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HOUSE OF REPRESENTATIVES

H.B. NO.

2521

TWENTY-FIRST LEGISLATURE, 2002

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO CONTROL OF DISEASE.

 

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

SECTION 1. The legislature finds that the tragic events of September 11, 2001 have focused attention on the State's ability to protect the health, safety, and well-being of its citizens and visitors. New and emerging dangers, including emergent and resurgent infectious diseases and incidents of civilian mass casualties, pose serious and immediate threats to the population.

Emergency health threats, including those caused by bioterrorism and epidemics, may require the exercise of extraordinary government functions. An examination of our resources for the prevention, detection, management, and containment of public health emergencies is thus called for.

The emergency powers embodied in chapters 127 and 128, Hawaii Revised Statutes, as vested in the Civil Defense System, are adequate to enable the State to respond rapidly and effectively to potential or actual public health emergencies. Accordingly, nothing in this Act is intended to supersede or otherwise limit the provisions of chapters 127 and 128.

Modifications to the authority of the department of health, as expressed in this Act, will enable the department to respond more effectively to emerging health problems prior to the need for declaration of a Civil Defense Emergency.

Physical and workforce resources of the department may be inadequate to deal swiftly and effectively with emerging health problems resulting from a life-threatening epidemic or terrorist event, and assistance of private healthcare facilities and providers may be needed to protect the State's citizens and visitors. Therefore, the legislature finds and declares that public support of private healthcare facilities and providers that have assisted the department of health in dealing with emerging health problems resulting from an epidemic or terrorist event is in the public interest and for the public health, safety, and general welfare.

This Act provides for development of collaborative agreements to enable private providers to assist the department in carrying out essential public health functions under the direction of the department with the intent that they will be fairly compensated as well as protected in carrying out this vital public purpose.

SECTION 2. Chapter 325, Hawaii Revised Statutes, is amended by adding to part I a new section to be appropriately designated and to read as follows:

"325- Collaboration in control of disease outbreaks. (a) The director may enter into agreements for collaborative assistance with licensed health care facilities and health care providers in the State to control an epidemic of a dangerous disease which requires more physical facilities, materials, or personnel than the department has available.

(b) Whenever used in this section, unless a different meaning clearly appears from the context:

"Dangerous disease" means any illness or health condition that might pose a substantial risk of a significant number of human fatalities or incidents of permanent or long-term disability.

"Epidemic" means the occurrence of cases of an illness clearly in excess of normal expectancy, as determined by the director.

"Health care facility" means a facility as defined in section 323D-2.

"Health care provider" means a provider as defined in section 323D-2.

(c) Under such agreements, health care facilities or health care providers will provide prophylactic and treatment services for the epidemic disease in collaboration with and under the general direction of the department, and shall seek reimbursement from the individuals who receive medical care, the parties responsible for their care, or their health plans. Persons having health plan benefits shall be responsible for any co-payments to the facilities or health care provider.

(d) Such agreements may provide that the department will use reasonable efforts to seek a legislative appropriation to reimburse health care facilities and health care providers for the use of physical facilities, professional services, and materials provided to persons without health plan coverage.

(e) Neither the State nor any political subdivision, nor, except in cases of willful misconduct, a healthcare facility or healthcare provider acting at the direction of the department under an agreement as provided in this section, nor the persons engaged in disease prevention and control functions pursuant to this section or sections 325-8 and 325-9, including volunteers whose services are accepted by any authorized person, shall be liable for the death of or injury to persons, or for damage to property, as a result of any act or omission in the course of the employment or duties."

SECTION 3. Section 321-1, Hawaii Revised Statutes, is amended by amending subsection (e) to read as follows:

"(e) When in the judgment of the director, there is deemed to be a potential health hazard, the department, through the director, may take precautionary measures to protect the public through the imposition of an embargo, [or] the detention of products regulated by the department, [or] the removal of products regulated by the department from the market, [or] the declaration of quarantine[;] or by sequestering items suspected to be contaminated by toxic or infectious substances; provided that the director must find evidence of a health hazard within [seventy-two hours] seven days of the action taken or rescind the action. The director shall make public the findings."

SECTION 4. Section 321-311.5, Hawaii Revised Statutes, is amended to read as follows:

"[[]321-311.5[]] Epidemiologic investigations. (a) The department may conduct investigations to determine the nature and extent of diseases and injuries deemed by the department to threaten the public health and safety.

