result of the probable spread of tuberculosis, until such time as the risk of infection to the general public can be eliminated or reduced in such a manner that a threat to the public health no longer exists.
  • 2) A person may not be ordered to be hospitalized, placed in another health care facility or residential facility, or isolated from the general public in the home, except upon the order of a circuit court and upon proof:
    • By the department, by clear and convincing evidence, that a threat to the public health is posed by the person who has active tuberculosis;
    • That the person who has active tuberculosis has been counseled about the disease, the threat to the public health posed by tuberculosis, and methods to minimize the risk to the public, and, despite such counseling, indicates an intent by words or action to expose the public to active tuberculosis; and
    • That all other reasonable means of achieving compliance with treatment have been exhausted and no less restrictive alternative exists.
  • 3) A person may not be ordered by a circuit court to be hospitalized, placed in another health care facility or residential facility, or isolated from the general public in the home, unless:
    • A hearing has been held, with respect to which the person has received at least 72 hours’ prior written notification and has received a list of the proposed actions to be taken and the reasons for each such action. However, with the consent of the person or the person’s counsel, a hearing may be held within less than 72 hours;
    • The person has the right to attend the hearing, to cross-examine witnesses, and present evidence. After review and consultation by the court, counsel for the person may waive the client’s presence or allow the client to appear by television monitor where available; and
    • The court advises the person of the right to have counsel present. If the person is insolvent and unable to employ counsel, the court shall appoint legal counsel for the person pursuant to the indigence criteria in [determination of indigence law].
  • 4) An order requiring the hospitalization, placement in a health care facility or residential facility, or isolation from public in the home must expire no later than 180 days after the date of the order or when the physician charged with the care of the person determines that the person no longer poses a threat to the public health, if the determination is made before the end of the 180-day period. Orders for hospitalization of a person or placement in a facility or isolation in the home may not be renewed unless the person is afforded all rights conferred in subsections 2) and 3). A hearing must be held within 14 days before the expiration of the 180-day period to determine the necessity for the person’s continued hospitalization or necessary care and treatment to cure after release. The person’s records from the inception of the disease are admissible evidence in the hearing.
  • 5) If the department petitions the circuit court to order that a person who has active tuberculosis be hospitalized in a facility operated under [statutory provision on hospitalization and placement programs], the department shall notify the facility of the potential court order.
  • 6) The circuit court, legal counsel, and local law enforcement officials, as appropriate, shall consult with the department concerning any necessary infection control procedures to be taken during any court hearing or detention. Fla. Stat. Ann. § 392.56 (LexisNexis 2009).
• Tuberculosis
  • 1) The department or a local health officer may petition any court for a hearing to determine whether an individual with infectious or suspect tuberculosis should be confined for longer than 72 hours in a facility where proper care and treatment will be provided and spread of the disease will be prevented. The department or local health officer shall include in the petition documentation that demonstrates all of the following:
    • That the individual named in the petition has infectious tuberculosis; that the individual has noninfectious tuberculosis but is at high risk of developing infectious tuberculosis; or that the individual has suspect tuberculosis.
    • That the individual has failed to comply with the prescribed treatment regimen or with any rules promulgated by the department under [statutory provision authorizing the department to promulgate rules to control TB]; or that the disease is resistant to the medication prescribed to the individual.
    • That all other reasonable means of achieving voluntary compliance with treatment have been exhausted and no less restrictive alternative exists; or that no other medication to treat the resistant disease is available.
    • That the individual poses an imminent and substantial threat to himself or herself or to the public health.
  • 2) The department or local health officer shall give the individual written notice of a hearing at least 48 hours before a scheduled hearing is to be held. Notice of the hearing shall include all of the following information:
    • The date, time and place of the hearing.
    • The grounds, and underlying facts, upon which confinement of the individual is being sought.
    • An explanation of the individuals rights specified under par. [4]
    • The proposed actions to be taken and the reasons for each action.
  • 3) If the court orders confinement of an individual under this subsection, the individual shall remain confined until the department or local health officer, with the concurrence of a treating physician or advanced practice nurse prescriber, determines that treatment is complete or that the individual is no longer a substantial threat to himself or herself or to the public health. If the individual is to be confined for more than 6 months, the court shall review the confinement every 6 months.
  • 4) An individual who is the subject of a petition for a hearing under this subsection has the right to appear at the hearing, the right to present evidence and cross-examine witnesses and the right to be represented by adversary counsel. At the time of the filing of the petition the court shall assure that the individual who is the subject of the petition is represented by adversary counsel. If the individual claims or appears to be indigent, the court shall refer the individual to the authority for [indigence] determinations specified under [determination of indigence law]. If the individual is a child, the court shall refer that child to the state public defender who shall appoint counsel for the child without a determination of [indigence], as provided in [right to counsel law]. Unless good cause is shown, a hearing under this subsection may be conducted by telephone or live audiovisual means, if available. [NOTE: “indigency” was replaced with “indigence,” and the legal citation was retained].
  • 5) An order issued by the court under this subsection may be appealed as a matter of right. An appeal shall be heard within 30 days after the appeal is filed. An appeal does not stay the order. Wis. Stat. Ann. § 252.07 (LexisNexis 2009).

