Bill Text: AZ SB1703 | 2023 | Fifty-sixth Legislature 1st Regular | Engrossed
Bill Title: In loco parentis; prohibition
Spectrum: Partisan Bill (Republican 3-0)
Status: (Engrossed - Dead) 2023-03-27 - House read second time [SB1703 Detail]
Download: Arizona-2023-SB1703-Engrossed.html
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Senate Engrossed
in loco parentis; prohibition |
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State of Arizona Senate Fifty-sixth Legislature First Regular Session 2023
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SENATE BILL 1703 |
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An Act
amending sections 1-602, 15-101, 15-872, 23-235, 23-371, 25-409, 36-673, 36-674 and 36-725, Arizona Revised Statutes; repealing section 44-133, Arizona Revised Statutes; relating to in loco parentis.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 1-602, Arizona Revised Statutes, is amended to read:
1-602. Parents' bill of rights; governmental interference restricted; burden of proof; definition
A. All parental rights are exclusively reserved to a parent of a minor child without obstruction or interference from this state, any political subdivision of this state, any other governmental entity or any other institution, including:
1. The right to direct the education of the minor child.
2. All rights of parents identified in title 15, including the right to access and review all records relating to the minor child.
3. The right to direct the upbringing of the minor child.
4. The right to direct the moral or religious training of the minor child.
5. The right to make all health care decisions for the minor child, including rights pursuant to sections 15-873, 36-2271 and 36-2272, unless otherwise prohibited by law.
6. The right to request, access and review all written and electronic medical records of the minor child unless otherwise prohibited by law or unless the parent is the subject of an investigation of a crime committed against the minor child and a law enforcement official requests that the information not be released.
7. The right to consent in writing before a biometric scan of the minor child is made pursuant to section 15-109.
8. The right to consent in writing before any record of the minor child's blood or deoxyribonucleic acid is created, stored or shared, except as required by section 36-694, or before any genetic testing is conducted on the minor child pursuant to section 12-2803 unless authorized pursuant to section 13-610 or a court order.
9. The right to consent in writing before this state or any of its political subdivisions makes a video or voice recording of the minor child, unless the video or voice recording is made during or as a part of a court proceeding, by law enforcement officers during or as part of a law enforcement investigation, during or as part of an interview in a criminal or child safety services investigation or to be used solely for any of the following:
(a) Safety demonstrations, including the maintenance of order and discipline in the common areas of a school or on pupil transportation vehicles.
(b) A purpose related to a legitimate academic or extracurricular activity.
(c) A purpose related to regular classroom instruction.
(d) Security or surveillance of buildings or grounds.
(e) A photo identification card.
10. The right to be notified promptly if an employee of this state, any political subdivision of this state, any other governmental entity or any other institution suspects that a criminal offense has been committed against the minor child by someone other than a parent, unless the incident has first been reported to law enforcement and notifying the parent would impede a law enforcement or child safety services investigation. This paragraph does not create any new obligation for school districts and charter schools to report misconduct between students at school, such as fighting or aggressive play, that is routinely addressed as a student disciplinary matter by the school.
11. The right to obtain information about a child safety services investigation involving the parent pursuant to section 8-807.
B. This section does not authorize or allow a parent to engage in conduct that is unlawful or to abuse or neglect a child in violation of the laws of this state. This section does not prohibit courts, law enforcement officers or employees of a government agency responsible for child welfare from acting in their official capacity within the scope of their authority. This section does not prohibit a court from issuing an order that is otherwise allowed by law.
C. Any attempt to encourage or coerce a minor child to withhold information from the child's parent is grounds for discipline of an employee of this state, any political subdivision of this state, any other governmental entity or any other institution, except for law enforcement personnel.
D. Unless those rights have been legally waived or legally terminated, parents have inalienable rights that are more comprehensive than those listed in this section. This chapter does not prescribe all rights of parents or preempt or foreclose claims or remedies in support of parental rights that are available under the constitution, statutes or common law of this state. Unless otherwise required by law, the rights of parents of minor children shall not be limited or denied. Unless otherwise required by law, an employee of this state, of any political subdivision of this state, of any other governmental entity or of any other institution may not stand in loco parentis to a parent's child without the parent's consent.