(b) Every person, health care provider, and medical facility shall provide the patient's name, the name of a minor patient's parent or guardian, address, telephone number, age, sex, race or ethnicity, clinical signs and symptoms, laboratory test results, diagnostic interview data, treatment provided, and the disposition of the patient when requested by an authorized representative of the director for the purpose of conducting such an investigation. The authorized representative may only view the limited portion of the patient's medical record which is directly relevant in time and scope to the subject of the investigation.

(c) Every person, company, organization, association, health care provider, or medical facility shall provide names, addresses, telephone numbers, and locating information about a person suspected of having been exposed to a disease or disease-causing substance that is the subject of an epidemiologic investigation when requested by an authorized representative of the director for the purpose of conducting such an investigation. For the purposes of this section, locating information shall include, but not be limited to, information contained in appointment, reservation, registration, invitation, attendance, billing, or payment lists or records that may help the department to identify, locate, or contact individuals suspected of having been exposed to a disease under investigation.

[(c)] (d) No person, company, organization, association, health care provider, or medical facility that provides information requested by an authorized representative of the director for the purpose of conducting an investigation under this section shall be held civilly or criminally liable for providing that information to the department.

[(d)] (e) All information provided to the department under this section shall be kept strictly confidential, except as the director determines is necessary to protect the public health and safety. Access to confidential records shall be restricted to those individuals specifically authorized to participate in any given investigation. However, epidemiologic and statistical information with no individual identifying information may be released to the public. The identities of individuals whose medical records are investigated shall be disclosed only to those persons authorized by the director or the director's representative to conduct a specific investigation under this section or determined by the director to be necessary to protect the health and safety of the public."

SECTION 5. Section 325-8, Hawaii Revised Statutes, is amended to read as follows:

"325-8 Infected persons[, removal] and quarantine. [When any person is infected or suspected of being infected with any infectious, communicable, or other disease dangerous to the public health, the department of health or its agent, may, for the safety of the public, remove the sick or infected person to a separate house or hospital, and provide the person with medical care and other necessaries, which shall be at the expense of the person's self, the person's parents or guardian, if able to meet the expense, otherwise at the expense of the county in which the person is ill or infected. The county council shall pay the expenses upon certification by the department or its agents that a person has been so removed and that expense has been incurred under this section.] (a) As used in this section, quarantine means the compulsory physical separation, including the restriction of movement or confinement, of individuals or groups believed to have been exposed to or known to have been infected with a contagious disease from individuals who are believed not to have been exposed or infected, by order of the department of health or a court of competent jurisdiction, to prevent or limit the transmission of the disease to others.

(b) It is the policy of the State that quarantine shall only be employed when the director determines that quarantine is the least restrictive means by which the public can be protected from transmission of a dangerous disease, due to the nature of the disease and available preventive measures, or refusal by an individual to accept less restrictive measures to prevent disease transmission. In implementing quarantine, the individual dignity of any individual quarantined shall be respected at all times and upon all occasions to the greatest extent possible consistent with the goal of preventing or limiting the transmission of the disease to others. The needs of individuals quarantined shall be addressed in as systematic and competent a fashion as is reasonable under the circumstances. To the extent possible, the premises in which individuals are quarantined shall be maintained in safe and hygienic manners, designed to minimize the likelihood of further transmission of infection or other harm to individuals subject to quarantine. Adequate food, clothing, medication, and other necessities, access to counsel, means of communication with those in and outside these settings, and competent medical care shall be provided. To the extent possible, cultural and religious beliefs shall be considered in addressing the needs of individuals, and establishing and maintaining isolation and quarantine premises. Consistent with this policy, the department may establish and maintain places of quarantine and require quarantine of any individual by the least restrictive means necessary to protect the public health. The department shall take all reasonable means prevent the transmission of infection between or among quarantined individuals. Quarantine of any individual shall be terminated when the director determines that quarantine of that individual is no longer necessary to protect the public health.

(c) An individual subject to quarantine shall obey the department's rules and orders, shall not go beyond the quarantine premises, and shall not put himself or herself in contact with any individual not subject to quarantine other than a physician or other health care provider or individual authorized to enter a quarantine premises by the department. Violation of any of the provisions of this subsection is a misdemeanor.

(d) No individual, other than an individual authorized by the department, shall enter a quarantine premises. Any individual entering a quarantine premises without permission of the department shall be guilty of a misdemeanor. If, by reason of an unauthorized entry into a quarantine premises, the individual poses a danger to public health, the individual may be subject to quarantine pursuant to the provisions of this section.

