BILL NUMBER: AB 804 CHAPTERED 09/21/94 BILL TEXT CHAPTER 685 FILED WITH SECRETARY OF STATE SEPTEMBER 21, 1994 APPROVED BY GOVERNOR SEPTEMBER 20, 1994 PASSED THE ASSEMBLY AUGUST 26, 1994 PASSED THE SENATE AUGUST 23, 1994 AMENDED IN SENATE AUGUST 9, 1994 AMENDED IN SENATE JUNE 30, 1994 AMENDED IN ASSEMBLY MAY 6, 1993 AMENDED IN ASSEMBLY APRIL 22, 1993 INTRODUCED BY Assembly Member Gotch FEBRUARY 25, 1993 An act to amend Sections 3003, 3006, 3281, 3282, 3283, 3284, 3285, 3285.1, 3285.2, 3285.3, 3285.4, and 3351 of the Health and Safety Code, relating to communicable disease. LEGISLATIVE COUNSEL'S DIGEST AB 804, Gotch. Communicable disease: tuberculosis. Existing law requires the State Department of Health Services to maintain a program for the control of tuberculosis and administer the funds made available to it by the state for the care of tuberculosis patients. Existing law, with certain exceptions, prohibits discharge or release of persons from certain facilities if the person is known to have tuberculosis, or if there are reasonable grounds to believe the person has tuberculosis, unless certain procedures are followed, including providing a notice and report to the local health officer. This bill would clarify that local health officers may delegate duties and authority relating to the issuance of related orders, and would make conforming and other technical changes. The bill would require review of related treatment plans within 24 hours, and would thereby impose a state-mandated local program. Existing law requires that related delegations of authority by the local health officer be made pursuant to specified provisions of law relating to delegation of authority to a deputy. This bill would provide that delegation may also be made to the person in charge of medical treatment of inmates at penal institutions. The bill would specify that in cases of court enforcement of an order, confinement may be accomplished by placement in any appropriate facility, penal institution, or dwelling specifically approved by the local health officer. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement, including the creation of a State Mandates Claims Fund to pay the costs of mandates which do not exceed $1,000,000 statewide and other procedures for claims whose statewide costs exceed $1,000,000. This bill would provide that, if the Commission on State Mandates determines that this bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to those statutory procedures and, if the statewide cost does not exceed $1,000,000, shall be made from the State Mandates Claims Fund. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 3003 of the Health and Safety Code is amended to read: 3003. As used in this division, a person has "active tuberculosis disease" when either one of the following occur: (a) A smear or culture taken from any source in the person's body has tested positive for tuberculosis and the person has not completed the appropriate prescribed course of medication for active tuberculosis disease. (b) There is radiographic, current clinical, or laboratory evidence sufficient to support a medical diagnosis of tuberculosis for which treatment is indicated. SEC. 2. Section 3006 of the Health and Safety Code is amended to read: 3006. As used in this division the following terms have the following meanings, unless the context indicates otherwise: (a) "Infectious tuberculosis disease" means active or suspected active tuberculosis disease in an infectious state. (b) "Tuberculosis infection" means the latent phase of tuberculosis, during which the infected person cannot spread tuberculosis to others. (c) "Heightened risk of tuberculosis exposure" means likely exposure to persons with infectious tuberculosis disease. (d) "The appropriate prescribed course of medication for tuberculosis disease" means that course recommended by the health officer, the most recent guidelines of the department, the most recent guidelines of the Centers for Disease Control and Prevention, or the most recent guidelines of the American Thoracic Society. (e) "Directly observed therapy" means the appropriately prescribed course of treatment for tuberculosis disease in which the prescribed antituberculosis medications are administered to the person or taken by the person under direct observation of a health care provider or a designee of the health care provider approved by the local health officer. (f) An "examination" for tuberculosis infection or disease means conducting tests, including, but not limited to, Mantoux tuberculin skin tests, laboratory examination, and X-rays, as recommended by any of the following: (1) The local health officer. (2) The most recent guidelines of the state department. (3) The most recent guidelines of the Centers for Disease Control and Prevention. (4) The most recent guidelines of the American Thoracic Society. (g) "State correctional institution" means a prison, institution, or other facility under the jurisdiction of the Department of Corrections or the Department of the Youth Authority. (h) "Local detention facility" is defined in Section 6031.4 of the Penal Code. (i) "Penal institution" means either a state correctional institution or a local detention facility. (j) "Health facility" means a licensed health facility as defined in Sections 