PA 95-138-sHB 6982
Public Health Committee
Judiciary Committee
Planning and Development Committee
AN ACT CONCERNING TUBERCULOSIS-SPECIFIC CONTROL MEASURES
SUMMARY: This act requires health care providers responsible for treating a person with active
tuberculosis to work with him to develop an individual treatment plan, which must approved by the
local health director. If the provider and local health director disagree, the Department of Public
Health and Addiction Services (DPHAS) must approve. The DPHAS commissioner may adopt
regulations related to this requirement.
The act authorizes a local health director to take a number of actions reasonably necessary to
protect the public health when he determines that it is substantially and imminently endangered by
a person with or suspected of having active tuberculosis. He can (1) issue a warning that the person
should have a physician's examination when the individual cannot or will not voluntarily submit to
the examination, (2) issue a warning stating that the person should complete a prescribed cause of
treatment when the individual cannot or will not follow the course of treatment, (3) issue a warning
stating that the person should follow a course of directly observed therapy when he has not followed
treatment, (4) issue an emergency commitment order of up to 96 hours authorizing detaining the
person in a hospital or other medical setting, and (5) petition the probate court for a judicial
commitment order authorizing placing or detaining the individual in a hospital or other setting to
complete prescribed treatment.
The act defines a number of terms, establishes the substantive and procedural requirements for
issuing warnings and orders and petitioning the court for orders, allows local health directors to
apply to probate court for enforcement orders, specifies that the local health director has the burden
of proof in such proceedings and how that is met, requires that health directors' emergency
commitment orders and warnings be in understandable language, and makes health directors'
orders and other related information confidential.
EFFECTIVE DATE: October 1, 1995
FURTHER EXPLANATION
Active Tuberculosis
The act defines "active tuberculosis" as when (1) a specimen taken from a pulmonary, laryngeal,
or other airway source has tested positive for tuberculosis and the person has not subsequently
completed a standard recommended course of medication or (2) a specimen from an extra-pulmonary
source has tested positive for tuberculosis, there is clinical evidence or clinical suspicion of
pulmonary tuberculosis, and the person has not completed the recommended source of medication.
Active tuberculosis also occurs in cases where sputum (material spat out of the mouth), smears,
or cultures are unobtainable, but the radiographic evidence, in addition to current clinical or
laboratory evidence, is sufficient to establish a medical diagnosis of pulmonary tuberculosis (for
which treatment is indicated and a subsequent course of therapy has not been completed).
Infectious Tuberculosis
The act defines "infectious tuberculosis" as tuberculosis disease in a communicable or infectious
state as determined by chest radiograph, bacteriologic examination of body tissue, or secretions or
other diagnostic procedures. A person is considered infectious until sputum smears from a
pulmonary, laryngeal, or other airway source collected on three consecutive days have tested
negative for tuberculosis and the person shows clinical improvement, such as resolution of cough or
fever.
Plan of Treatment for Active Tuberculosis
The act requires the health care provider responsible for treating a person with active
tuberculosis to develop an individual plan of treatment geared towards the person's medical and
personal needs. The plan must identify methods for effective treatment and prevention of
transmission. The health care provider must have the assistance and acknowledgement of the
person and the approval of the local health director of the town in which the individual resides. If
the provider and local health director disagree, the DPHAS commissioner must approve.
The act requires the health director to assist the person to complete his course of treatment,
including providing such enablers and incentives as he can and that are reasonably appropriate.
"Enablers" refers to anything that helps the patient to more readily complete therapy, including
assistance with transportation. "Incentives" refers to anything that motivates the patient to adhere
to treatment, such as food or coupons. If the individual is hospitalized or in state custody, the health
director must be notified and the individualized treatment plan approved before discharge. But the
discharge must not be delayed more than 24 hours, excluding weekends, solely because of delay in
getting this approval.
Actions to Protect the Public Health
Under the act, if a health director determines that the public health is substantially and
imminently endangered by a person with or suspected of having active tuberculosis, he can take a
number of actions reasonably necessary to protect the public health.