(e) Before quarantining an individual, the department shall obtain a written, ex parte order from a court of this State authorizing such action. A petition for an ex parte order shall be filed with the circuit court of the circuit in which the individual resides, is suspected to reside, or is quarantined. Proceedings on or related to a petition for an ex parte order shall be a civil action. The court shall grant an ex parte order upon finding that probable cause exists to believe quarantine is warranted pursuant to the provisions of this section. A copy of the ex parte order shall be given to the individual quarantined, along with notification that the individual has a right to a hearing under this section.

(f) Notwithstanding the preceding subsection, the department may quarantine an individual without first obtaining a written, ex parte order from the court if any delay in the quarantine of the individual would pose an immediate threat to the public health. Following such a quarantine, the department shall promptly obtain a written, ex parte order from the court authorizing the quarantine.

(g) An individual quarantined pursuant to the provisions of subsection (e) or (f) shall have the right to a court hearing to contest the ex parte order. If the individual, the individual's guardian ad litem, or the individual's counsel requests a hearing, the hearing shall be held within fourteen days of filing of such request. The request shall be in writing and shall be filed with the circuit court of the circuit in which the individual is quarantined. A request for a hearing shall not alter or stay the quarantine of the individual. The department shall be entitled to notice of the request for a hearing at least ten days before the hearing. At the hearing, the department must show that the quarantine is warranted pursuant to the provisions of this section. If, after hearing all relevant evidence, the court finds that the criteria for quarantine under subsection (i) have been met by clear and convincing evidence, the court shall authorize continued quarantine of the individual.

(h) On or after thirty days following issuance of an ex parte order or such hearing as is provided for in this section, an individual quarantined pursuant to the provisions of this section may request in writing a court hearing to contest his or her continued quarantine. The hearing shall be held within fourteen days of the filing of such request. The request shall be in writing and shall be filed with the circuit court for the circuit in which the individual is quarantined. A request for a hearing shall not alter or stay the order of quarantine. The department shall be entitled to notice of the request for a hearing at least ten days before the hearing. At the hearing, the department must show that continuation of the quarantine is warranted pursuant to the provisions of this section. If, after hearing all relevant evidence, the court finds that the criteria for quarantine under subsection (i) have been met by clear and convincing evidence, the court shall authorize continued quarantine of the individual.

(i) A court may order an individual to be quarantined if the court finds:

(1) That the individual is reasonably believed to have been exposed to or known to have been infected with a communicable or dangerous disease and

(2) That quarantine is the least restrictive means by which public health, safety, and welfare can be protected, due to the transmissible nature of the communicable or dangerous disease and available preventive measures, or due to failure by the individual to accept or practice less restrictive measures to prevent disease transmission.

For purposes of this section, "communicable disease" means any disease declared to be "communicable" by the director of health. "Dangerous disease" means a disease as defined in section 325- .

(j) An individual quarantined pursuant to the provisions of this section may request a hearing in the courts of this State regarding the individual's treatment and the terms and conditions of the quarantine. Upon receiving such a request, the court shall fix a date for a hearing. The hearing shall take place within fourteen days of the filing of the request with the court. The request for a hearing shall not alter or stay the order of quarantine. The department shall be entitled to notice of the request for a hearing at least ten days before the hearing. If, upon a hearing, the court finds that the quarantine of the individual is not in compliance with the provisions of subsection (b), the court may fashion remedies reasonable under the circumstances and in keeping with the provisions of this chapter.

(k) Judicial decisions shall be based upon clear and convincing evidence, and a written record of the disposition of the case shall be made and retained. The quarantined individual shall have the right to be represented by counsel. In the event that personal appearance before the court of an individual is determined by the director to pose a threat to the health of court officers due to the circumstances leading to quarantine and the individual does not waive his or her right to attend the hearing, the court shall appoint a guardian ad litem as provided in Article V of chapter 560, to represent the subject throughout the proceedings or shall hold the hearing via any means that allows all parties to participate as fully and safely as is reasonable under the circumstances.

(l) Upon written request, the court shall appoint counsel at state expense to represent individuals or groups of individuals who are or who are about to be quarantined pursuant to the provisions of this section and who are not otherwise represented by counsel. Adequate means of communication between such individuals or groups and their counsel and guardians ad litem shall be provided.

