84R5076 SCL-D

By: Nelson S.B. No. 355

A BILL TO BE ENTITLED

AN ACT

relating to control measures for an individual exposed to a communicable disease.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Sections 81.083(e) and (m), Health and Safety Code, are amended to read as follows:

(e) An individual may be subject to detention under Section 81.0891 and court orders under Subchapter G if the individual is infected or is reasonably suspected of being exposed to or infected with a communicable disease that presents an immediate threat to the public health and:

(1) the individual, or the individual's parent, legal guardian, or managing conservator if the individual is a minor, does not comply with the written orders of the department or a health authority under this section; or

(2) a public health disaster exists, regardless of whether the department or health authority has issued a written order and the individual has indicated that the individual will not voluntarily comply with control measures.

(m) A peace officer, including a sheriff or constable, may use reasonable force to:

(1) secure an individual subject to an order issued under Subsection (b) or the members of a group subject to an order issued under Subsection (k); and

(2) except as directed by the department or health authority, prevent:

(A) an individual subject to an order issued under this section from leaving a facility or location designated in the order; or

(B) the members of a group subject to an order issued under Subsection (k) from leaving the group or other individuals from joining the group.

SECTION 2. Subchapter E, Chapter 81, Health and Safety Code, is amended by adding Sections 81.0891, 81.0892, 81.0893, 81.0894, and 81.0895 to read as follows:

Sec. 81.0891. APPREHENSION BY PEACE OFFICER WITHOUT WARRANT. (a) A peace officer, without a warrant, may take an individual who is the subject of a control order issued under Section 81.083 into custody if the officer has reason to believe and does believe that:

(1) the individual, or for a minor individual the individual's parent, legal guardian, or managing conservator, is not complying with the written orders of the department or a health authority under Section 81.083;

(2) the individual has or has been exposed to a communicable disease; and

(3) as a result of that communicable disease, there is a substantial risk of serious harm to others unless the individual is immediately detained.

(b) A substantial risk of serious harm to others under Subsection (a)(3) may be demonstrated by:

(1) the individual's violation of a control order issued under Section 81.083, including a failure to remain at a facility or location designated in the order;

(2) evidence of illness and deterioration of the individual's physical condition to the extent that the individual cannot remain at liberty; or

(3) information provided to the peace officer by the department or a health authority that issued a control order under Section 81.083.

(c) A peace officer may form the belief that an individual meets the criteria described by Subsection (a):

(1) on information and belief from a credible person, including the department or a health authority that issued a control order under Section 81.083;

(2) through observation of the individual's conduct; or

(3) by the circumstances under which the individual is apprehended.

(d) A peace officer who takes an individual into custody under Subsection (a) shall immediately transport the individual to:

(1) the nearest appropriate health facility; or

(2) a location considered suitable by the department or health authority that issued a control order under Section 81.083.

(e) A nonmedical facility used to detain individuals who are charged with or convicted of a crime may be considered suitable under Subsection (d)(2) only if no other appropriate facility is available. If an individual is detained in a jail or a similar detention facility under this subsection, the detained individual must be isolated from any individual who is charged with or convicted of a crime. The department or a health authority that issued a control order under Section 81.083 shall ensure that proper isolation methods are used and medical care is made available to the individual.

(f) A peace officer who takes an individual into custody under Subsection (a) shall immediately inform the individual orally in simple, nontechnical terms:

(1) of the reason for the detention; and

(2) that not later than the 24th hour after the time the person is apprehended under this section, the individual will be informed of the individual's rights under Section 81.0895 by a staff member of:

(A) the health facility where the individual is detained; or

(B) the department or a health authority that issued a control order under Section 81.083 for an individual detained at a location designated by the department or health authority.

Sec. 81.0892. PEACE OFFICER'S NOTIFICATION OF DETENTION. (a) After transporting an individual to a facility or location, a peace officer shall immediately file a notification of detention described by this section with:

(1) a health facility and the department or health authority that issued a control order under Section 81.083 for an individual detained in the health facility; or

(2) the department or health authority that issued a control order under Section 81.083 for an individual detained in a location designated by the department or health authority.

