The Tuberculosis Epidemic: Legal and Ethical Issues for Alcohol and Other Drug Treatment Providers
Treatment Improvement Protocol (TIP) Series 18

Q: Is it legal for an alcohol and other drug (AOD) treatment program to ask an applicant for AOD services whether he or she:

1. Is currently infected with TB?
2. Has infectious TB disease?
3. Has a history of TB infection or infectious disease?
4. Is currently being treated for TB infection (prophylaxis) or infectious TB by a health care provider?

A: Yes, if obtaining such information is needed to enable the program to provide services or to ensure its safe operation.

As a general rule, a program subject to the Rehabilitation Act and/or the ADA may not ask a prospective client whether he or she has a particular disability simply for the purpose of identifying and excluding all people with that disability from obtaining admission into the program.

However, a program is permitted under both statutes to ask questions designed to determine whether the individual is qualified to receive its services -- that is, able to meet the program's essential eligibility requirements.

Since many AOD programs are required as a condition of receiving Federal Substance Abuse Prevention and Treatment block grant funds to make TB counseling, testing, and treatment available to their clients, they have solid justification for incorporating TB status inquiries into their admission policies. Therefore, an AOD program may ask a prospective client about his or her TB status and history in order to determine: (1) whether the client has (or may have) a condition that would pose a significant risk to the health or safety of the program's other clients or staff -- as would infectious TB; or (2) whether the client will need TB services (or a referral for TB services) from the AOD program, along with its AOD treatment services.

Finally, some AOD programs may have legal obligations under their own State's laws to examine all new program enrollees or applicants for communicable disease.

Q: Is it legal for an AOD treatment program to condition admission upon an applicant's consent to be tested for TB?

A: Yes. The Federal disability discrimination laws do not prohibit service providers, including AOD programs, from requiring applicants to undergo medical examinations, including TB tests, as a condition of receiving their services. But imposing such a requirement as a condition of admission must be justified either because it addresses the legitimate safety concerns of the program or because it is consistent with the need to provide the services the program offers.¹

As is discussed in the previous question, TB testing of applicants for AOD services can be justified for both of these reasons. And again, if a program is subject to the Federal TB services mandate, it may justify the testing requirement as a means by which the program can fulfill its obligations to make TB counseling, testing, and treatment available to its clients.

While an AOD program may require a client to submit to a TB test (or supply that information in response to pre-admission inquiries), the program may not act in a discriminatory manner with respect to the test results. The relationship between a client's TB test results and an AOD program's admission practices will be discussed in the next series of questions.

Q:Is it legal for an AOD program to refuse to admit an applicant for AOD services who is --

1. Known to have TB infection?
2. Known to have infectious TB disease?
3. Suspected of having TB infection/infectious disease?
4. Known to have a history of infectious TB disease?
5. Known to have MDR TB or a history of active MDR TB?
6. Suspected of having MDR TB?

A:The answer in each of these cases varies, and depends on the answers to two other key questions.

The first question that must be addressed is: Would admitting this individual create a direct threat to others -- that is, pose a significant risk to the health or safety of other clients or staff. As was noted previously, the determination of whether and when an individual with any disability poses a "significant risk" to the health or safety of others must be made on an individualized basis. That individualized assessment also must be based on medically sound knowledge and facts -- not speculative assumptions or unfounded fears -- and must take into account:

• The actual nature of the risk (i.e., in the context of TB, how the disease is transmitted, and whether a particular individual has active, infectious TB and is therefore capable of transmitting it to others)
• The duration of the risk (i.e., the length of contagiousness)
• The severity of the risk (i.e., the potential for harm to others if TB infection is actually transmitted)
• The probability that the potential injury will actually occur (i.e., how likely is it that transmission will occur?).

If the answer to the first question with respect to any of the TB-related conditions listed above is "no," the condition does not pose a significant risk and that ends the inquiry. It would be illegal to refuse admission to the individual in question.

But if the answer is "yes," the individual does pose a significant risk to others, the program must ask and answer a second question: Are there reasonable modifications the program can make to its practices, policies, or rules that will eliminate or mitigate the risk. If there are, those modifications must be made. If there are not, the program may lawfully exclude the individual from receiving services for as long as the significant risk to others (or inability to accommodate) continues to exist.

How these questions are answered with respect to specific TB-related conditions is discussed next.

TB infection only. Because TB infection absent clinical disease is not contagious to others, admitting and serving a client infected with TB would pose no risk to other clients or staff. Therefore, it would be illegal to exclude individuals from AOD treatment solely because they are known to have TB infection.

Current active TB disease. Whether an applicant with active TB poses a significant risk to others depends on whether his or her disease is (or may be) currently infectious. Only people with pulmonary or laryngeal TB have the potential to transmit tubercle bacilli to others. Moreover, the period of infectiousness will depend upon whether the patient is taking tuberculosis medication that is successfully keeping him or her noninfectious.

