1. New England States Progress Report on Summary of Statutes and Regulations of New England States Regarding the Involuntary Examination, Treatment and Isolation of Persons with Communicable TB March 19, 2009 Katharine Van Tassel Professor of Law

2. Definitions Quarantine Historical Definition: the detention of persons suspected of carrying an infectious disease. Modern Definition: the restriction of the activities of healthy persons who have been exposed to a communicable disease, during its period of communicability, to prevent disease transmission during the incubation period if infection should occur. Definition of Combined New England Statutes: create a hybrid. The temporary detention of persons suspected of, or having, an infectious disease; who appear to be unwilling, or unable, to undergo testing or prescribed treatment; and, who pose a threat to public

3. Definitions Quarantine Goal of quarantine for many New England States: Used to require testing, obtain assurances of future compliance with treatment or to protect public health during the time necessary to obtain a court order for long-term isolation

4. Definitions Isolation The separation, for the period of communicability, of known infected persons, in such places and under such conditions as to prevent or limit the transmission of the infectious disease.

5. U.S. Constitutional Due Process Protections Pre-confinement Measures: an order requesting voluntary adherence to a treatment plan may be issued if government knows, or has reason to know, that an individual endangers community through the potential transmission of TB the voluntary treatment plan must be based on best, currently available epidemiologic and medical evidence regardless of ability to pay

6. U.S. Constitutional Due Process Protections Pre-confinement Measures (cont.): an individual has a right to notice of consequences of failure to comply with voluntary treatment plan all communications must be made in culturally, linguistically and educationally appropriate manner to facilitate understanding of individual rights and responsibilities

7. U.S. Constitutional Due Process Protections At no point can the government force an individual to undergo treatment; the remedy is isolation until there is voluntary compliance with the treatment plan

8. U.S. Constitutional Due Process Protections Quarantine Temporary Detention the individual must meet definition of a non-adherent individual purpose of temporary detention is to determine if individual will comply with voluntary treatment or must be isolated must show substantial evidence that individual poses a significant danger through potential transmission of communicable TB or incubation of MDR-TB or XDR-TB

9. U.S. Constitutional Due Process Protections Quarantine Temporary Detention, cont. temporary detention is necessary to prevent significant harms to health or safety of another individual or community all less restrictive measures have been attempted, such as counseling if possible confinement should be in the home no forced medical treatment can not last longer than 72 hours (3 days) must be released if no longer has communicable TB, provides assurances will comply with voluntary case management or poses no significant risk

10. U.S. Constitutional Due Process Protections Isolation Long Term Detention (cont) Standard: clear and convincing evidence of immediate and substantial danger Petition must contain: sufficient information to provide notice factual evidence of non-compliance, legal grounds and factual basis that individual is appropriate for isolation, substantial evidence of danger assessment of other less restrictive alternatives

11. U.S. Constitutional Due Process Protections Isolation Long Term Detention, cont. Rights at hearing: hearing within 48 hours individual right to be present, physically or electronically right to counsel medical exam by an independent physician ability to submit evidence, call and cross examine witnesses, submit rebuttal proofs

12. U.S. Constitutional Due Process Protections Isolation Long Term Detention, cont. proceedings must be completed in a timely fashion and must be recorded court orders must be in writing and last only 180 days (6 months)or until there is voluntary compliance; need subsequent court order to extend right to timely appeal

13. U.S. Constitutional Due Process Protections Religious Objections Long Term Detention, cont. individuals can object to any part of this process based on interference with sincere religious objections if approved by a court, state must show compelling interest before imposing any measures

14. Massachusetts

15. Massachusetts Pre-confinement Measures Physician shall report within 24 hours actual or suspected cases of tuberculosis Testing no x-ray may be required to show the absence of TB freedom from TB may be shown by negative intradermal testing if TB positive, a physician opinion of TB negation based on an x-ray is required

16. Massachusetts Pre-confinement Measures Board of Health, or 2 physicians, may certify to the dph any person who: has active TB is unable or unwilling to accept proper medical treatment; and, is thereby a serious danger to public health

17. Massachusetts Quarantine: Temporary Confinement If a person is TB positive and refuses to obtain a physician opinion based on x-ray or to submit to x-ray, the dph: may petition the district court for hospitalization order, or order hospitalization at a tuberculosis treatment center for a 15 day observational period

18. Massachusetts Quarantine: Temporary Confinement Additional Reasons: Non-adherence: if a person becomes non-adherent after treatment is started and public health is immediately threatened The dph may order immediate hospitalization for 15 day observational period

19. Massachusetts Quarantine: Temporary Confinement Additional Reasons: Leaving hospital against medical advice if patient with active TB indicates the desire to leave hospital against medical advice and allowing release would create a serious danger to public health the patient may be detained or the police may be contacted to transport the patient immediately to a TB treatment center for involuntary confinement

20. Massachusetts Isolation: Long Term Confinement At the end of a 15 day observational period, a person must be released or the Department must file for a court order extending hospitalization If in a non-emergency situation: court shall appoint 2 physicians experienced in the diagnosis, care, and treatment of TB to examine the person and report to the court on his condition, willingness to accept treatment, and give their opinion on whether or not it would be a serious danger to the public health to allow the person to remain unhospitalized the court shall give notice to the person of his right to hearing

21. Massachusetts Isolation: Long Term Confinement If the person does not request a hearing, the judge may order commitment on the physicians findings If a hearing is requested, the court shall allow the person reasonable time to prepare his case, and he must be given notice of his right to have (court appointed if necessary) counsel, witnesses present, and be present himself either in court, or through counsel if he cannot be present because of his condition If the judge finds the person is unable or unwilling to accept treatment, he may be ordered to a TB treatment center The statute does not provide for a standard of proof

