HOUSE BILL NO. 428
AS AMENDED BY HOUSE AMENDMENT NO. 1
AN ACT TO AMEND CHAPTER 11, TITLE 16 OF THE DELAWARE CODE RELATING TO THE PUBLIC HEALTH AND SAFETY, AND PROVIDING FOR A UNIFORM ALCOHOLISM AND INTOXICATION TREATMENT ACT.
WHEREAS, alcoholism is a medical-social problem which cannot be dealt with under the provisions of criminal law but should be dealt with by the instrumentalities of education and public and mental health; and
WHEREAS, those who chronically, habitually, or periodically use alcoholic beverages to the extent that they injure their health or substantially interfere with their social or economic functioning, have in recent years increased in number; and
WHEREAS, the purpose of this Act is:
(a) to establish a comprehensive program for the prevention of alcoholism and the rehabilitation of alcoholics;
(b) to provide for medical, and other treatment of alcoholics so as to assure that every such person who is in need of treatment and who seeks the same is afforded full opportunity for such care as may be necessary to restore him to adequate functioning;
(c) to establish methods of handling intoxicated persons that will be beneficial to them and will more fully protect them and the public;
(d) to promote research activities on the risks of intoxication and the dangers of alcoholism; and
(e) to disseminate information on alcohol-related programs in programs of public education.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Title 16 of the Delaware Code by adding thereto a new chapter, designated as Chapter 22, which new Chapter shall read as follows:
"CHAPTER 22. UNIFORM ALCOHOLISM AND INTOXICATION TREATMENT ACT
§2201. Declaration of Policy
This Chapter is designed to provide proper treatment for those who have been habitually misusing alcohol as a beverage. It is the policy of this State that alcoholics and intoxicated persons may not be subject to criminal prosecution because of their consumption of alcoholic beverages, but rather should be afforded a continuum of treatment in order that they may lead normal lives as productive members of society.
§2202. Establishment of Bureau of Alcoholism and Drug Abuse
There is hereby established a bureau of Alcoholism and Drug Abuse within the Department of Health and Social Services.
For purposes of this Chapter, the following words and phrases, unless otherwise indicated, shall be deemed to have the following meanings:
(1) 'Alcoholic' means any person who chronically, habitually or periodically uses alcoholic beverages to the extent that they injure his health or substantially interfere with his social or economic health.
(2) 'Approved private treatment facility' shall mean a private agency providing facilities for the care or lodging of alcoholic, which meets the standards prescribed in this Chapter for the treatment of alcoholics or intoxicated persons or persons incapacitated by alcohol.
(3) 'Approved public treatment facility' means a treatment agency operating under the direction and control of the Department or providing treatment under this Act through a contract with an agency of the Department in accordance with 52208 of this Chapter.
(4) 'Secretary' means the Secretary of the Department of Health and Social Services.
(5) 'Department' means the Department of Health and Social Services.
(6) 'Director' means the Director of the Division of Mental Health.
(7) 'Division' means the Division of Mental Health.
(8) 'Bureau' means Bureau of Alcoholism and Drug Abuse.
(9) 'Incapacitated by alcohol' means that a person as a result of the use of alcohol, is unconscious or has his judgment otherwise so impaired that he Is incapable of realizing and making a rational decision as to his need for treatment. Incapacitated by alcohol' may be determined by evidence of extreme debilitation, physical harm or threats to others, or chronic inability to hold regular employment.
(10) Incompetent person' means a person who has been adjudged incompetent by an appropriate State court.
(11) 'Intoxicated person' means a person whose mental or physical functioning is substantially impaired as a result of the use of alcohol.
(12) 'Patient' shall mean a person who is an informal patient, a voluntary patient, a proposed patient, or an involuntary patient.
(13) 'Treatment' means the broad range of emergency, out-patient, intermediate, and in-patient and emergency services and care, including diagnostic evaluation, medical, psychiatric, psychological, and social service care, vocational rehabilitation and career counseling, which may be extended to alcoholics and intoxicated persons.
(14) 'working day' means all days other than Saturdays, Sundays and legal holidays.
(15) 'Chief' shall mean administrator of the Bureau of Alcoholism and Drug Abuse."