A person with active and infectious TB does pose a real risk of transmission to others in institutional settings like AOD programs, where other clients and staff share common air space with the infectious individual for repeated or extensive periods of time. This risk is more serious when the program is a residential one, and contact is prolonged, but it exists in outpatient settings as well. And, while it is generally treatable and curable, TB is nonetheless a serious disease with potentially fatal consequences if not treated appropriately.

Active infectious TB disease, therefore, can legitimately be seen as posing an actual and significant risk to others. As a result, putting in place policies and procedures designed to identify those who have infectious TB disease is perfectly justifiable. And denying admission to those individuals who are diagnosed with or show symptoms of infectious TB disease may also be justified -- if it is not possible to eliminate the risk of transmission by making reasonable modifications to the program's policies, rules, or procedures.

What about MDR TB. Is it legal for an AOD program to refuse to admit an applicant known to have active TB disease that is multidrug resistant. Again, the answer depends upon whether the applicant is infectious and whether the program is able to accommodate that risk. The fact that the TB disease is multidrug resistant is relevant to the determination of infectiousness. People with MDR TB may be infectious for a longer period of time than people with drug sensitive TB disease because of the difficulty in finding which combination of drugs are effective in attacking the tubercle bacilli.

A history of TB infection and/or active TB disease. A history of TB infection and/or a record of prior episodes of active TB are disabilities for purposes of the ADA and the Rehabilitation Act. It would be illegal for an AOD program to deny admission automatically to persons with such medical histories solely because they have such histories and without regard to whether they pose any present actual risk to other clients or staff. A history of TB infection or disease does not, by itself, provide any evidence of current disease or infectiousness.

If, however, a program concludes on the basis of reasonable medical judgment that the person has active TB and is currently infectious, then the program may deny admission for the period of infectiousness (assuming that no reasonable accommodations can be made.)

Suspected (but not confirmed) TB infection or disease. It is illegal under the Federal antidiscrimination laws to deny admission to an applicant for AOD services solely because of the suspicion that he or she may be infected with or have a contagious disease, including TB. An AOD program may, however, confirm the suspected diagnosis before deciding whether to admit such an individual. It may condition admission on the applicant's undergoing (or disclosing the results of) a medical examination to ascertain the diagnosis and fact or lack of infectiousness, or it may suspend or delay its admission decision until it obtains the medical information it needs to assess whether the applicant has a condition that poses a risk to other clients or staff.

Q No. 1: Is it legal for AOD programs to have policies that require as a condition of receiving and/or continuing in AOD treatment that an applicant or client with TB infection undergo TB prophylaxis?

A No. 1: No. Individuals generally have the right to make medical treatment decisions for themselves, and may not be subject to medical treatment without their voluntary informed consent after being apprised of the risks, benefits, and possible side effects of the proposed treatment. Although offering TB prophylaxis to individuals with TB infection may well prevent or reduce their risk of developing active disease in the future -- and is highly recommended by public health authorities for this reason -- the decision whether to undergo preventive therapy remains the choice of each individual.

Since latent TB infection is not contagious and does not pose a risk of transmission to others, and since being infected with TB does not inevitably result in active infectious disease in every case, it would be difficult for an AOD program to justify a requirement that all TB-infected clients undergo TB prophylaxis on the grounds that such a requirement is necessary to ensure the safe operation of the program, or to protect other clients or staff from a significant risk to their health.

A policy of requiring infected (but not infectious) clients to undergo TB prophylaxis as a condition of receiving alcohol or other drug treatment could therefore make an AOD program vulnerable to a charge of discrimination against individuals with the disability of TB infection in violation of the Rehabilitation Act and the ADA.

Q No. 2: Is it legal for AOD programs to have policies that require as a condition of admission or continuation in AOD treatment that individuals with active TB disease undergo treatment for their TB?

A No. 2: For most programs, using the analysis set out before, the answer is likely to be "yes." Because individuals with active, untreated TB disease are -- or are likely to become -- infectious to others, a program could justifiably decide that such patients pose a significant risk to themselves and others. If no reasonable accommodations can be made to eliminate that risk -- and, indeed, conditioning such patients' participation in AOD treatment on their agreeing to be treated for TB is perhaps the best way to address that risk -- then a policy of requiring clients with active TB to undergo TB treatment in order to receive or remain in treatment would not violate the Federal antidiscrimination laws.

However, an AOD program cannot force a client to take TB medication if the client does not consent because, again, individuals generally have the right to make medical care decisions for themselves. Should a client with active TB refuse to undergo TB treatment, the AOD program would be faced with a very real dilemma. It could enforce its (legally defensible) policy by denying the client further substance abuse treatment services; or it could allow an individual who poses a very real risk to both his own and others' health to continue receiving the AOD services he or she also needs -- services that may in fact offer the best hope there is to enable him or her to get the TB care he or she needs as well. One possible solution to this dilemma might be to arrange for the patient's voluntary transfer to another AOD program that is willing and able to deal with his or her need for both AOD and TB care.