22. Massachusetts Isolation: Long Term Confinement If the petition is filed after refusal for examination or emergency commitment 15 day observational period: the judge shall give the person notice of his right to hearing if no hearing is requested, the judge may order commitment on the basis of the petition if a hearing is requested, it shall be granted in compliance with the above paragraph

23. Massachusetts Isolation: Long Term Confinement if, after the hearing, the patient is unwilling to accept treatment, the court shall commit the individual to a TB treatment center the person may file for an order of release, but if denied, must wait at least 6 months to file again

24. Connecticut

25. Connecticut Pre-confinement Measures Physician shall report within 24 hours a person under his care who he knows, or suspects, to have TB If the dph determines that public health is substantially and imminently endangered, a warning may be issued to have a physicians examination to complete an appropriate course of medication to follow a course of directly observed therapy

26. Connecticut Pre-confinement Measures A warning must state: the factual basis for the dphs judgment that the person has active (or is suspected of having active) tuberculosis education and counseling efforts have been made the least restrictive means necessary time period the order is to remain in effect

27. Connecticut Pre-confinement Measures All warnings shall be in writing in a language the person understands, must inform the person of his right, and be hand delivered For a person subject to a warning for physical examination, the Director may make application to the Probate Court for an enforcement order. The person hall have the right to a court hearing within 3 business days

28. Connecticut Pre-confinement Measures The hearing shall determine: if the person has active tuberculosis, or is suspected of having active tuberculosis if the person is unable or unwilling to be examined voluntarily if efforts have been made to educate the person about the need for examination whether the court order is necessary and the least restrictive alternative to protect public health

29. Connecticut Pre-confinement Measures The hearing shall determine: if the person has active tuberculosis, or is suspected of having active tuberculosis if the person is unable or unwilling to be examined voluntarily if efforts have been made to educate the person about the need for examination whether the court order is necessary and the least restrictive alternative to protect public health No section shall be construed to require forcible administration of medication can be treated per religious tenets during quarantine or isolation

30. Connecticut Quarantine: Temporary Confinement If the dph determines that public health is substantially and imminently endangered, dph may issue an emergency commitment order the order shall extend for no more than 96 hours dph must immediately petition the Probate Court to determine whether the commitment shall continue

31. Connecticut Quarantine: Temporary Confinement An order must state: the factual basis for the dphs judgment that the person has active (or is suspected of having active) TB the efforts that have been made to educate and counsel the person that this is the least restrictive means necessary the time period the order is to remain in effect All orders shall be in writing in a language the person understands, must inform him of his rights, and be hand delivered

32. Connecticut Quarantine: Temporary Confinement A person may at anytime move to terminate an order, in which case a hearing shall be held within 5 business days Any person aggrieved by an order may make an appeal to the Superior Court Confinement may not be in prison No section shall be construed to require forcible administration of medication can be treated per religious tenets during quarantine or isolation

33. Connecticut Isolation: Long Term Confinement Immediately upon issuing an emergency commitment order the director must petition for a judicial commitment order a hearing must be held within 96 hours or within 3 business days notice of hearing must be provided

34. Connecticut Isolation: Long Term Confinement the burden of proof is on the Director by a standard of clear and convincing evidence to show: the person has active tuberculosis assessment of alternative least restrictive means the person is unable or unwilling to adhere to an appropriate prescribed course of treatment the person is infectious or presents a substantial likelihood of being infectious the person poses a substantial and imminent likelihood of transmitting tuberculosis to others

35. Connecticut Isolation: Long Term Confinement A person may at anytime move to terminate an order, in which case a hearing shall be held within 5 business days The court, on its own motion, shall review any order of commitment every 6 months Any person aggrieved by an order may take appeal to the Superior Court No section shall be construed to require forcible administration of medication can be treated per religious tenets during quarantine or isolation

36. Vermont

37. Vermont Pre-confinement A hcp must report to the dph any person who he has reason to believe has a reportable disease within 24 hours A physician must report a person who has consulted him who is infected with TB within one week, or if the person is indigent immediately after the examination When dph has reasonable cause to believe a person has communicable TB, he may request the person be examined in a form dictated by the dph If a person refuses to be examined, the dph may petition the court requiring examination If the court finds reasonable cause, it may order the examination

38. Vermont Quarantine: Temporary Detention A physician who knows or suspects a person has a communicable disease dangerous to public health shall immediately quarantine the person shall report to the dph the place where the case exists If the physician is unable to make a specific diagnosis he may quarantine the premises temporarily until a specific diagnosis is made The quarantine shall continue until the health officer examines the person and quarantines as provided by statute

39. Vermont Isolation: Long-term Detention When dph determines from (court ordered) examination that: the person has active TB in communicable form and the person is a health hazard to the public …a request may be made to the court to order the person to be treated in a hospital or other suitable place for appropriate medical treatment until dph determines treatment is no longer necessary

40. Vermont Isolation: Long-term Detention If a person believes he is entitled to discharge and the discharge is refused by the dph, the person is entitled to a physical examination by a qualified physician of his own choice If the physician concurs with the person, but the dph still refuses, the person may appeal to the court issuing the original order which shall make a finding as it considers proper The order of the court may be appealed to the Supreme Court A person may not petition for release within 6 months from the date a court order is made

41. Vermont Special Provisions A person who is not a public health hazard per the dph may be treated by an accredited practitioner by prayer or spiritual means alone in accordance with the tenets and practices of a well- recognized church or religious denomination