Issuance of Warnings. The health director can issue a warning stating that the person should (1)
have a physician's tuberculosis examination when he cannot or will not voluntarily submit to an
examination despite demonstrated efforts to educate and counsel him about the need for one; (2)
complete an appropriate prescribed course of medication for tuberculosis when he is unwilling or
unable to follow one despite educating and counseling him about the need to complete it and
providing him with reasonably appropriate enablers and incentives; or (3) follow a course of directly
observed therapy (a course of treatment in which the prescribed anti-tuberculosis medicine is
administered to or ingested by the person under direct observation, as specified by the local health
director), given in a way to minimize the time and financial burden on him given his circumstances,
when he has active tuberculosis, has not followed treatment, and is unwilling or unable to follow an
appropriate course of medication despite education and counseling him about completing treatment
and providing reasonably appropriate enablers and incentives.
Emergency Commitment Order. The local health director can issue an emergency commitment
order for up to 96 hours authorizing the removal to, or detention in, a hospital or other medically
appropriate setting. The person must (1) have infectious active tuberculosis or present a substantial
likelihood of having it based on epidemiological, clinical, and radiographic evidence and laboratory
results; (2) pose a substantial and imminent likelihood of transmitting it to others because of
inadequate separation from them, based on a physician's professional judgment using recognized
infectious control principles; (3) be unwilling or unable to behave so as not to expose others to an
infection risk despite the health director's educating and counseling him about avoiding exposing
others and required contagion precautions; (4) have experienced or demonstrated an unwillingness
to follow the prescribed treatment course despite being educated and counseled and offered enablers
and incentives; and (5) be one for whom emergency commitment is the least restrictive alternative
to protect the public health.
The act allows a health director, when issuing such an order, to direct a police officer or other
designated transportation personnel to immediately transport the individual. The police officer must
take the person into custody and isolate him as required by the health director. The health director
must notify the police officer or other personnel of any necessary infection control procedures.
Judicial Commitment Order. The health director can petition the probate court for a judicial
commitment order authorizing removal to or detention in a hospital or other medically appropriate
setting to facilitate completion of a prescribed course of treatment. The person must (1) have active
tuberculosis, (2) be unwilling or unable to follow the treatment course despite counseling and
education and provision of enablers and incentives, (3) have demonstrated a pattern of persistent
nonadherence to treatment, (4) be one for whom commitment to complete treatment is necessary to
prevent development of drug-resistant tuberculosis organisms, and (5) be one for whom commitment
is the least restrictive course of action available to protect the public health and for whom other less
restrictive alternatives have failed.
Warnings, Orders, and Petitions
Any warnings, orders, or petitions, as noted above, must be in writing and include (1) the name
of the person subject to the warning, order, or petition; (2) the factual basis for the health director's
judgment that the person has or is suspected of having active tuberculosis; (3) in the case of a
warning concerning examination, the efforts made to educate and counsel the person, the medical
and legal consequences of failing to agree to it, and the factual basis for the director's judgment that
the person cannot or will not submit voluntarily to the exam; (4) efforts made to educate and
counsel the person on completing the prescribed treatment and the medical and legal consequences
of failing to complete it, a description of the enablers and incentives offered or provided, and the
factual basis for the director's judgment that the person cannot or will not voluntarily follow
treatment; (5) in the case of an emergency commitment order, the factual basis for the director's
judgment that (a) the person is infectious or presents a substantial likelihood of being infected, (b)
he poses a substantial and imminent likelihood of transmitting tuberculosis, (c) he cannot or will not
behave so as not to expose others to infection, and (d) emergency commitment is the least restrictive
alternative; and (6) in the case of a petition for commitment, the factual basis for the director's
judgment that (a) the person has persistently not followed treatment, (b) commitment for treatment
is necessary to prevent development of drug-resistant tuberculosis organisms, and (c) commitment is
the least restrictive alternative and other alternatives have failed.
Time Periods
A warning or order must specify the time period it remains in effect. But any order authorizing
examination for tuberculosis must not continue beyond the minimum period required, exercising due
diligence, to make a medical determination of whether the person with active tuberculosis is
infectious or whether the person suspected of having tuberculosis has active tuberculosis.
