(1) An order or restrictive measure directed to a person with a sexually transmitted infection must only be used as the last resort when other measures to protect the public health have failed, including all reasonable efforts, which must be documented, to obtain the voluntary cooperation of the person who may be subject to the order or restrictive measure. The order or restrictive measure must be applied serially with the least intrusive measures used first. The state department or local public health agency has the burden of proof to show that specified grounds exist for the issuance of the order or restrictive measure and that the terms and conditions imposed are no more restrictive than necessary to protect the public health.
(2) When the executive director or the local director, within his or her respective jurisdiction, knows or has reason to believe, because of evidence-based, medical, or epidemiological information, that a person has a sexually transmitted infection and poses a credible risk to the public health, he or she may issue an order to:
Require the person to be examined and tested to determine whether he or she hasacquired a sexually transmitted infection;
Require him or her to report to a qualified health care provider for counseling regarding sexually transmitted infections, information on treatment, and how to avoid transmitting sexually transmitted infections to others; or
Direct a person with a sexually transmitted infection to cease and desist from specificconduct that poses risks to the public health, but only if the executive director or local director has determined that clear and convincing evidence exists to believe that such person has been ordered to report for counseling or has received counseling by a qualified health care provider and continues to demonstrate behavior that poses an evidence-based risk to the public health.
(3) (a) If a person violates a cease-and-desist order issued pursuant to paragraph (c) of subsection (2) of this section and it is shown that the person poses an evidence-based risk to the public health, the executive director or the local director may enforce the cease-and-desist order by imposing such restrictions upon the person as are necessary to prevent the specific conduct that risks the public health. Restrictions may include required participation in evaluative, therapeutic, and counseling programs.
Any restriction must be in writing, setting forth the name of the person to be restricted; the initial period of time that the restrictive order is effective, not to exceed three months; the terms of the restrictions; and any other conditions necessary to protect the public health. Restrictions must be imposed in the least restrictive manner necessary to protect the public health.
The executive director or local director who issues an order pursuant to this subsection (3) shall review petitions for reconsideration from the person affected by the order. Restriction orders issued by local directors shall be submitted for review and approval by the executive director.
(4) (a) (I) Upon the issuance of an order by the state department or a local public health agency pursuant to subsection (2) or (3) of this section, the state department or local public health agency shall give notice promptly, personally, and confidentially to the person who is the subject of the order. The notice must state the grounds and provisions of the order and notify the person who is the subject of the order that he or she has the right to refuse to comply with the order, that he or she has the right to be present at a judicial hearing in the district court to review the order, and that he or she may have an attorney appear on his or her behalf at the hearing. If a respondent to any such action cannot afford an attorney, one shall be appointed for him or her at the commencement of the court process.
If the person who is the subject of the order refuses to comply with the order andrefuses to voluntarily cooperate with the executive director or local director, the executive director or local director may petition the district court for an order of compliance with the order. The executive director or local director shall request that the county or city and county attorney, or district public health agency, file such petition in the district court. However, if the county or city and county attorney, or district public health agency, refuses to act, the executive director may file such petition and be represented by the attorney general.
If an order of compliance is requested, the court shall hear the matter within fourteen days following the request. Notice of the place, date, and time of the hearing must be by personal service or, if the person who is the subject of the order is not available, mailed by prepaid certified mail, return receipt requested, at the person's last-known address. Proof of mailing by the state department or local public health agency is sufficient notice under this section. The state department or local public health agency has the burden of proof to show by clear and convincing evidence that the specified grounds exist for the issuance of the order, the need for compliance, and the terms and conditions imposed in the order are no more restrictive than necessary to protect the public health.
An officer or employee of the state department or a local public health agency mustnot be examined in any judicial, legislative, executive, or other proceedings as to the existence or content of any individual's report, other than the respondent in a proceeding authorized by this section, made by such department or agency pursuant to this part 4; the existence of the content of the reports received pursuant to section 25-4-405; or the result of an investigation conducted pursuant to section 25-4-408.
Upon the conclusion of the hearing, the court shall issue appropriate orders affirming, modifying, or dismissing the original order.
(b) If the executive director or local director does not petition the district court for an order of compliance within thirty days after the person who is the subject of the order refuses to comply, the person may petition the district court for dismissal of the order. If the district court dismisses the order, the fact that the order was issued must be expunged from the records of the state department or the local public health agency.
(5) Any hearing conducted pursuant to this section must be closed and confidential, and any transcripts or records related to the hearing are also confidential.
Source: L. 2016: Entire part R&RE, (SB 16-146), ch. 230, p. 905, § 1, effective July 1. L. 2017: (4)(a)(IV) amended, (SB 17-294), ch. 264, p. 1408, § 85, effective May 25.
Editor's note: This section is similar to former §§ 25-4-406 (1) and 25-4-1406 as they existed prior to 2016.