1250, 1250.2, and 1250.3. (k) "Health officer" or "local health officer" includes his or her designee. SEC. 3. Section 3281 of the Health and Safety Code is amended to read: 3281. (a) (1) A health facility, local detention facility, or state correctional institution shall not discharge or release any of the following persons unless subdivision (e) is complied with: (A) A person known to have active tuberculosis disease. (B) A person who the medical staff of the health facility or of the penal institution has reasonable grounds to believe has active tuberculosis disease. (2) In addition, persons specified in this subdivision may be discharged from a health facility only after a written treatment plan described in Section 3282 is approved by a local health officer of the jurisdiction in which the health facility is located. Treatment plans submitted for approval pursuant to this paragraph shall be reviewed by the local health officer within 24 hours of receipt of the plans. (3) The approval requirement of paragraph (2) shall not apply to any transfer to a general acute care hospital when the transfer is due to an immediate need for a higher level of care, nor to any transfer from any health facility to a correctional institution. Transfers or discharges described in this paragraph shall occur only after the notification and treatment plan required by Section 3282 have been received by the local health officer. (4) This subdivision shall not apply to transfers within the state correctional system or to interfacility transfers occurring within a local detention facility system. (b) No health facility shall transfer a person described in subparagraph (A) or (B) of paragraph (1) of subdivision (a) to another health facility unless subdivision (e) is complied with. This subdivision shall not apply to transfers within the state correctional system or to interfacility transfers occurring within a local detention facility system. (c) No state correctional institution or local detention facility shall transfer a person described in subparagraph (A) or (B) of paragraph (1) of subdivision (a) from a state to a local, or from a local to a state, penal institution unless notification and a written treatment plan are received by the chief medical officer of the penal institution receiving the person. (d) No local detention facility shall transfer a person described in subparagraph (A) or (B) of paragraph (1) of subdivision (a) to a local detention facility in another jurisdiction unless subdivision (e) is complied with and notification and a written treatment plan are received by the chief medical officer of the local detention facility receiving the person. (e) All discharges, releases, or transfers described in subdivisions (a), (b), (c), and (d) may occur only after notification and a written treatment plan pursuant to Section 3282 has been received by the local health officer. When prior notification would jeopardize the person's health, the public safety, or the safety and security of the penal institution, then the notification and treatment plan shall be submitted within 24 hours of discharge, release, or transfer. SEC. 4. Section 3282 of the Health and Safety Code is amended to read: 3282. Each health care provider who treats a person for active tuberculosis disease, each person in charge of a health facility, or each person in charge of a clinic providing outpatient treatment for active tuberculosis disease shall promptly report to the local health officer at the times that the health officer requires, but no less frequently than when there are reasonable grounds to believe that a person has active tuberculosis disease, and when a person ceases treatment for tuberculosis disease. Situations in which the provider may conclude that the patient has ceased treatment include times when the patient fails to keep an appointment, relocates without transferring care, or discontinues care. The initial disease notification report shall include an individual treatment plan that includes the patient name, address, date of birth, tuberculin skin test results, pertinent radiologic, microbiologic, and pathologic reports whether final or pending, and any other information required by the local health officer. Subsequent reports shall provide updated clinical status and laboratory results, assessment of treatment adherence, name of current care provider if patient transfers care, and any other information required by the local health officer. A facility discharge, release, or transfer report shall include all pertinent and updated information required by the local health officer not previously reported on initial or subsequent reports, and shall specifically include verified patient address, the name of the medical provider who has specifically agreed to provide medical care, clinical information used to assess the current infectious state, and any other information required by the local health officer. Each health care provider who treats a person with active tuberculosis disease, and each person in charge of a health facility or a clinic providing outpatient treatment for active tuberculosis disease, shall maintain written documentation of each patient's adherence to his or her individual treatment plans. Nothing in this section shall authorize the disclosure