E. Except as prescribed in subsections F and G of this section, this state, a political subdivision of this state or any other governmental entity, or any official of this state, a political subdivision of this state or any other governmental entity acting under color of law, shall not interfere with or usurp the fundamental right of parents to direct the upbringing, education, health care and mental health of their children. A parent may bring suit against a governmental entity or official described in this subsection based on any violation of the statutory rights set forth in this chapter or any other action that interferes with or usurps the fundamental right of parents to direct the upbringing, education, health care and mental health of their children in the superior court in the county in which the violation or other action occurs or in federal court, if authorized by federal law, or before an administrative tribunal of appropriate jurisdiction. A parent may raise a violation of this chapter as a claim or a defense.
F. In any action under subsection E of this section, the governmental entity or official described in subsection E of this section has the burden of proof to demonstrate both of the following:
1. That the interference or usurpation is essential to accomplish a compelling government interest of the highest order, as long recognized in the history and traditions of this state in the operation of its regulatory powers.
2. That the method of interference or usurpation used by the government is narrowly tailored and is not otherwise served by a less restrictive means.
G. A governmental entity or official described in subsection E of this section may interfere with or usurp the fundamental right of parents to direct the upbringing, education, health care and mental health of their children only if the governmental entity or official successfully demonstrates both elements described in subsection F of this section. If the governmental entity or official is unsuccessful, the court shall grant appropriate relief, such as declaratory or injunctive relief, compensatory damages and attorney fees, based on the facts of the case and the law as applied to the facts.
H. For the purposes of this section, "parent" means the natural or adoptive parent or legal guardian of a minor child.
Sec. 2. Section 15-101, Arizona Revised Statutes, is amended to read:
15-101. Definitions
In this title, unless the context otherwise requires:
1. "Accommodation school" means either:
(a) A school that is operated through the county board of supervisors and the county school superintendent and that the county school superintendent administers to serve a military reservation or territory that is not included within the boundaries of a school district.
(b) A school that provides educational services to homeless children or alternative education programs as provided in section 15-308, subsection B.
(c) A school that is established to serve a military reservation, the boundaries of which are coterminous with the boundaries of the military reservation on which the school is located.
2. "Assessed valuation" means the valuation derived by applying the applicable percentage as provided in title 42, chapter 15, article 1 to the full cash value or limited property value, whichever is applicable, of the property.
3. "Charter holder" means a person that enters into a charter with the state board for charter schools. For the purposes of this paragraph, "person" means an individual, partnership, corporation, association or public or private organization of any kind.
4. "Charter school" means a public school established by contract with the state board of education, the state board for charter schools, a university under the jurisdiction of the Arizona board of regents, a community college district or a group of community college districts pursuant to article 8 of this chapter to provide learning that will improve pupil student achievement.
5. "Child with a disability" means a child with a disability as defined in section 15-761.
6. "Class A bonds" means general obligation bonds approved by a vote of the qualified electors of a school district at an election held on or before December 31, 1998.
7. "Class B bonds" means general obligation bonds approved by a vote of the qualified electors of a school district at an election held from and after December 31, 1998.
8. "Competency" means a demonstrated ability in a skill at a specified performance level.
9. "Course" means organized subject matter in which instruction is offered within a given period of time and for which credit toward promotion, graduation or certification is usually given. A course consists of knowledge selected from a subject for instructional purposes in the schools.
10. "Course of study" means a list of required and optional subjects to be taught in the schools.
11. "Dual enrollment course" means a college-level course that is conducted on the campus of a high school or on the campus of a career technical education district, that is applicable to an established community college academic degree or certificate program and that is transferable to a university under the jurisdiction of the Arizona board of regents. A dual enrollment course that is applicable to a community college occupational degree or certificate program may be transferable to a university under the jurisdiction of the Arizona board of regents.