(b) The notification of detention must contain:

(1) a statement that the peace officer has reason to believe and does believe that the individual is the subject of a control order under Section 81.083;

(2) a statement that the peace officer has reason to believe and does believe that the individual poses a substantial risk of serious harm to others;

(3) a specific description of the risk of harm;

(4) a statement that the peace officer has reason to believe and does believe that the risk of harm is imminent unless the individual is immediately detained;

(5) a statement that the peace officer's beliefs are derived from specific recent behavior, overt acts, attempts, statements, or threats that were observed by or reliably reported to the officer;

(6) a detailed description of the specific behavior, acts, attempts, statements, or threats; and

(7) the name of the person who reported or observed the behavior, acts, attempts, statements, or threats.

(c) If an individual is detained at a health facility, the facility shall include in the individual's file the notification of detention described by this section.

(d) A peace officer shall give the notification of detention described by this section on the following form: Notification-Communicable Disease Emergency Detention NO. ____________________ DATE:_______________ TIME:_______________ THE STATE OF TEXAS FOR THE BEST INTEREST AND PROTECTION OF: ______________________________________

NOTIFICATION OF COMMUNICABLE DISEASE EMERGENCY DETENTION Now comes _____________________________, a peace officer with _____________________________ (name of agency), of the State of Texas, and states as follows: 1. I have reason to believe and do believe that __________________________ (name of person to be detained) is the subject of a control order issued under Section 81.083, Health and Safety Code, and has either been exposed to a communicable disease or evidences symptoms reasonably believed to be a communicable disease. 2. I have reason to believe and do believe that the above-named person evidences a substantial risk of serious harm to others based on the following: ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ 3. I have reason to believe and do believe that the above risk of harm is imminent unless the above-named person is immediately detained. 4. My beliefs are based on the following recent behavior, overt acts, attempts, statements, or threats observed by me or reliably reported to me: ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ 5. The names and addresses of the persons who reported or observed recent behavior, acts, attempts, statements, or threats of the above-named person are (if applicable): ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ For the above reasons, I present this notification to _________________________ (name of facility, health authority, or department) for the detention of __________________________ (name of person to be detained). 6. Was the person restrained in any way? Yes □ No □ _________________________ BADGE NO. _____________________ PEACE OFFICER'S SIGNATURE Address: _________________________ Zip Code:____________________ Telephone: ______________________

The Department of State Health Services, a health authority, or a health or detention facility may not require a peace officer to execute any form other than this form as a requirement to accept for temporary admission a person detained under Section 81.0891, Health and Safety Code.

(e) The department, a health authority, a health facility, or the owner or person in control of a location designated by the department or health authority may not require a peace officer to execute any form other than the form provided by Subsection (d) as a requirement to accept for temporary admission an individual detained under Section 81.0891.

Sec. 81.0893. ACCEPTANCE OF INDIVIDUAL. A health facility or a person who owns or is in control of a location designated by the department or health authority that issued a control order under Section 81.083 shall accept an individual for whom a peace officer files a notification of detention under Section 81.0892 until the individual is required to be released under Section 81.0894.

Sec. 81.0894. RELEASE FROM TEMPORARY DETENTION. (a) An individual apprehended under Section 81.0891 may be detained for a period not to exceed 48 hours from the time the individual is transported to a facility or location required under Section 81.0891(d) unless a written order for further custody or detention is obtained under Subchapter G.

(b) If the 48-hour period described by Subsection (a) ends on a Saturday, Sunday, or legal holiday, the individual may be detained until the first succeeding business day. If the 48-hour period ends at any other time, the individual may be detained only until the day the 48-hour period ends.

(c) If extremely hazardous weather conditions exist or a disaster occurs, the judge or magistrate of a court in which an application for a court order for management of the individual is filed may, by written order made each day, extend by an additional 24 hours the period during which the individual may be detained. The written order must declare that an emergency exists because of the weather or the occurrence of a disaster.

(d) An individual must be released in the manner provided by Section 81.168(b).

Sec. 81.0895. RIGHTS OF DETAINED INDIVIDUALS. (a) An individual apprehended or detained under this chapter has the right to:

(1) be advised of the detention location, of the reasons for the detention, and that the detention could result in a longer period of court-ordered management;

(2) a reasonable opportunity to communicate with and retain an attorney;

(3) be released from a facility as provided by Section 81.0894;

(4) be advised that communications with the department, a health authority, or a health professional may be used in proceedings for further detention; and

(5) a reasonable opportunity to communicate with a relative or other responsible individual who has a proper interest in the detained individual's welfare.

