Menu of Suggested Provisions For State Tuberculosis Prevention and Control Laws
VI. Protection of Individual Rights
Descriptive Note: 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. Due process has both substantive and procedural components. “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. The disease control measures described above – examination, isolation, confinement, treatment, etc. – potentially implicate liberty interests protected by the due process clause. Due process is incorporated into many state laws relating to TB prevention and control, including those in this Menu, and states therefore may not have “separate” provisions addressing due process. This section contains examples of existing laws that address due process. The first bullet is a good example of substantive due process because the justification and due process measures that must be taken increase with the level of restriction – in this case, detention. The provision also accounts for procedural due process, with specific requirements on what must be provided in the notice to the patient, and hearing requirements. The second provision below is a concise summary of procedural due process requirements concerning hearings conducted pursuant to the state’s TB control regulations. See Appendix A for more on due process as it relates to TB prevention and control.
- An order of the health officer pursuant to [regulation authorizing administrative order for disease control measures] shall set forth:
- The legal authority under which the order is issued, including the particular sections of this Article or other law or regulation;
- An individualized assessment of the person’s circumstances and/or behavior constituting the basis for the issuance of such orders;
- The less restrictive treatment alternatives that were attempted and were unsuccessful and/or the less restrictive treatment alternatives that were considered and rejected, and the reasons such alternatives were rejected.
In addition, an order for the removal and detention of a person shall:
- Include the purpose of the detention;
- Advise the person being detained that he or she has the right to request release from detention by contacting a person designated on the health officer’s order at a telephone number stated on such order, and that the detention shall not continue for more than five (5) business days after such request in the absence of a court order authorizing such detention;
- Advise the person being detained that, whether or not he or she requests release from detention, the health officer must obtain a court order authorizing detention within sixty (60) days following the commencement of detention and thereafter must further seek court review of the detention within ninety (90) days of such court order and within ninety (90) days of each subsequent court review;
- Advise the person being detained that he or she has the right to arrange to be represented by counsel or to have counsel provided, and that if he or she chooses to have counsel provided, that such counsel will be notified that the person has requested legal representation;
- Be accompanied by a separate notice which shall include but not be limited to the following additional information: 1) that the person being detained has the right to request release from detention by contacting a person designated on the health officer’s order at a telephone number stated on such order, and that the detention shall not continue for more than five (5) business days after such request in the absence of a court order authorizing such detention; 2) that he or she has the right to arrange to be advised and represented by counsel or to have counsel provided, and that if he or she chooses to have counsel provided, that such counsel will be notified that the person has requested legal representation; and 3) that he or she may supply the addresses and/or telephone numbers of friends and/or relatives to receive notification of the person’s detention, and that the Department shall, at the patient’s request, provide notice to a reasonable number of such people that the person is being detained. New York, N.Y., 24RCNY Health Code § 11.21 (2009).
- At any hearing conducted pursuant to [TB control regulations], a person shall have the following due process rights:
- Written notice detailing the grounds and underlying facts of the matter;
- The right to have counsel present at the hearing and, if indigent, the right to appointed counsel; and
- The right to be present at a court hearing, to cross examine, and to present witnesses, which rights may be exercised through telecommunication technology. N.J. Admin. Code § 8:57-5.15 (2009).
Descriptive Note: In addition to federal and state constitutional provisions and case law interpreting the First Amendment’s free exercise clause, some states have enacted statutory religious exemptions to treatment, examination, or both to protect the religious interests of patients with TB. The statutory religious exemptions below allow patients with TB who rely on spiritual means or prayer for healing to do so while protecting the public’s health because the patient is required to adhere to isolation. In practice, the burden is generally on the patient to demonstrate good faith belief in his/her particular religion, and the health department may require documentation in support of that belief.
- Any person who depends exclusively on prayer for healing in accordance with the teachings of any well-recognized religious sect, denomination, or organization, and claims exemptions on such grounds, shall nevertheless be subject to examination, and the provisions of [state TB control statutory provisions] regarding compulsory reporting of communicable diseases and isolations shall apply where there is probable cause to suspect that such person has active tuberculosis. Such person shall not be required to submit to any medical treatment or to go to or be confined in a hospital or other medical institution if the person can safely be isolated in the person’s own home or other suitable place of the person’s choice. Colo. Rev. Stat. § 25-4-506 (2009).
- The [health official] or a health officer may not require an individual to have a physical examination, other than a chest X ray and to render sputum samples. The [health official] or a health officer may not restrict the right of the individual to select a treatment method, if the individual: (1) In good faith relies on spiritual means through prayer for healing; and (2) Complies with the laws, rules, and regulations that relate to sanitation for and isolation of infectious, contagious, and communicable diseases. Md. Code Ann., Health-Gen. § 18-324 (LexisNexis 2009).
- A [person who has or who based upon reasonable grounds is suspected of having active tuberculosis] is not required to undergo treatment under this article if that person depends exclusively on prayer or spiritual means for healing in accordance with the tenets and practices of a recognized church or religious denomination and claims an exemption on that ground. The requirements of this article regarding compulsory reporting of tuberculosis disease, exclusion from employment or school, monitoring, examination, and isolation apply if there is clear and convincing evidence that the person is a [person who has or who based upon reasonable grounds is suspected of having active tuberculosis] and is a substantial danger to another person or the community. Ariz. Rev. Stat. § 36-734 (LexisNexis 2009).