§2204. Powers of Bureau The Bureau may:
(1) plan for, establish, amend, and revise standards for treatment programs when necessary or desirable;
(2) make contracts necessary or incidental to the performance of its duties and the execution of its powers;
(3) solicit and accept for use any money, real property or personal property made by Will or otherwise, and any grant of money, services or property from the Federal government, the State, or any political subdivision thereof or any private source, and do all things necessary to cooperate with the Federal government or any of its agencies in making an application for any grants;
(4) administer or supervise the administration of the provisions relating to alcoholics and intoxicated persons of any State plan submitted for Federal funding pursuant to Federal health, welfare or treatment legislation;
(5) coordinate its activities and cooperate with alcoholism programs in this and other states, and make contracts and other joint or cooperative arrangements with State, local, or private agencies in this and other States for the treatment of alcoholics, persons incapacitated by alcohol, and Intoxicated persons;
(6) keep records and engage in the gathering of relevant statistics;
(7) do other acts and things necessary to execute the authority expressly granted to it; and
(8) acquire, hold, or dispose of real property or any interest therein, and construct, lease, or otherwise provide treatment facilities for alcoholics and intoxicated persons.
§2205. Duties of Bureau The Bureau shall:
(1) develop, encourage, and foster statewide, regional, and local plans and programs for the prevention of alcoholism and treatment of alcoholics and intoxicated persons In cooperation with public and private agencies, organizations, and individuals, and provide technical assistance and consultation services for these purposes;
(2) coordinate the efforts and enlist the assistance of all public and private agencies, organizations and individuals interested in the prevention of alcoholism and treatment of alcoholics and intoxicated persons;
(3) cooperate with the Department of Public Safety and the Division of Adult Corrections in establishing and conducting programs to provide treatment for alcoholics and intoxicated persons who are arrested or who are on parole from penal institutions.
(4) cooperate with the Department of Public Instruction, the State Board of Education, schools, police departments, courts, and other public and private agencies, organizations and individuals in establishing programs for the prevention of alcoholism and treatment of alcoholics and intoxicated persons, in preparing curriculum materials thereon for use at all levels of school education;
(5) prepare, publish, evaluate, and disseminate educational material dealing with the nature and effects of alcohol;
(6) develop and implement, as an integral part of treatment programs, an educational program for use in the treatment of alcoholics and intoxicated persons, which program shall include the dissemination of information concerning the nature and effects of alcohol;
(7) organize and foster training programs for all persons engaged in treatment of alcoholics and intoxicated persons;
(8) sponsor and encourage research into the causes and nature of alcoholism and treatment of alcoholics and intoxicated persons, and serve as a clearing-house for information relating to alcoholism;
(9) specify uniform methods for keeping statistical information by public and private agencies, organizations, and individuals, and collect and make available relevant statistical information, including number of persons treated, nature of treatment, frequency of admission and readmission, and frequency and duration of treatment;
(10) advise the Governor in the preparation of a comprehensive plan for treatment of alcoholics and intoxicated persons for inclusion into a State comprehensive health plan;
(11) review all State health, welfare and treatment plans relating to alcoholism;
(12) assist in the development of, and cooperation with, alcohol education and treatment plans for employees of State and local governments and businesses and industries in the State;
(13) utilize the support and assistance of interested persons in the community, particularly recovered alcoholics, to encourage alcoholics voluntarily to undergo treatment;
(14) cooperate with the Secretary of the Department of Public Safety and the Secretary of the Department of Highways and Transportation in establishing and conducting programs designed to deal with the problem of persons operating motor vehicles while under the influence of intoxicating liquor;
(15) encourage hospitals and other health facilities to admit such alcoholics and intoxicated persons as is within their capabilities to treat;
(16) encourage all health and disability insurance programs to include alcoholism as a covered illness; and
(17) submit to the Governor and General Assembly an annual report covering the activities of the Office.
§2206. Advisory Council on Alcoholism
The Governor shall appoint an Advisory Council on Alcoholism, composed of fifteen (IS) members. The members shall serve for overlapping terms of three (3) years each, one-third of the members first appointed shall be appointed for one (I), two (2) and three (3) year terms respectively. Members shall have professional, research, or personal interest in alcoholism problems. The Council shall meet at least once every three (3) months and report on its activities and make recommendations to the Governor at least once a year.
The Council shall advise the Bureau on the broad policies, goals, and operation of the alcoholism program and other matters referred to the Council, and shall encourage public understanding and support of the alcoholism program.