(b) Not later than the 24th hour after the time an individual is admitted to or detained in a facility or a location designated by the department or a health authority that issued a control order under Section 81.083, the individual must be informed of the rights provided by this subchapter:

(1) orally in simple, nontechnical terms, and in writing that, if possible, is in the individual's primary language; or

(2) through the use of a means reasonably calculated to communicate with a hearing or visually impaired person, if applicable.

(c) The executive commissioner of the Health and Human Services Commission by rule shall prescribe the manner in which an individual is informed of the individual's rights under this subchapter.

SECTION 3. The heading to Subchapter G, Chapter 81, Health and Safety Code, is amended to read as follows:

SUBCHAPTER G. COURT ORDERS FOR MANAGEMENT OF PERSONS EXPOSED TO OR

INFECTED WITH COMMUNICABLE DISEASES

SECTION 4. Section 81.151(e), Health and Safety Code, is amended to read as follows:

(e) A single application may be filed for a group if:

(1) the department or health authority reasonably suspects that a group of five or more persons has been exposed to or infected with a communicable disease; and

(2) each person in the group meets the criteria of this chapter for court orders for the management of a person exposed to or infected with a communicable disease.

SECTION 5. Sections 81.152(a), (b), and (c), Health and Safety Code, are amended to read as follows:

(a) An application for a court order for the management of a person exposed to or infected with a communicable disease must be styled using the person's initials and not the person's full name.

(b) The application must state whether the application is for temporary or extended management of a person with or exposed to a communicable disease.

(c) Any application must contain the following information according to the applicant's information and belief:

(1) the person's name and address;

(2) the person's county of residence in this state;

(3) a statement that the person is infected with or is reasonably suspected of having been exposed to or [being] infected with a communicable disease that presents a threat to public health and that the person meets the criteria of this chapter for court orders for the management of a person with a communicable disease; and

(4) a statement, to be included only in an application for inpatient treatment, that the person fails or refuses to comply with written orders of the department or health authority under Section 81.083, if applicable.

SECTION 6. Section 81.153(a), Health and Safety Code, is amended to read as follows:

(a) The judge shall appoint an attorney to represent a person not later than the 24th hour after the time an application for a court order for the management of a person exposed to or infected with a communicable disease is filed if the person does not have an attorney. The judge shall also appoint a language or sign interpreter if necessary to ensure effective communication with the attorney in the person's primary language.

SECTION 7. Section 81.158(a), Health and Safety Code, is amended to read as follows:

(a) An affidavit of medical evaluation must be dated and signed by the commissioner or the commissioner's designee, or by a health authority with the concurrence of the commissioner or the commissioner's designee. The certificate must include:

(1) the name and address of the examining physician, if applicable;

(2) the name and address of the person examined or to be examined;

(3) the date and place of the examination, if applicable;

(4) a brief diagnosis of the examined person's physical and mental condition, if applicable;

(5) the period, if any, during which the examined person has been under the care of the examining physician;

(6) an accurate description of the health treatment, if any, given by or administered under the direction of the examining physician; and

(7) the opinion of the health authority or department and the reason for that opinion, including laboratory reports, that:

(A) the examined person is infected with or is reasonably suspected of having been exposed to or [being] infected with a communicable disease that presents a threat to public health; and

(B) as a result of that communicable disease the examined person:

(i) is likely to cause serious harm to self [himself]; or

(ii) will, if not examined, observed, or treated, continue to endanger public health.

SECTION 8. Section 81.159(a), Health and Safety Code, is amended to read as follows:

(a) The commissioner shall designate health care facilities throughout the state that are capable of providing services for the examination, observation, isolation, or treatment of persons having or suspected of being exposed to or having a communicable disease. However, the commissioner may not designate:

(1) a nursing home or custodial care home required to be licensed under Chapter 242; or

(2) an intermediate care facility for persons with an intellectual or developmental disability [the mentally retarded] required to be licensed under Chapter 252.