of test results for human immunodeficiency virus (HIV) unless authorized by Chapter 1.11 (commencing with Section 199.20) of, Chapter 1.12 (commencing with Section 199.30) of, and Chapter 1.13 (commencing with Section 199.42) of, Division 1. In the case of a parolee under the jurisdiction of the Department of Corrections, the local health officer shall notify the medical officer of the parole region or the physician and surgeon designated by the Director of Corrections when there are reasonable grounds to believe that the parolee has active tuberculosis disease and when the parolee ceases treatment for tuberculosis. Situations where the local health officer may conclude that the parolee has ceased treatment include times when the parolee fails to keep an appointment, relocates without transferring care, or discontinues care. SEC. 5. Section 3283 of the Health and Safety Code is amended to read: 3283. Each health care provider who treats a person for active tuberculosis disease shall examine, or cause to be examined, all household contacts or shall refer them to the local health officer for examination. Each health care provider shall promptly notify the local health officer of the referral. When required by the local health officer, nonhousehold contacts and household contacts not examined by a health care provider shall submit to examination by the local health officer or designee. If any abnormality consistent with tuberculosis disease is found, steps satisfactory to the local health officer shall be taken to refer the person promptly to a health care provider for further investigation, and if necessary, treatment. Contacts shall be reexamined at times and in a manner as the local health officer may require. When requested by the local health officer, a health care provider shall report the results of any examination related to tuberculosis of a contact. SEC. 6. Section 3284 of the Health and Safety Code is amended to read: 3284. (a) Within the territory under his or her jurisdiction, each local health officer may order examinations for tuberculosis infection for the purposes of directing preventive measures for persons in the territory, except those incarcerated in a state correctional institution, for whom the local health officer has reasonable grounds to determine are at heightened risk of tuberculosis exposure. (b) An order for examination pursuant to this section shall be in writing and shall include other terms and conditions as may be necessary to protect the public health. SEC. 7. Section 3285 of the Health and Safety Code is amended to read: 3285. Each local health officer is hereby directed to use every available means to ascertain the existence of, and immediately investigate all reported or suspected cases of active tuberculosis disease in the jurisdiction, and to ascertain the sources of those infections. In carrying out the investigations, each local health officer shall follow applicable local rules and regulations and all general and special rules, regulations, and orders of the state department. If the local health officer determines that the public health in general or the health of a particular person is endangered by exposure to a person who is known to have active tuberculosis disease, or to a person for whom there are reasonable grounds to believe has active tuberculosis disease, the local 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 the orders. Upon the receipt of information that any order has been violated, the health officer shall advise the district attorney of the county in which the violation has occurred, in writing, and shall submit to the district attorney the information in his or her possession relating to the subject matter of the order, and of the violation or violations thereof. The orders may include, but shall not be limited to, any of the following: (a) An order authorizing the removal to, detention in, or admission into, a health facility or other treatment facility for appropriate examination for active tuberculosis disease of a person who is known to have active tuberculosis disease, or a person for whom there are reasonable grounds to believe that the person has active tuberculosis disease and who is unable or unwilling voluntarily to submit to the examination by a physician or by the local health officer. Any person whom the health officer determines should have an examination for tuberculosis disease may have the examination made by a physician and surgeon of his or her own choice who is licensed to practice medicine under Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code under terms and conditions as the local health officer shall determine on reasonable grounds to be necessary to protect the public health. This section does not authorize the local health officer to mandate involuntary anergy testing. (b) An order requiring a person who has active tuberculosis disease to complete an appropriate prescribed course of medication for tuberculosis disease and, if necessary, to follow required infection control precautions for tuberculosis disease. This subdivision does not allow the forceable or involuntary administration of medication. (c) An order requiring a person who has active tuberculosis disease and who is unable or unwilling otherwise to complete an appropriate