Members of the Council shall serve without compensation but may receive reimbursement for travel and other necessary expenses actually incurred in the performance of their duties.
§2207. Comprehensive Program for Treatment
(a) The Bureau shall establish a comprehensive and coordinated program for the treatment of alcoholic and intoxicated persons. Subject to the approval of the Secretary of the Department of Health and Social Services, the Office may divide the State into appropriate regions for the conduct of the program and establish
standards for the development of the program on a regional level. In establishing the regions, consideration shall be given to any existing regional organization being utilized by other State agencies engaged in the delivery of health care. When feasible, programs shall be established with maximum local community involvement.
(b) The Bureau shall initiate a program which will include:
(1) emergency treatment provided by a facility affiliated with or part of the medical services of a general hospital.
(2) in-patient treatment;
(3) intermediate treatment; and
(4) out-patient and follow-up treatment.
(c) The Bureau shall provide for adequate and appropriate treatment for alcoholics and intoxicated persons admitted under S2210 through 52213 within the limits of available State and Federal funds.
(d) The Bureau shall have the ultimate responsibility to maintain, supervise and control their facilities subject to policies of the Department.
(e) All appropriate public and private resources shall be coordinated with and utilized in the program, if possible. The Bureau shall prepare, publish and distribute annually a list of all approved public and private treatment facilities.
(f) The Bureau may not contract for the use of any facility as an approved public treatment facility unless said facility is under the supervision of the Department of Health and Social Services and its Director, subject to the policies of the Department, considers such contract to be an effective and economical course to follow.
§2208. Standards for Public and Private Treatment Facilities
(a) The Bureau shall establish standards for approved treatment facilities that must be met for a treatment facility to be approved as a public or private treatment facility, and fix the fees to be charged by the Bureau for the required Inspections. The standards may concern the health standards to be met and the standards of services and treatment to be afforded patients.
(b) The Bureau periodically shall inspect approved public and private treatment facilities at reasonable times and in a reasonable manner.
(c) The Bureau shall maintain a list of approved public and private treatment facilities.
(d) Each approved public and private treatment facility shall file with the Bureau on request, data, statistics, schedule and information the Bureau reasonably requires. An approved public or private treatment facility that without good cause fails to furnish any data, statistics, schedules, or information as requested or files fraudulent returns thereof, may be removed from the list of approved treatment facilities, and its approval revoked or suspended.
(e) The Bureau, with or without a hearing, may suspend, revoke, limit, or restrict an approval, or refuse to grant an approval, for failure to meet the provisions of this Chapter or the standards established thereunder.
(f) The Superior Court may restrain any violation of this section, review any denial, restriction or revocation of approval, and grant other relief required to enforce its provisions.
(a) The Bureau may at reasonable times enter and inspect and examine the books and accounts of any approved public or private treatment facility which
does not give its consent to inspection or examination by the Bureau or which the Bureau has reasonable cause to believe is operating in violation of the provisions of this Chapter.
§2209. Acceptance for Treatment
The Bureau may adopt and may amend and repeal rules for acceptance of persons into the treatment program, considering available treatment resources and facilities, for the purpose of early and effective treatment of alcoholism, persons incapacitated by alcohol, and intoxicated persons. In establishing the rules the Bureau shall be guided by the following standards:
(a) If possible, a patient shall be treated on a voluntary rather than an involuntary basis.
(b) A patient shall be initially assigned or transferred to out-patient or intermediate rather than in-patient care, unless he is found to require in-patient care for medical reasons, or unless he is found to be likely to inflict physical harm on others if not admitted.
(c) A person shall not be deified treatment solely because he has withdrawn from treatment against medical advice on a prior occasion or because he has relapsed after earlier treatment.
(d) An individualized treatment plan shall be prepared and maintained on a current basis for each patient.
(e) Provision shall be made for a continuum of coordinated treatment services, so that a person who leaves a facility or a form of treatment will have available and utilize other appropriate treatment.
§2210. Voluntary Treatment of Alcoholics; Minors and Incompetent Persons
(a) An alcoholic may waive any of the rights to due process provided in this Chapter by applying for voluntary treatment directly to an approved public treatment facility. If the applicant is an incompetent person, or a minor under twelve (12) years of age, a parent, custodian or legal guardian may make the application for voluntary treatment.
