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36-725. Orders to cooperate; emergency custody

A. If the tuberculosis control officer or the local health officer knows or has reasonable grounds to believe someone is an afflicted person who endangers another person or the community and the afflicted person fails or refuses to comply with voluntary examination, monitoring, treatment, isolation or quarantine, the tuberculosis control officer or the local health officer shall issue a written order to cooperate to the afflicted person or, if a minor or incapacitated person, the afflicted person's parent or guardian that requires the afflicted person to cooperate with all intervention efforts to prevent and control the transmission of the disease. The order may require the afflicted person to participate in education, counseling, examination, medical treatment and supervision programs and to undergo medical tests for monitoring and to verify the afflicted person's status.

B. In urgent circumstances an order to cooperate may be an oral statement followed by the issuance of a written order by the end of the next business day. For the purposes of this subsection, "urgent circumstances" means those situations when the tuberculosis control officer or the local health officer determines the issuance of a written order to be reasonably impractical due to circumstances beyond the control of the officer, including inaccessibility, dangerous conditions or the threat of physical violence.

C. An order to cooperate shall be individual and specific and shall not be issued to a class of persons. The order shall be served on the afflicted person or, if a minor or incapacitated person, the afflicted person's parent or guardian by a person who is employed by or under contract to the department, the tuberculosis control officer or the local health officer or by any sheriff, peace officer or person authorized to serve process. If personal service cannot be performed despite the exercise of due diligence, the order may be served by certified mail, return receipt requested. An affidavit of service that details the procedures followed in serving the order shall be prepared and maintained in the case file of the tuberculosis control officer or the local health officer.

D. An order to cooperate issued pursuant to this section shall include a statement that, unless the afflicted person complies with the actions required in the order, the tuberculosis control officer or the local health officer may order the afflicted person to be taken into emergency custody and shall seek a court order for compulsory examination, monitoring, treatment, isolation or quarantine. The order to cooperate shall also state that if a court order is sought, the afflicted person to whom the order is issued has the right to notice and a hearing and other rights as provided by law.

E. If the afflicted person refuses to comply with an order issued pursuant to this section or if the tuberculosis control officer or local health officer knows that an afflicted person has previously failed or refused to comply with an appropriate prescribed course of medication, treatment or monitoring, and if the tuberculosis control officer or the local health officer has reasonable grounds to believe that the afflicted person poses a substantial danger to another person or the community and that emergency custody is necessary to prevent a substantial danger to another person or the community, the tuberculosis control officer or the local health officer may issue an emergency custody order directing a sheriff or law enforcement officer to take the afflicted person into custody, to take precautions reasonable and necessary under the circumstances to protect the health of law enforcement officers and to oversee and ensure the transport of the afflicted person to an institution or facility specified in the order. If the afflicted person's condition or the institution's or facility's location or hours make transportation impracticable, the afflicted person shall be transported to an institution or facility designated by the department, the tuberculosis control officer or the local health officer. The order may be an oral order followed by the issuance of a written order by the end of the next business day. The receiving institution or facility shall provide suitable housing and care of the afflicted person. At the option of the tuberculosis control officer or the local health officer, an afflicted person may be transported by a health care provider, emergency medical services personnel, a physician, ambulance personnel, an ambulance service, guardian, conservator, parent, custodian, relative or friend to a designated institution or facility. A sheriff or law enforcement agency shall maintain custody of the afflicted person until the afflicted person is delivered to the institution or facility specified in the order or to an alternate institution or facility approved by the department, the tuberculosis control officer or the local health officer.

F. The admitting officer of an institution or facility that receives an afflicted person pursuant to subsection E of this section shall admit the afflicted person as an emergency patient and shall perform an examination to determine if the afflicted person must be isolated.

G. An afflicted person admitted pursuant to an emergency custody order shall be released from custody if the medical director of the receiving institution or facility, with the advice and consent of the tuberculosis control officer or a local health officer, determines that the afflicted person is any of the following:

1. Not afflicted with active tuberculosis.

2. Not a danger to another person or to the community and release is appropriate.

3. Qualified for release as a voluntary patient.

H. If an afflicted person is admitted pursuant to an emergency custody order, the tuberculosis control officer, the local health officer or a designated legal representative shall file a petition for public health protection within three business days after the detention unless the afflicted person has been accepted as a voluntary patient. The petition shall conform to the requirements of section 36-726.

I. At the time an afflicted person is taken into emergency custody pursuant to this section, the tuberculosis control officer or local health officer, within the limits of due diligence, shall promptly notify the afflicted person's physician, parent or guardian or an adult member of the afflicted person's family of the detention. The notification shall include the location of the detention, the terms and conditions of custody and the authority that ordered the afflicted person's detention. An afflicted person detained under this section or, if a minor or incapacitated person, the afflicted person's parent or guardian shall be informed by the tuberculosis control officer or the local health officer of the afflicted person's rights under this article, including the right to consult with an attorney and the right to have an attorney appointed by the court if the afflicted person cannot afford to employ an attorney. The afflicted person or, if a minor or incapacitated person, the afflicted person's parent or guardian shall also be advised that if a petition for public health protection is filed the court shall appoint an attorney to consult with and to represent the afflicted person if the afflicted person cannot afford to employ an attorney.

J. If the afflicted person is a minor or incapacitated person, the tuberculosis control officer or local health officer shall use reasonable efforts to locate, contact and confer with a parent or guardian prior to initiating an intervention pursuant to this article.

K. In the event a parent or guardian of an afflicted person who is a minor or an incapacitated person cannot be located or the parent or guardian is unwilling to consent to a recommended intervention pursuant to this article, the tuberculosis control officer or local health officer, for the purpose of protecting the public health, may initiate any intervention that does not prescribe medical treatment for the minor or the incapacitated person unless medical treatment is otherwise authorized by section 14-5209, 14-5312, 44-132 or 44-133.

L. A petition for public health protection shall be filed with the clerk of the superior court within three business days after the afflicted person's emergency detention authorized pursuant to an order of the tuberculosis control officer or the local health officer. A petition filed pursuant to this subsection shall conform to the requirements of section 36-726. If a petition for public health protection is not filed within three business days after the detention, the afflicted person shall be immediately released from custody. An afflicted person who is released for this reason shall not be returned to emergency custody by a subsequent order unless the tuberculosis control officer or the local health officer first obtains an order from the superior court that permits detention pursuant to this article.

M. This section does not allow a private or public facility or agency to forcibly or involuntarily administer medications to an afflicted person unless authorized by the written order of the superior court pursuant to this article or as otherwise permitted by law.