prescribed course of medication for tuberculosis disease to follow a course of directly observed therapy. This subdivision does not allow forceable or involuntary administration of medication. (d) An order for the removal to, detention in, or admission into, a health facility or other treatment facility of a person if both of the following occur: (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. (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. (e) An order for the removal to, detention in, or admission into, a health facility or other treatment facility of a person if both of the following occur: (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. (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. The behavior may include, but is not limited to, refusal or failure to take medication for tuberculosis disease, refusal or failure to keep appointments or treatment for tuberculosis disease, refusal or failure to complete the treatment for tuberculosis disease, or disregard for infection control precautions for active tuberculosis disease. (f) An order for exclusion from attendance at the workplace for persons with infectious tuberculosis disease. The order may, also, exclude the person from any place when the local health officer determines that the place cannot be maintained in a manner adequate to protect others against the spread of tuberculosis disease. (g) An order for isolation of persons with infectious tuberculosis disease to their place of residence until the local health officer has determined that they no longer have infectious tuberculosis disease. (h) This section shall apply to all persons except those incarcerated in a state correctional institution. (i) This section shall not be construed to require a private hospital or other private treatment facility to accept any patient without a payment source, including county responsibilities under Section 17000 of the Welfare and Institutions Code, except as required by Sections 1317 et seq. or by federal law. SEC. 8. Section 3285.1 of the Health and Safety Code is amended to read: 3285.1. The local health officer may detain in a hospital or other appropriate place for examination or treatment, a person who is the subject of an order of detention issued pursuant to subdivision (a), (d), or (e) of Section 3285 without a prior court order except that when a person detained pursuant to subdivision (a), (d), or (e) of Section 3285 has requested release, the local health officer shall make an application for a court order authorizing the continued detention within 72 hours after the request or, if the 72-hour period ends on a Saturday, Sunday, or legal holiday, by the end of the first business day following the Saturday, Sunday, or legal holiday, which application shall include a request for an expedited hearing. After the request for release, detention shall not continue for more than five business days in the absence of a court order authorizing detention. However, in no event shall any person be detained for more than 60 days without a court order authorizing the detention. The local health officer shall seek further court review of the detention within 90 days following the initial court order authorizing detention and thereafter within 90 days of each subsequent court review. In any court proceeding to enforce a local health officer's order for the removal or detention of a person, the local health officer shall prove the particularized circumstances constituting the necessity for the detention by clear and convincing evidence. Any person who is subject to a detention order shall have the right to be represented by counsel and upon the request of the person, counsel shall be provided. SEC. 9. Section 3285.2 of the Health and Safety Code is amended to read: 3285.2. (a) An order of a local health officer pursuant to Section 3285 shall set forth all of the following: (1) The legal authority under which the order is issued, including the particular sections of state law or regulations. (2) An individualized assessment of the person's circumstances or behavior constituting the basis for the issuance of the order. (3) The less restrictive treatment alternatives that were attempted and were unsuccessful, or the less restrictive treatment alternatives that were considered and rejected, and the reasons the alternatives were rejected. (4) The orders shall be in writing, and shall include the name of the person, the period of time during which the order shall remain effective, the location, payer source if known, and other terms and conditions as may be necessary to protect the public health. Upon issuing an order, a copy of the order shall be served upon the person named in the order. (b) An order for the detention of a person shall do all of the following: (1) Include the purpose of the detention. (2) Advise the person being detained that he or she has the right to request release from detention by contacting a person designated on the local health officer's order at the telephone number stated on the order and that the detention shall not continue for more than five business days after the request for release, in the absence of a court order authorizing the detention. (3) Advise the person being detained that, whether or not he or she requests release from detention, the