12. "Elementary grades" means kindergarten programs and grades one through eight.
13. "Fiscal year" means the year beginning July 1 and ending June 30.
14. "Governing board" means a body that is organized for the government to govern and management of manage the schools within a school district or a county school superintendent in the conduct of conducting an accommodation school.
15. "Lease" means an agreement for conveyance conveying and possession of possessing real or personal property.
16. "Limited property value" means the value determined pursuant to title 42, chapter 13, article 7. Limited property value shall be that is used as the basis for assessing, fixing, determining and levying primary property taxes.
17. "Nontest" means not relating to knowledge or skills in reading, writing, mathematics, social studies, science or any other course.
18. "Parent" means the natural or adoptive parent of a child or a person who has custody of a child.
19. "Person who has custody" means a parent or legal guardian of a child, or a person to whom custody of the child has been given by order of a court or a person who stands in loco parentis to the child.
20. "Primary property taxes" means all ad valorem taxes except for secondary property taxes.
21. "Private school" means a nonpublic institution where instruction is imparted.
22. "School" or "public school" means any public institution established for the purposes of offering instruction to pupils students in programs for preschool children with disabilities, kindergarten programs or any combination of elementary grades or secondary grades one through twelve.
23. "School district" means a political subdivision of this state with geographic boundaries organized for the purpose of the administration to administer, support and maintenance of maintain the public schools or an accommodation school.
24. "Secondary grades" means grades nine through twelve.
25. "Secondary property taxes" means ad valorem taxes used to pay the principal of and the interest and redemption charges on any bonded indebtedness or other lawful long-term obligation issued or incurred for a specific purpose by a school district or a community college district and amounts levied pursuant to an election to exceed a budget, expenditure or tax limitation.
26. "Subject" means a division or field of organized knowledge, such as English or mathematics, or a selection from an organized body of knowledge for a course or teaching unit, such as the English novel or elementary algebra.
Sec. 3. Section 15-872, Arizona Revised Statutes, is amended to read:
15-872. Proof of immunization; noncompliance; notice to parents; civil immunity
A. The director of the department of health services, in consultation with the superintendent of public instruction, shall develop by rule standards for documentary proof.
B. A pupil student shall not be allowed to attend school without submitting documentary proof to the school administrator unless the pupil student is exempted from immunization pursuant to section 15-873.
C. Each public school shall make full disclosure of the requirements and exemptions as prescribed in this section and section 15-873.
D. On enrollment, the school administrator shall suspend that pupil student if the administrator does not have documentary proof and the pupil student is not exempted from immunization pursuant to section 15-873.
E. Notwithstanding subsections B and D of this section, a pupil student may be admitted to or allowed to attend a school if the pupil student has received at least one dose of each of the required immunizations prescribed pursuant to section 36-672 and has established a schedule for the completion of completing required immunizations. The parent, or guardian or person in loco parentis of a pupil student shall present to the school administrator documentary proof of the immunizations received and a schedule prepared by the pupil's student's physician or registered nurse practitioner or a health agency for completion of completing additional required immunizations.
F. The school administrator shall review the school immunization record for each pupil student admitted or allowed to continue attendance pursuant to subsection E of this section at least twice each school year until the pupil student receives all of the required immunizations and shall suspend a pupil student as prescribed in subsection G of this section who fails to comply with the immunization schedule. Immunizations received by a pupil student shall be entered in the pupil's student's school immunization record.
G. Unless proof of an exemption from immunization pursuant to section 15-873 is provided, a pupil student who is admitted or allowed to continue to attend and who fails to comply with the immunization schedule within the time intervals specified by the schedule shall be suspended from school attendance until documentary proof of the administration of another dose of each appropriate immunizing agent is provided to the school administrator.
H. The provisions of Subsections B, D and E of this section do not apply to homeless pupils students until the fifth calendar day after enrollment.