A warning concerning treatment or directly observed therapy must not continue beyond the end
of the prescribed treatment course. An order authorizing emergency commitment must not exceed 96
hours.
Place of Confinement
An order or petition for commitment must specify the place of confinement, which must be in a
DPHAS-approved facility. It cannot be a prison, jail, or other enclosure where people are
incarcerated unless the person who is the subject of the order is being held on a criminal charge.
The health director must notify DPHAS within 24 hours of the order or issuance of the petition.
Enforcement Orders
The health director may apply to probate court for an enforcement order concerning a person
issued a warning to have an examination for active tuberculosis. The person has the right to a court
hearing, which must be held within three business days of receipt of the application. The hearing
must determine (1) if the person has or is suspected of having active tuberculosis, (2) if the person is
unable or unwilling to be examined voluntarily, (3) if attempts have been made to educate the
person about an exam, and (4) whether the order is necessary and the least restrictive alternative
for protecting the public health.
The probate court can issue a warrant for a person who is the subject of an order for an
examination. A police officer for the town in which the court is located, or the state police or other
officer as determined by the court if the town has no police, must bring him to the facility for the
exam.
Emergency Commitment and Continuing Commitment
Immediately upon issuing an emergency commitment order, the health director must petition the
probate court to determine whether to continue commitment. The probate court administrator must
approve a three-judge court to hold the hearing. One of the judges must be a Connecticut-licensed
attorney. Also, the probate judge having jurisdiction of the matter must be a member, although the
judge may disqualify himself. In such a case, all three members are appointed by the administrator.
An order for involuntary commitment requires at least two votes of the three-judge panel. The
judges must designate a chief judge. All records of a case before the three-judge court must be kept
by the probate court having jurisdiction as if the three-judge court were not appointed.
The hearing must be held within 96 hours of issuance of the emergency commitment order.
Advance notice must be given to the person who is the subject of the order and to any other person
the court may direct. The court must determine (1) if the person has active tuberculosis that is
infectious or presents a substantial likelihood of being infectious based on epidemiology, clinical, or
radiographic evidence and laboratory test results; (2) if the person poses a substantial and imminent
likelihood of transmitting tuberculosis because of inadequate separation from others, based on a
physician's professional judgment, using recognized infection control principles; (3) if the person
cannot or will not behave so as not to expose others to an infection risk; (4) if efforts have been
made to educate and counsel the person about not exposing others and required contagion
precautions; (5) if the person shows an unwillingness to follow prescribed treatment; (6) if efforts
have been made to educate and counsel him about completing treatment, and reasonably
appropriate enablers and incentives have been offered; and (7) whether the order is necessary and
the least restrictive alternative.
Petition for Commitment Order
A health director's petition for a judicial commitment authorizing removal to or detention in a
health care facility to complete treatment must be heard by the probate court within three business
days of its receipt. The probate court administrator must appoint a three-judge court to conduct
the hearing in the same manner and under the same procedures as described above.
The hearing must determine (1) if the person has active tuberculosis, (2) if he cannot or will not
follow treatment, (3) if efforts have been made to educate and counsel him about completing
treatment, (4) if reasonably appropriate enablers and incentives have been provided, (5) if he has
demonstrated a pattern of persistent nonadherence to treatment, (6) if commitment to complete
treatment is necessary to prevent development of drug resistant tuberculosis organisms, and (7)
whether the order is necessary and the least restrictive alternative in that other less restrictive
alternatives have failed.
The probate court can issue a warrant for the person subject to the commitment order with police
involvement as prescribed above.
Hearing Requirements; Right to Counsel
All health director orders and petitions for hearings must be hand-delivered to the person subject
to them as quickly as reasonably possible. They must inform him that (1) he or his representative
has a right to be present at the hearing; (2) he has a right to counsel and if unable to afford one,
counsel will be appointed; (3) the court has the right to appoint and hear additional expert witness
at the petitioner's expense; (4) he has a right to be present and cross-examine witnesses; (5)
proceedings must be recorded and will be transcribed if he appeals or files a writ of habeas corpus;
(6) the proceedings are confidential and cannot be disclosed unless he or his legal representative
requests it, or the probate court orders it for good cause shown; (7) he can appeal the probate court's
order to Superior Court; and (8) he can apply to probate court to terminate or modify an order it has
made.