local health officer is required to obtain a court order authorizing detention within 60 days following the commencement of detention and thereafter shall further seek court review of the detention within 90 days of the court order and within 90 days of each subsequent court review. (4) 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, the counsel will be notified that the person has requested legal representation. (5) Be accompanied by a separate notice that shall include, but not be limited to, all of the following additional information: (A) That the person being detained has the right to request release from detention by contacting a person designated on the local health officer's order at a telephone number stated on the order, and that the detention shall not continue for more than five business days after the request in the absence of a court order authorizing the detention. (B) 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, the counsel will be notified that the person has requested legal representation. (C) That he or she may supply the addresses or telephone numbers of not more than two individuals to receive notification of the person's detention, and that the local health officer shall, at the patient's request, provide notice within the limits of reasonable diligence to those people that the person is being detained. SEC. 10. Section 3285.3 of the Health and Safety Code is amended to read: 3285.3. Notwithstanding any inconsistent provision of Section 3285, 3285.1 or 3285.2, all of the following shall apply: (a) A person who is detained solely pursuant to subdivision (a) of Section 3285 shall not continue to be detained beyond the minimum period of time required, with the exercise of all due diligence, to make a medical determination of whether a person who is suspected of having tuberculosis disease, has active tuberculosis or whether a person who has active tuberculosis disease has infectious tuberculosis disease. Further detention of the person shall be authorized only upon the issuance of a local health officer's order pursuant to subdivision (d) or (e) of Section 3285. (b) A person who is detained solely for the reasons described in subdivision (d) of Section 3285 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. (c) A person who is detained for the reasons described in subdivision (e) of Section 3285 shall not continue to be detained after he or she has completed an appropriate prescribed course of medication. SEC. 11. Section 3285.4 of the Health and Safety Code is amended to read: 3285.4. For the purposes of Sections 3285, 3285.1, and 3285.2, all of the following shall apply: (a) If necessary, language interpreters and persons skilled in communicating with vision and hearing impaired individuals shall be provided in accordance with applicable law. (b) Nothing in those sections shall be construed to permit or require the forcible administration of any medication without a prior court order. (c) Any and all orders authorized under those sections shall be made by the local health officer. His or her authority to make the orders may be delegated to the person in charge of medical treatment of inmates in penal institutions within the local health officer's jurisdiction, or pursuant to Section 7. The local health officer shall not make any orders incorporating by reference any other rules or regulations. SEC. 12. Section 3351 of the Health and Safety Code is amended to read: 3351. Inasmuch as the orders provided for by Section 3285 are for the protection of the public health, any person who, after service upon him or her of an order of a local health officer as provided in Section 3285 violates or fails to comply with the order, is guilty of a misdemeanor. Upon conviction thereof, in addition to any and all other penalties that may be imposed by law upon the conviction, the person may be ordered by the court confined until the order of the local health officer shall have been fully complied with or terminated by the local health officer, but not exceeding one year from the date of passing judgment upon the conviction, further, the court, upon suitable assurances that the order of the local health officer will be complied with, may place any person convicted of a violation of the order of the local health officer upon probation for a period not to exceed two years, upon condition that the order of the local health officer be fully complied with, further, upon any subsequent violation of the order of the local health officer, the probation shall be terminated and confinement as provided for in this section shall be ordered by the court. Confinement may be accomplished by placement in any appropriate facility, penal institution, or dwelling approved for the specific case by the local health officer. SEC. 13. Notwithstanding Section 17610 of the Government Code, if the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. If the statewide cost of the claim for reimbursement does not exceed one million dollars ($1,000,000), reimbursement shall be made from the State Mandates Claims Fund. Notwithstanding Section 17580 of the Government Code, unless otherwise specified in this act, the provisions of this act shall become operative on the same date that the act takes effect pursuant to the California Constitution.