(A State's TB control law may authorize the compulsory commitment of individuals with TB who pose a threat to the health or safety of others, and may permit such individuals to be detained unless and until they undergo treatment. But the authority to do this is generally left in the hands of the public health authorities and/or the courts -- not individual health care providers. An AOD provider that decides to refuse admission to or to discharge a client who refuses to undergo or comply with needed TB therapy has the option of notifying the public health authorities of this fact, but it must do so in a way that complies with the Federal AOD confidentiality law and regulations. See chapter 4 for a discussion of this issue.)

Q No. 3: Is it legal for AOD programs to have policies that require as a condition of receiving and/or continuing in AOD treatment that an applicant or client with a prior history of TB disease (who completed TB treatment) undergo TB prophylaxis?

A No. 3: No. For the same reasons a policy requiring TB-infected clients to undergo prophylaxis would be subject to legal challenge, a policy requiring those with a history of TB that has been successfully resolved to undergo preventive therapy could also be challenged on the grounds that (1) it interferes with the right of individuals to make medical treatment decisions for themselves, and (2) it discriminates against individuals on the basis of a disability (a record of TB) that does not prevent them from satisfying the essential eligibility criteria for participation in AOD treatment and does not pose a significant risk to others in the program.

Q No. 4:Is it legal for AOD programs to have policies that require as a condition of receiving and/or continuing in AOD treatment that an applicant or client with a history of TB disease (and incomplete TB treatment) undergo TB treatment?

A No. 4:Yes, at least for those with active disease. If the program suspects that due to incomplete treatment the client may still have active disease, the program may require the person to be tested to determine whether active disease is present and, if so, may give the client the choices outlined in answers to Question No. 2. If the client is not currently diagnosed as having active TB, the program may not have a policy requiring such individuals to undergo TB treatment.

Q:If a client is participating successfully in AOD treatment and is known to have latent TB infection of a history of prior active disease, is it legal for the AOD program to require, as a condition of remaining in the program, that the client undergo periodic examinations to determine if he or she has progressed to active TB?

A:Yes, assuming that such diagnostic medical examinations are justifiable because they can be shown to be necessary for the provision of AOD services and/or the safe operation of the AOD program, such a policy would not violate the antidiscrimination provisions of the Rehabilitation Act or the ADA. A medical monitoring program designed to identify those TB-infected patients who are currently at high risk of and/or showing symptoms of (re)developing active, infectious TB could well be justifiable under the standards discussed in Question No. 2.

Q: Does an AOD program have any obligation to monitor a patient's compliance with TB treatment rendered outside the AOD program?

A: No Federal law specifically addresses this question. However, as noted in chapter 4, IV.B, the Federal Centers for Disease Control and Prevention (CDC) guidelines and Occupational Safety and Health Administration (OSHA) enforcement rules for preventing and controlling the transmission of TB in health care settings -- including at least certain substance abuse treatment programs -- stress the importance of implementing TB control policies that, among other things, will enable such providers to identify and monitor the treatment of clients and staff with or at risk for active TB disease. While it is not altogether clear that these Federal guidelines and enforcement rules create an absolute or enforceable legal duty on the part of AOD programs to monitor their clients' TB status and treatment -- wherever that TB care may be provided -- doing so would certainly be prudent from a practical as well as a legal point of view.

In light of this, it would clearly be permissible for an AOD program to require a client receiving TB treatment elsewhere to tell (or allow) his or her TB treatment provider to communicate with the AOD program regarding the client's compliance with TB treatment.

Q: Do AOD programs have a legal obligation to report a client's noncompliance with TB treatment provided by the AOD program itself?

A: The answer depends on State law, which varies. Some State (and local) public health/TB control laws impose on health care providers who diagnose and treat an individual for TB a continuing obligation to report the patient's progress in treatment -- and compliance with or failure to comply with the prescribed treatment -- to the local and/or State public health/TB control authorities. AOD programs serving as their clients' TB treatment providers in these States will have a legal duty to make these mandated reports. (Chapter 4 discusses the various ways that AOD providers who have such reporting obligations can fulfill their State-law duties without violating the Federal AOD confidentiality law and regulations.)

Q: If AOD programs are supposed to report all cases of active, infectious TB to public health officials, won't that violate our clients' right to confidentiality?

A: Not if you follow the guidelines outlined in chapter 4. You can and should report active, infectious TB cases to public health officials by obtaining patient consent or by drawing up a qualified service organization agreement (QSOA) that limits where that information is going and for what purpose. (A sample QSOA may be found in appendix C.)

Q:Are AOD providers obligated to inform potential clients that there may be individuals who are TB-infected or undergoing treatment for active TB on the premises?

A:Not in such ominous terms. AOD providers can explain that in accordance with the Federal Block Grant Mandate, they are required to provide TB services to all clients.