Descriptive Note: Public health authorities that are also covered entities under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (Public Law 104-191) must comply with the requirements of the Privacy Rule, but HIPAA does not apply to all situations that TB programs and their legal counsel may face concerning patient confidentiality. The provisions in this section are examples of laws that some states have enacted or promulgated to address confidentiality, from use of a pseudonym to allowing patient information to be used for research purposes.
- Except as otherwise provided by law, all records kept by the department and by local public health agencies and all records retained in a county coroner’s office in accordance with [regulation concerning retention of death certificate in county coroner’s office], as a result of the investigation of tuberculosis shall be kept strictly confidential and shall only be shared to the extent necessary for the investigation, treatment, control, and prevention of tuberculosis; except that every effort shall be made to limit disclosure of personal identifying information to the minimal amount necessary to accomplish the public health purpose. Colo. Rev. Stat. § 25-4-511 (2009).
- When requesting an order from a circuit court under the provisions of [state TB control provisions], the department shall substitute a pseudonym for the true name of the person to whom the order pertains. The actual name of the person shall be revealed to the court only in camera, and the court shall seal such name from further revelation. All court decisions, orders, petitions, and other formal documents shall be styled in a manner to protect the name of the person from public disclosure. The department, its authorized representatives, the court, and other parties to the lawsuit shall not reveal the name of any person subject to these proceedings except as permitted in [state confidentiality provision]. Such information is exempt from [state public records provision]. Fla. Stat. Ann. § 392.545 (LexisNexis 2009).
- Patient medical information or information concerning reportable events pursuant to any section of this subchapter shall not be disclosed except under the following circumstances:
- For research purposes, provided that the study is reviewed and approved by the applicable Institutional Review Board, and is done in a manner that does not identify any person, either by name or other identifying data element;
- With written consent of the person identified;
- When the [public health official], or his or her designee, determines that such disclosure is necessary to enforce public health laws or to protect the life or health of a named party, in accordance with applicable State and Federal laws; or
- Pursuant to a valid court order. N.J. Admin. Code § 8:57-5.17 (2009).
- Information regarding communicable or reportable disease confidential – Exceptions
- 1) Information collected pursuant to this chapter in the possession of the department or local health departments relating to an individual who has or is suspected of having a disease designated by the department as a communicable or reportable disease under this chapter shall be held by the department and local health departments as strictly confidential. The department and local health departments may not release or make public that information upon subpoena, search warrant, discovery proceedings, or otherwise, except as provided by this section.
- 2) The information described in Subsection 1) may be released by the department or local health departments only in accordance with the requirements of this chapter and as follows:
- Specific medical or epidemiological information may be released with the written consent of the individual identified in that information or, if that individual is deceased, his next-of-kin;
- Specific medical or epidemiological information may be released to medical personnel or peace officers in a medical emergency, as determined by the department in accordance with guidelines it has established, only to the extent necessary to protect the health or life of the individual identified in the information, or of the attending medical personnel or law enforcement or public safety officers;
- Specific medical or epidemiological information may be released to authorized personnel within the department, local health departments, official health agencies in other states, the United States Public Health Service, the Centers for Disease Control and Prevention (CDC), or when necessary to continue patient services or to undertake public health efforts to interrupt the transmission of disease;
- If the individual identified in the information is under the age of 18, the information may be released to the Division of Child and Family Services within the Department of Human Services in accordance with [state law]. If that information is required in a court proceeding involving child abuse or sexual abuse under [state law], the information shall be disclosed in camera and sealed by the court upon conclusion of the proceedings;
- Specific medical or epidemiological information may be released to authorized personnel in the department or in local health departments, and to the courts, to carry out the provisions of this title, and rules adopted by the department in accordance with this title;
- Specific medical or epidemiological information may be released to blood banks, organ and tissue banks, and similar institutions for the purpose of identifying individuals with communicable diseases. The department may, by rule, designate the diseases about which information may be disclosed under this subsection, and may choose to release the name of an infected individual to those organizations without disclosing the specific disease;
- Specific medical or epidemiological information may be released in such a way that no individual is identifiable;
- Specific medical or epidemiological information may be released to a “health care provider” as defined [under state law], health care personnel, and public health personnel who have a legitimate need to have access to the information in order to assist the patient, or to protect the health of others closely associated with the patient. This subsection does not create a duty to warn third parties, but is intended only to aid health care providers in their treatment and containment of infectious disease; and
- Specific medical or epidemiological information regarding a health care provider, as defined [under state law], may be released to the department, the appropriate local health department, and the Division of Occupational and Professional Licensing within the Department of Commerce, if the identified health care provider is endangering the safety or life of any individual by his continued practice of health care. Utah Code Ann. § 26-6-27 (LexisNexis 2009).
- In the event a [person with tuberculosis who] poses a health threat to others uses interstate or international flight to avoid treatment and/or isolation in [State], such individual shall be deemed to have waived confidentiality as to his health status, and [State] health authorities can contact health authorities in the jurisdiction to which the individual fled regarding the health threat presented by the [person with tuberculosis]. Tenn. Comp. R. & Regs. 1200-14-4-.03 (2009).