SECTION 9. Section 81.161(a), Health and Safety Code, is amended to read as follows:

(a) A motion for an order of protective custody may be filed only in the court in which an application for a court order for the management of a person exposed to or infected with a communicable disease is pending.

SECTION 10. Sections 81.162(a) and (f), Health and Safety Code, are amended to read as follows:

(a) The judge or designated magistrate may issue a protective custody order if the judge or magistrate determines:

(1) that the health authority or department has stated its opinion and the detailed basis for its opinion that the person is infected with or is reasonably suspected of having been exposed to or [being] infected with a communicable disease that presents an immediate threat to the public health; and

(2) that the person fails or refuses to comply with the written orders of the health authority or the department under Section 81.083, if applicable.

(f) Notwithstanding Section 81.161 or Subsection (c), a judge or magistrate may issue a temporary protective custody order before the filing of an application for a court order for the management of a person exposed to or infected with a communicable disease under Section 81.151 if:

(1) the judge or magistrate takes testimony that an application under Section 81.151, together with a motion for protective custody under Section 81.161, will be filed with the court on the next business day; and

(2) the judge or magistrate determines based on evidence taken under Subsection (d) that there is probable cause to believe that the person presents a substantial risk of serious harm to self [himself] or others to the extent that the person cannot be at liberty pending the filing of the application and motion.

SECTION 11. Section 81.165(a), Health and Safety Code, is amended to read as follows:

(a) A hearing must be held to determine if:

(1) there is probable cause to believe that a person under a protective custody order presents a substantial risk of serious harm to self [himself] or others to the extent that the person cannot be at liberty pending the hearing on a court order for the management of a person exposed to or infected with a communicable disease; and

(2) the health authority or department has stated its opinion and the detailed basis for its opinion that the person is infected with or is reasonably suspected of being exposed to or infected with a communicable disease that presents an immediate threat to public health.

SECTION 12. Section 81.166(d), Health and Safety Code, is amended to read as follows:

(d) The notification of probable cause hearing shall read as follows:

(Style of Case)

NOTIFICATION OF PROBABLE CAUSE HEARING

On this the _____ day of _________________, 20__ [19__], the undersigned hearing officer heard evidence concerning the need for protective custody of ___________ (hereinafter referred to as proposed patient). The proposed patient was given the opportunity to challenge the allegations that (s)he presents a substantial risk of serious harm to self or others.

The proposed patient and his or her attorney _________________________ have been given written notice that the proposed patient was placed under an order of protective custody and the reasons for such order on ___________ (date of notice).

I have examined the affidavit of medical evaluation and ________________ (other evidence considered). Based on this evidence, I find that there is probable cause to believe that the proposed patient presents a substantial risk of serious harm to himself or herself (yes ____ or no ____) or others (yes ____ or no ____) such that (s)he cannot be at liberty pending final hearing because (s)he is infected with or is reasonably suspected of being exposed to or infected with a communicable disease that presents an immediate threat to the public health and (s)he has failed or refused to comply with the orders of the health authority or the [Texas] Department of State Health Services delivered on __________ (date of service) ____________.

SECTION 13. Section 81.167(a), Health and Safety Code, is amended to read as follows:

(a) The head of a facility or the facility head's designee shall detain a person under a protective custody order in the facility pending a court order for the management of a person exposed to or infected with a communicable disease or until the person is released or discharged under Section 81.168.

SECTION 14. Section 81.168(c), Health and Safety Code, is amended to read as follows:

(c) The head of a facility shall discharge a person held under a protective custody order if:

(1) the head of the facility does not receive notice within 72 hours after detention begins, excluding Saturdays, Sundays, legal holidays, the period prescribed by Section 81.165(b) for an extreme weather emergency, and the duration of a public health disaster, that a probable cause hearing was held and the person's continued detention was authorized;

(2) a final court order for the management of a person exposed to or infected with a communicable disease has not been entered within the time prescribed by Section 81.154; or

(3) the health authority or commissioner determines that the person no longer meets the criteria for protective custody prescribed by Section 81.162.

SECTION 15. Section 81.169(a), Health and Safety Code, is amended to read as follows:

(a) Except as provided by Subsection (b), the judge may hold a hearing on an application for a court order for the management of a person exposed to or infected with a communicable disease at any suitable location in the county. The hearing should be held in a physical setting that is not likely to have a harmful effect on the public or the person.