I. A school and its employees are immune from civil liability for decisions concerning the admission, readmission and suspension of a pupil student that are based on a good faith implementation of the requirements of this article.
Sec. 4. Section 23-235, Arizona Revised Statutes, is amended to read:
23-235. Exemptions
A. Sections 23-231, 23-232 and 23-233 do not apply to persons:
1. Who are employed by a grandparent, brother, sister, aunt, uncle, first cousin, stepparent or parent, including a relative of the same degree through marriage or adoption, or person in loco parentis in occupations in which the grandparent, brother, sister, aunt, uncle, first cousin, stepparent or parent or person in loco parentis owns at least ten percent of the employing organization and such owner is actively engaged in the daily operation of the organization, if either:
(a) The person is under eighteen years of age and is not engaged in manufacturing or mining occupations.
(b) The person is between sixteen and eighteen years of age and is engaged in manufacturing or mining occupations.
2. Who are employed as stars or performers in motion picture, theatrical, radio or television productions if before the beginning of production the production company provides the department of labor of the industrial commission with the name and address of the person, the length, location and hours of employment and any other information required by the department.
3. Who are involved in career education programs.
4. Who are involved in vocational or technical training school programs pursuant to title 15, chapter 7, article 5.
5. Who are employed as apprentices and registered by the bureau of apprenticeship and training of the United States department of labor in accordance with the standards established by that bureau or registered by the apprenticeship council or employed under a written apprenticeship agreement and conditions that are found by the secretary of labor to conform substantially with such federal or state standards.
6. Who are trained under either the 4-H federal extension service or the United States office of education vocational agriculture training programs, if employed outside school hours on the equipment for which they have been trained.
7. Who have completed vocational or career education programs approved by the department of education if the programs are directly related to the prohibited occupation or employment or if working in the prohibited occupation is part of the vocational or career education program.
8. Who are married.
9. Who have a high school diploma or its equivalent.
10. Who are minors and who have been emancipated pursuant to title 12, chapter 15.
B. Sections 23-231 and 23-232 do not apply to:
1. The operation of power-driven equipment used in the care and maintenance of lawns and shrubbery not connected to retail, food service and gasoline service establishments.
2. Clerical employment in an office in which duties are performed without exposure to the hazards described or defined in this article.
Sec. 5. Subject to the requirements of article IV, part 1, section 1, Constitution of Arizona, section 23-371, Arizona Revised Statutes, is amended to read:
23-371. Definitions
For purposes of In this article, unless the context otherwise requires:
A. 1. "Abuse" means an offense prescribed in section 13-3623, Arizona Revised Statutes.
B. 2. "Commission" is as defined has the same meaning prescribed in section 23-362, Arizona Revised Statutes.
C. 3. "Domestic violence" is as defined has the same meaning prescribed in section 13-3601, Arizona Revised Statutes.
D. 4. "Earned paid sick time" means time that is compensated at the same hourly rate and with the same benefits, including health care benefits, as the employee normally earns during hours worked and that is provided by an employer to an employee for the purposes described in section 23-373 of this article, but in no case shall this hourly amount be less than that provided under the Fair Labor Standards Act of 1938 (29 United States Code section 206(A)(1)) or section 23-363, Arizona Revised Statutes.
E. 5. "Employ" is as defined has the same meaning prescribed in section 23-362, Arizona Revised Statutes.
F. 6. "Employee" is as defined has the same meaning prescribed in section 23-362, Arizona Revised Statutes. Employee and includes recipients of public benefits who are engaged in work activity as a condition of receiving public assistance.
G. 7. "Employer" includes any corporation, proprietorship, partnership, joint venture, limited liability company, trust, association, political subdivision of the this state, individual or other entity acting directly or indirectly in the interest of an employer in relation to an employee, but does not include the State of Arizona or the United States.