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2. Length of Confinement/Discharge

Descriptive Note: The provisions in this section are examples of different approaches to length of confinement. The final bullet is reported to be effective in Louisiana in ensuring a cure for patients who are discharged or released from confinement prior to completion of treatment.

• A person who is detained solely for the reasons described in [statutory provision stating the following: 1) the person has infectious tuberculosis disease, or who presents a substantial likelihood of having infectious tuberculosis disease, based upon proven epidemiologic evidence, clinical evidence, X-ray readings, or tuberculosis laboratory test results; and 2) the local health officer finds, based on recognized infection control principles, that there is a substantial likelihood the person may transmit tuberculosis to others because of his or her inadequate separation from others] shall not continue to be detained after he or she ceases to be infectious or after the local health officer ascertains that changed circumstances exist that permit him or her to be adequately separated from others so as to prevent transmission of tuberculosis disease after his or her release from detention. Cal [Health & Safety] Code § 121368 (Deering 2009).
• A person who is detained for the reasons described in [statutory provision stating the following: 1) the person has active tuberculosis disease, or has been reported to the health officer as having active tuberculosis disease with no subsequent report to the health officer of the completion of an appropriate prescribed course of medication for tuberculosis disease; and 2) there is a substantial likelihood, based on the person’s past or present behavior, that he or she cannot be relied upon to participate in or complete an appropriate prescribed course of medication for tuberculosis disease and, if necessary, follow required infection control precautions for tuberculosis disease] shall not continue to be detained after he or she has completed an appropriate prescribed course of medication. Cal [Health & Safety] Code § 121368 (Deering 2009).
• An order requiring the hospitalization, placement in a health care facility or residential facility, or isolation from the public in the home must expire no later than 180 days after the date of the order or when the physician charged with the care of the person determines that the person no longer poses a threat to the public health, if the determination is made before the end of the 180-day period. Orders for hospitalization of a person or placement in a facility or isolation in the home may not be renewed unless the person is afforded all rights conferred in [statutory due process provisions]. A hearing must be held within 14 days before the expiration of the 180-day period to determine the necessity for the person’s continued hospitalization or necessary care and treatment to cure after release. The person’s records from the inception of the disease are admissible evidence in the hearing. Fla. Stat. Ann. § 392.56 (LexisNexis 2009).
• The director of the treatment facility, upon the recommendation of the state health officer or his designee, or the court may discharge the person. The director and the official making the recommendation shall not be legally responsible to any person for the subsequent acts or behavior of a person discharged in good faith and in accordance with the provisions of this Part.
  • A person who is committed to a treatment facility for active tuberculosis may be conditionally discharged for a period of up to one year by the director, upon the recommendation of the state health officer or his designee, or by a court of competent jurisdiction after a hearing. The person may be required to report for outpatient treatment as a condition of his release. The terms and conditions of the conditional discharge shall be specifically set forth in writing and signed by the person. A copy of the conditional discharge shall be given to the person and explained to him before he is discharged.
  • If the person is conditionally discharged by the director upon the recommendation of the state health officer or his designee, a copy of the conditional discharge shall be sent to the court which judicially committed him and to the person’s counsel of record. If the person is conditionally discharged by the court, a copy of the conditional discharge shall be sent to the director of the treatment facility to which the person has been committed, the state health officer or his designee, and the committed person’s counsel of record.
  • The director, upon the recommendation of the state health officer or his designee, or the court may extend the conditional discharge of a person for a period of up to two years and the person may be required to report for outpatient treatment as a condition of his release. The terms and conditions of the extension of the conditional discharge shall be specifically set forth in writing and signed by the person. A copy of the extension of the conditional discharge shall be given to the person and explained to him.
  • If a conditional discharge is extended by the director upon the recommendation of the state health officer or his designee, a copy of the extension shall be sent to the court which judicially committed the person and to the person’s counsel of record. If the conditional discharge is extended by the court, a copy of the extension shall be sent to the director, to the state health officer or his designee, and to the person’s counsel of record.
  • If a person does not comply with the terms and conditions of his conditional discharge, he shall be subject to any of the procedures for involuntary treatment, including but not limited to the issuance of an order for protective custody. A conditionally discharged person who is confined pursuant to any of these involuntary procedures shall have all rights of a person committed involuntarily, including the right to periodic reports and review and an annual hearing pursuant to the provisions of this Part. La. Rev. Stat. Ann. § 40:31.28 (2009).

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