(m) In any proceedings brought pursuant to this section, to promote the fair and efficient operation of justice and having given due regard to the rights of the affected individuals, the protection of the public health, the severity of the emergency and the availability of necessary witnesses and evidence, the court may order the consolidation of individual claims into group claims where:

(1) The number of individuals involved or to be affected is so large as to render individual participation impractical;

(2) There are questions of law or fact common to the individual claims or rights to be determined;

(3) the group claims or rights to be determined are typical of the affected individuals' claims or rights; and

(4) the entire group will be adequately represented in the consolidation.

(n) Each individual quarantined, or the individual's health plan, shall be responsible for the costs of food, lodging, and medical care."

SECTION 6. Section 325-79, Hawaii Revised Statutes, is repealed.

["325-79 Isolation of tubercular person. If any person who has active communicable tuberculosis refuses to be isolated or hospitalized for the person's tuberculosis after having been notified by the department of health that the person has active communicable tuberculosis, any judge of any district court of the State or any judge of any circuit court of the State may, upon satisfactory application to the judge by the department, notice to the person, hearing of the person and the person's witnesses and consideration of the person's evidence, and proof that the person has active communicable tuberculosis and will be a source of exposing another to the disease, order the person to be isolated and hospitalized in a hospital in the State in which the person can be properly isolated and hospitalized for active communicable tuberculosis; provided that nothing in this part shall have the effect of requiring or giving any court, health officer, or other person the right to compel any person to go to or be confined in a hospital or other medical institution if the person can be safely quarantined in the person's own home or other suitable place of the person's choice. An affidavit of a physician of the department or of a physician who is duly licensed in the State that the physician has caused to be made a sputum or gastric examination of the person for tubercle bacilli in a laboratory accepted by the department and a chest x-ray examination of the person for active communicable tuberculosis and believes from the examination that the person has active communicable tuberculosis may be received as prima facie evidence that the person has active communicable tuberculosis and should be ordered under sections 325-79 to 325-84 to be isolated and hospitalized in a hospital in which the person can be properly isolated and hospitalized for tuberculosis."]

SECTION 7. Section 325-80, Hawaii Revised Statutes, is repealed.

["325-80 Enforcement of isolation of tubercular person. Reasonable force may be used by any sheriff, deputy sheriff, police officer, officer or employee of the department of health, authorized hospital officer, or authorized hospital employee to cause any person to be or to continue to be isolated and hospitalized as required by a valid and effective order of any judge which is issued under section 325-79. But nothing in sections 325-79 to 325-84 or in any order under the sections shall authorize any person to prevent any person who is ordered to be isolated and hospitalized from communicating or conferring with any relative, friend, attorney, judge, or any other person."]

SECTION 8. Section 325-81, Hawaii Revised Statutes, is repealed.

["325-81 Right, private physician, etc. Any person who has been ordered to be isolated and hospitalized under section 325-79 shall be permitted to be examined and treated at any time by the person's private physician or physicians if the person is isolated and hospitalized in a hospital other than a tuberculosis sanatorium, subject to the reasonable rules of the hospital in which the person is hospitalized."]

SECTION 9. Section 325-82, Hawaii Revised Statutes, is repealed.

["325-82 Form of order, effectiveness. No order issued under sections 325-79 to 325-84 by any district or circuit judge shall be effective unless it specifically names one and only one hospital in which it orders the person to be isolated and hospitalized. No such order shall be effective to require isolation or hospitalization in any hospital other than the hospital named in the order."]

SECTION 10. Section 325-83, Hawaii Revised Statutes, is repealed.

["325-83 Release from isolation. Whenever any person ordered to be isolated and hospitalized under section 325-79 has ceased to have active communicable tuberculosis and has had all reasonably necessary rehabilitative care and treatment after tuberculosis and in any event within six months after the person has ceased to have active communicable tuberculosis, the director or manager of the hospital in which the person is to be isolated or hospitalized under an order under sections 325-79 to 325-84 shall release the person from the isolation and hospitalization and shall notify the judge of the court from which such order was issued of the release of the person."]

SECTION 11. Section 325-84, Hawaii Revised Statutes, is repealed.

["325-84 Application, right to release. Any person shall be entitled to be released from isolation and hospitalization under sections 325-79 to 325-84 on application to any district judge or judge of any circuit court and proof to the judge of the person's right under section 325-83 to be released from isolation or hospitalization. Before any application under this section is granted or heard and before any evidence in support of the application is received, the department of health shall be entitled to notice of the application and hearing and an opportunity to oppose the application and to adduce evidence at the hearing."]

SECTION 12. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that extent the provisions of this Act are severable.

SECTION 13. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 14. This Act shall take effect upon its approval.

INTRODUCED BY:

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