If the court finds the person is indigent or otherwise unable to pay for or obtain counsel, the
court appoints counsel. The person can refuse counsel if the court finds that he understands the
consequences of this refusal. If the person does not choose his own counsel, or if counsel selected
refuses or is unable to represent him, the court must appoint counsel from a panel of attorneys
provided by the administrator. Reasonable compensation of appointed counsel is paid for from the
Probate Court Administration Fund.
Medical Records
Prior to a hearing, the person or his counsel must be given access to all of his medical records,
including hospital records. If hospitalized, the hospital must provide him or his counsel access to
all records it has concerning his condition. The act specifies that nothing prevents timely objection
to the admissibility of evidence according to rules of civil procedure.
Burden of Proof
At a hearing, the health director has the burden of showing, by clear and convincing evidence,
that (1) the person has active tuberculosis, or in the case of an examination order, is suspected of
having active tuberculosis; (2) in the case of an enforcement order for examination, efforts have been
made to educate and counsel him, but the person cannot or will not voluntarily submit; (3) in the
case of an emergency commitment order or a petition for a commitment order, efforts have been
made to educate and counsel him about completing treatment, enablers and incentives have been
offered, and the person cannot or will not voluntarily follow treatment; (4) in the case of
continuation of an emergency commitment order, the person is infectious or presents a substantial
likelihood of it, poses a substantial and imminent likelihood of transmitting it to others, is unable or
unwilling to behave so not to expose others, and commitment is the least restrictive alternative
available; (5) in the case of a petition for commitment, the person has persistently not followed
treatment, commitment to treat active tuberculosis is necessary to prevent development of
drug-resistant tuberculosis organisms, and commitment is the least restrictive alternative in that
other alternatives have failed; and (6) the order sought by the health director is necessary and the
least restrictive alternative.
If the court finds by clear and convincing evidence that the health director has met his burden of
proof, it must (1) in the case of examination orders, order the person's examination, or enter an
order with terms and conditions it deems appropriate to protect the public health in a way least
restrictive of his liberty and privacy; (2) in the case of continuing an emergency commitment, enter
an order authorizing continued commitment only for as long as the person is infectious and poses a
transmission risk to others, or enter an order with terms and conditions appropriate to protect the
public health and least restrictive to his liberty and privacy; (3) in the case of a petition for a
commitment order, order the continued commitment for only as long as necessary to complete
treatment or demonstrate adherence for treatment, or enter an order with terms and conditions
under guidelines as described above.
If the court finds that the health director did not meet the burden of proof, it cannot enter any
orders and, if the person is subject to an emergency commitment, it must order his release.
Terminate or Modify an Order
A person may move, at any time, for the court to terminate or modify an order. A hearing must
be held within five business days of the motion. Also, the court on its own motion, must review, at
least every six months, any commitment order issued to determine if the conditions that required
the person's commitment or restrictions still exist. If the court finds that such conditions no longer
exist, it must dissolve the order. At such a hearing, the health director has the burden of proof.
Appeal to Superior Court
Any person aggrieved by a probate court's order may appeal to Superior Court. The probate court
must record the hearings, which must be transcribed only if there is an appeal or an application of a
writ of habeas corpus. A copy of the transcript must be given free of charge to the appellant or writ
applicant if the probate court finds him unable to pay. In that case, the cost is paid by the original
petitioner.
Medication
The act provides that it must not be interpreted to permit or require the forcible administration
of any medicine.
Confidentiality
Under the act, all health directors' orders, applications, or petitions for hearings, notices of a
hearing, and hearing proceedings must be kept confidential and not disclosed, except to the parties
to the proceedings. They can also be disclosed to the person involved or his legal representative, or
upon order of the probate court for good cause.
Plain Language
All health directors' emergency commitment orders and warnings must be in a language that the
person can comprehend.