SECTION 16. Section 81.170(f), Health and Safety Code, is amended to read as follows:

(f) The jury shall determine if the person is infected with or is reasonably suspected of being exposed to or infected with a communicable disease that presents a threat to the public health and, if the application is for inpatient treatment, has refused or failed to follow the orders of the health authority. The jury may not make a finding about the type of services to be provided to the person.

SECTION 17. Section 81.171(a), Health and Safety Code, is amended to read as follows:

(a) The court shall enter an order denying an application for a court order for temporary or extended management if after a hearing the judge or jury fails to find, from clear and convincing evidence, that the person:

(1) is infected with or is reasonably suspected of being exposed to or infected with a communicable disease that presents a threat to the public health;

(2) has refused or failed to follow the orders of the health authority if the application is for inpatient treatment; and

(3) meets the applicable criteria for orders for the management of a person exposed to or infected with a communicable disease.

SECTION 18. Section 81.172(a), Health and Safety Code, is amended to read as follows:

(a) The judge or jury may determine that a person requires court-ordered examination, observation, isolation, or treatment only if the judge or jury finds, from clear and convincing evidence, that:

(1) the person is infected with or is reasonably suspected of being exposed to or infected with a communicable disease that presents a threat to the public health and, if the application is for inpatient treatment, has failed or refused to follow the orders of the health authority or department; and

(2) as a result of the communicable disease the person:

(A) is likely to cause serious harm to self [himself]; or

(B) will, if not examined, observed, isolated, or treated, continue to endanger public health.

SECTION 19. Section 81.174(a), Health and Safety Code, is amended to read as follows:

(a) The judge shall dismiss the jury, if any, after a hearing in which a person is found:

(1) to be infected with or reasonably suspected of being exposed to or infected with a communicable disease;

(2) to have failed or refused to follow the orders of a health authority or the department if the application is for inpatient treatment; and

(3) to meet the criteria for orders for the management of a patient exposed to or infected with a communicable disease.

SECTION 20. Section 81.176, Health and Safety Code, is amended to read as follows:

Sec. 81.176. DESIGNATION OF FACILITY. In a court order for the temporary or extended management of a person exposed to or infected with a communicable disease specifying inpatient care, the court shall commit the person to a health care facility designated by the commissioner or a health authority in accordance with Section 81.159.

SECTION 21. Section 81.183(b), Health and Safety Code, is amended to read as follows:

(b) The court shall appoint an attorney to represent the person if a hearing is scheduled. The person shall be given notice of the matters to be considered at the hearing. The notice must comply with the requirements of Section 81.155 for notice before a hearing on an application for court orders for the management of a person exposed to or infected with a communicable disease.

SECTION 22. Section 81.186(a), Health and Safety Code, is amended to read as follows:

(a) The court may modify an order for outpatient services at the modification hearing if the court determines that the person continues to meet the applicable criteria for court orders for the management of a person exposed to or infected with a communicable disease and that:

(1) the person has not complied with the court's order; or

(2) the person's condition has deteriorated to the extent that outpatient services are no longer appropriate.

SECTION 23. Section 81.188(a), Health and Safety Code, is amended to read as follows:

(a) The court may set aside an order for the management of a person exposed to or infected with a communicable disease and grant a motion for rehearing for good cause shown.

SECTION 24. Section 81.190(d), Health and Safety Code, is amended to read as follows:

(d) The hearing is held before the court and without a jury. The hearing must be held in accordance with the requirements for a hearing on an application for a court order for the management of a person exposed to or infected with a communicable disease.

SECTION 25. Section 81.191(a), Health and Safety Code, is amended to read as follows:

(a) An appeal from an order for the management of a person exposed to or infected with a communicable disease, or from a renewal or modification of an order, must be filed in the court of appeals for the county in which the order is entered.

SECTION 26. Section 81.193(a), Health and Safety Code, is amended to read as follows:

(a) The head of a facility may permit a person admitted to the facility under order for extended inpatient management of a person exposed to or infected with a communicable disease to leave the facility under a pass.

SECTION 27. This Act takes effect September 1, 2015.