(b) A minor twelve (12) years of age or over who professes to be an alcoholic may give written consent to an approved public treatment facility for voluntary treatment of his alcoholism. Consent so given by a minor twelve (12) years of age or over shall, notwithstanding his minority, be valid and legally effective for all purposes, regardless of whether such minor's alcoholism is subsequently medically confirmed, and shall be binding upon such minor, his parents, custodian and legal guardians as effectively as if the minor were of full legal age at the time of giving such written consent. Consent so given shall not be subject to later disaffirmance or disclaimer by reason of such minority; and the consent of no other person or court shall be necessary for the treatment rendered such minor; provided, however, the voluntariness of such consent may be challenged by a parent, custodian or legal guardian in a court of competent jurisdiction. A minor twelve (12) years of age or over who does not consent to voluntary treatment is subject to the involuntary commitment provision provided by this Chapter.
(c) Subject to rules adopted by the Chief of Bureau, or person in charge of an approved public treatment facility may determine who shall be admitted for treatment. If a person is refused admission to an approved public treatment facility, the Bureau, subject to the rules adopted by the Chief, shall refer the person to another approved public treatment facility for treatment if possible and appropriate.
(a) If a patient receiving in-patient care leaves an approved public treatment facility, he shall be encouraged to consent to appropriate out-patient or Intermediate treatment. If it appears to the Chief of Bureau that the patient is an alcoholic who requires help, the Bureau may arrange for assistance in obtaining supportive services and residential facilities.
(e) If a patient leaves an approved public treatment facility, with or against the advice of the person in charge of the facility, the Bureau may make reasonable provisions for his transportation to another facility or to his home. If he has no home, he shall be assisted in obtaining shelter. If he is a minor or an incompetent person the request for discharge from an in-patient facility shall be made by a parent, legal guardian, or other legal representative or by the minor or incompetent if he was the original applicant.
§2211. Treatment and Services for Intoxicated Persons
(a) An Intoxicated person may come voluntarily to an approved public treatment facility for emergency treatment. A person who appears to be intoxicated in a public place and to be in need of help, if he consent to the preferred help, may be assisted to his home, an approved public treatment facility, or an approved private treatment facility, whichever he may choose, by a law enforcement officer.
(b) Any person incapacitated by alcohol except where apprehended under a criminal charge, shall be taken into protective custody, and forthwith brought to an approved public treatment facility for emergency treatment. If no approved public treatment facility is readily available he shall be taken to an emergency medical service customarily used for incapacitated persons. The police, in detaining the person and in taking him to an approved public treatment facility, is taking him into protective custody and shall make every reasonable effort to protect his health and safety. In taking the person into protective custody, the detaining officer may take reasonable steps to protect himself. A taking into protective custody under this section is not an arrest. Unless such person has been taken into custody for a charge other than simple alcoholism or public intoxication, no entry or other record shall be made to indicate that the person has been arrested or charged with a crime.
(c) A person who comes voluntarily or is brought to an approved public treatment facility shall be examined by a qualified person under the supervision of a licensed physician as soon as possible. He may then be admitted as a patient or referred to another health facility. The referring approved public treatment facility shall arrange for his transportation.
(d) A person who by medical examination is found to be incapacitated by alcohol at the time of his admission or to have become incapacitated at the time after his admission, may not be involuntarily detained at the facility if:
(1) when he is no longer incapacitated by alcohol or
(2) if he remains incapacitated by alcohol more than forty-eight (48) hours after admission as a patient, unless he is committed under §2212 of this Chapter.
A person may consent to remain in the facility as long as the physician In charge believes appropriate.
(e) A person who is not admitted to an approved public treatment facility, is not referred to another health facility, and has no funds, may be taken to his home, if any. If he has no home, the approved public treatment facility shall assist him in obtaining shelter.
(f) Law enforcement officers who act in compliance with this section are acting in the course of their official duty and are not criminally or civilly liable therefor. If a licensed physician and the administrator in charge of the approved public treatment facility determine it is for the patient's benefit, based on a medical examination by the physician, the patient shall be encouraged to agree to further diagnosis and appropriate voluntary treatment.