H. 8. "Family member" means:
1. (a) Regardless of age, a biological, adopted or foster child, stepchild, or legal ward, a or child of a domestic partner. , a child to whom the employee stands in loco parentis, or an individual to whom the employee stood in loco parentis when the individual was a minor;
2. (b) A biological, foster, stepparent or adoptive parent or legal guardian of an employee or an employee's spouse or domestic partner. or a person who stood in loco parentis when the employee or employee's spouse or domestic partner was a minor child;
3. (c) A person to whom the employee is legally married under the laws of any state, or a domestic partner of an employee as registered under the laws of any state or political subdivision;
4. (d) A grandparent, grandchild or sibling, (whether of a biological, foster, adoptive or step relationship) step-relationship, of the employee or the employee's spouse or domestic partner. ; or
5. (e) Any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.
I. 9. "Retaliation" is as defined has the same meaning prescribed in section 23-364, Arizona Revised Statutes.
J. 10. "Sexual violence" means an offense prescribed in:
(a) Title 13, chapter 14, Arizona Revised Statutes, except for sections 13-1408 and 13-1422. ; or
(b) Sections 13-1304(A)(3), Section 13-1304, subsection A, paragraph 3 or section 13-1307, 13-3019, 13-3206, 13-3212, 13-3552, 13-3553, 13-3554, or 13-3560, Arizona Revised Statutes.
K. 11. "Stalking" means an offense prescribed in section 13-2923, Arizona Revised Statutes.
L. 12. "Year" means a regular and consecutive 12-month twelve-month period as determined by the employer.
Sec. 6. Section 25-409, Arizona Revised Statutes, is amended to read:
25-409. Third party rights
A. Pursuant to section 25-402, subsection B, paragraph 2, a person other than a legal parent may petition the superior court for legal decision-making authority or placement of the child. The court shall summarily deny a petition unless it finds that the petitioner's initial pleading establishes that all of the following are true:
1. The person filing the petition stands in loco parentis to the child.
2. It would be significantly detrimental to the child to remain or be placed in the care of either legal parent who wishes to keep or acquire legal decision-making.
3. A court of competent jurisdiction has not entered or approved an order concerning legal decision-making or parenting time within one year before the person filed a petition pursuant to this section, unless there is reason to believe the child's present environment may seriously endanger the child's physical, mental, moral or emotional health.
4. One of the following applies:
(a) One of the legal parents is deceased.
(b) The child's legal parents are not married to each other at the time the petition is filed.
(c) A proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed.
(d) The child has only one legal parent.
(e) The parental rights of one of the child's legal parents have been terminated.
(f) The paternity of the child has not been established.
B. Notwithstanding subsection A of this section, it is a rebuttable presumption that awarding legal decision-making to a legal parent serves the child's best interests because of the physical, psychological and emotional needs of the child to be reared by a legal parent. A third party may rebut this presumption only with proof showing by clear and convincing evidence that awarding legal decision-making to a legal parent is not consistent with the child's best interests.
C. Pursuant to section 25-402, subsection B, paragraph 2, a person other than a legal parent may petition the superior court for visitation with a child. The superior court may grant visitation rights during the child's minority on a finding that the visitation is in the child's best interests and that any of the following is true:
1. One of the legal parents is deceased or has been missing at least three months. For the purposes of this paragraph, a parent is considered to be missing if the parent's location has not been determined and the parent has been reported as missing to a law enforcement agency.
2. The child was born out of wedlock and the child's legal parents are not married to each other at the time the petition is filed.
3. For grandparent or great-grandparent visitation, the marriage of the parents of the child has been dissolved for at least three months.
4. For in loco parentis visitation, either of the following:
(a) A proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed.
(b) The marriage of the parents of the child has been dissolved for at least three months.
5. The parental rights of one of the child's legal parents have been terminated.
D. A petition filed under subsection A or C of this section must be verified or supported by affidavit and must include detailed facts supporting the petitioner's claim. The petitioner must also provide notice of this proceeding, including a copy of the petition and any affidavits or other attachments, and serve the notice pursuant to the Arizona rules of family law procedure to all of the following:
1. The child's legal parents.
2. A third party who possesses legal decision-making authority over the child or visitation rights.
3. The child's guardian or guardian ad litem.
4. A person or agency that possesses physical custody of the child or claims legal decision-making authority or visitation rights concerning the child.
5. Any other person or agency that has previously appeared in the action.
E. In deciding whether to grant visitation to a third party, the court shall give special weight to the legal parents' opinion of what serves their child's best interests and consider all relevant factors including:
1. The historical relationship, if any, between the child and the person seeking visitation.
2. The motivation of the requesting party seeking visitation.
3. The motivation of the person objecting to visitation.
4. The quantity of visitation time requested and the potential adverse impact that visitation will have on the child's customary activities.
5. If one or both of the child's parents are deceased, the benefit in maintaining an extended family relationship.
F. If logistically possible and appropriate, the court shall order visitation by a grandparent or great-grandparent if the child is residing or spending time with the parent through whom the grandparent or great-grandparent claims a right of access to the child.
G. A grandparent or great-grandparent seeking visitation rights under this section shall petition in the same action in which the family court previously decided legal decision-making and parenting time or, if no such case existed, by separate petition in the county of the child's home state, as defined in section 25-1002.
H. All visitation rights granted under this section automatically terminate if the child is adopted or placed for adoption. If the child is removed from an adoptive placement, the court may reinstate the visitation rights. This subsection does not apply if the child is adopted by the spouse of a natural parent after the natural parent remarries.
I. For the purposes of this section, a child who is adopted may be treated as if born in lawful wedlock only if the child is adopted jointly by parents who are married to one another as provided in section 8-103, subsection A.
Sec. 7. Section 36-673, Arizona Revised Statutes, is amended to read:
36-673. Duties of local health departments; immunization; reimbursement; training; informed consent
A. A local health department in cooperation with each school within the county shall provide for the required immunization of pupils students attending school.
B. A local health department shall provide immunizations required for school attendance at no cost to the pupil student or pupil's student's parent, or guardian or person in loco parentis. In order to receive reimbursement for the cost of the immunization from the pupil's student's or parent's private health insurance coverage, the local health department may enter into a contract governing the terms of reimbursement and claims with the corresponding private health care insurer. The local health department may enter into a contract with a private health care insurer on its own, in conjunction with other local health departments or through a qualified intermediary. If the local health department chooses not to contract with a private health care insurer, or does not respond to the request to contract from a private health care insurer within ninety days of after the request, the insurer is not required to reimburse the local health department for the immunization. If a private health care insurer declines or does not respond to a request to contract with a local health department, with a coalition of other local health departments or through a qualified intermediary within ninety days of after the request to contract, the private health care insurer must reimburse the local health department at the rate paid to an in-network provider.
C. A local health department, on request by a school nurse and approval by the school administrator, shall train and authorize the school nurse to administer required immunizations.
D. A pupil student shall not be immunized without the informed consent of the parent, or guardian or person in loco parentis of the pupil student. A pupil student who is at least eighteen years of age or is emancipated may consent to immunization.
Sec. 8. Section 36-674, Arizona Revised Statutes, is amended to read:
36-674. Providing proof of immunization
A physician, local health department or school nurse administering an immunization shall furnish documentary proof of immunization to the person immunized or, if that person is a child, to the child's parent or guardian or the person in loco parentis of the child.
Sec. 9. Section 36-725, Arizona Revised Statutes, is amended to read:
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 the afflicted person is 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 the afflicted person is 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, a guardian, a conservator, a parent, A custodian, a relative or a 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 the afflicted person is 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 the afflicted person is 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 before initiating an intervention pursuant to this article.
K. In the event If 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, or 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 allows 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.
Sec. 10. Repeal
Section 44-133, Arizona Revised Statutes, is repealed.
Sec. 11. Requirements for enactment; three-fourths vote
Pursuant to article IV, part 1, section 1, Constitution of Arizona, section 23-371, Arizona Revised Statutes, as amended by this act, is effective only on the affirmative vote of at least three-fourths of the members of each house of the legislature.