§2212. Emergency Commitment
(a) 1n intoxicated person who has threatened, attempted, or inflicted physical harm on himself or on another person or property and is likely to inflict physical harm on himself or on another person or property unless committed, or is incapacitated by alcohol and in need of immediate emergency treatment and care may be committed to an approved public treatment facility for emergency treatment. The refusal to undergo treatinet does not in itself constitute evidence of lack of judgment as to the need for treatment.
(h) A physician, spouse, guardian or relative of the person to be committed, or any other responsible person, may make a written application for commitment under this section, directed to the administrator of the approved public treatment facility. The application shall state the facts to support the need for emergency treatment and be accompanied by the certificate of a certifying physician stating that the physician has examined the person sought to be committed, within two (2) days before the certificate's date, and the facts supporting such need for emergency treatment. The certifying physician shall be someone other than the person making the written application for commitment.
(e) Upon approval of the application by the administrator in charge of the approved public treatment facility, the person shall be brought to the facility by a peace officer, health officer, the applicant for commitment, the patient's spouse, the patient's guardian, or any other interested person. The person shall be retained at the facility to which he was admitted, or transferred to another appropriate public or private treatment facility, until discharged under the provisions of this section. llowever, no person may be detained under this section for more than two working days unless a Family Court or State Superior Court judge has reviewed and approved the commitment application.
(d) The administrator in charge of an approved public treatment facility shall refuse an application if in his opinion the application and certificate fail to sustain the grounds for commitment.
(e) When on the advice of the medical staff the administrator determines that the grounds for commitment no longer exist, he shall discharge a person committed under this section. No person committed under this section may be detained in any treatment facility for more than five (5) days. If a petition for involuntary commitment under $2215 of this Chapter has been filed within the five (5) days and the administrator in charge of the approved public treatment facility finds that grounds for emergency commitment still exist, he may detain the person until the petition has been heard and determined, but no longer than ten (to) days after filing the petition.
(f) A copy of the written application for commitment and of the physician's certificate, and a written explanation of the person's right to counsel, shall be given to the person within twenty-four (24) hours after commitment by the administrator, who shall provide a reasonable opportunity for the person to consult counsel.
§2213. Involuntary Commitment of Alcoholics
(a) A person may be committed to custody of the Bureau by the Superior Court, or Family Court, upon the petition of his spouse or guardian, a relative, the certifying physician, or the administrator in charge of any approved public treatment facility. The petition shall allege that the person is an alcoholic who habitually lacks self control as to the use of alcoholic beverages and that he:
(1) has threatened, attempted, or inflicted physical harm on himself and that unless committed he is likely to inflict physical harm on himself or
(2) is Incapacitated by alcohol. A refusal to undergo treatment does not in itself constitute evidence of lack
of judgement as to the need for treatment. The petition shall be accompanied by a certificate of a licensed physician who has examined the person within two (2) days before submission of the petition, unless the person whose commitment is sought has refused to submit to a medical examination, in which ease the fact of refusal shall be alleged in the petition. The certificate shall set forth the physician's findings in support of the allegations of the petition. A physician employed by the admitting facility or the Bureau is not eligible to be the certifying physician.
(b) Upon filing the petition, the court shall fix a date for a hearing not less than five (5) days nor more than ten (10) days after the filing of the petition, provided that the court may, upon motion of the person whose commitment is sought, and upon good cause shown, extend the date for the hearing. A copy of the petition and of the Notice of Hearing, including the date fixed by the court, shall be served upon the petitioner, the person whose commitment is sought, his next of kin other than the petitioner, a parent or his legal guardian if he is a minor, the administrator in charge of the approved public treatment facility to which he has been committed for emergency care, and any other person the court believes advisable. A copy of the petition and certificate shall be delivered to each person notified.
(e) At the hearing the court shall hear all relevant testimony, including, if possible, the testimony of at least one licensed physician who has examined the person whose commitment is sought. The person shall be present unless the court believes that his presence is likely to be injurious to him; in this event the court shall appoint a guardian ad litem to represent him throughout the proceeding. The court shall examine the person whose commitment is sought in open court, or, if advisable, shall examine the person out of the courtroom. If the person has refused to be examined by a court-appointed licensed physician. If he refuses and there is sufficient evidence to believe that the allegations of the petition are true, or if the court believes that more medical evidence is necessary, the court may make a temporary order committing him to the Bureau for a period of not more than five (5) days for purposes of a diagnostic examination.
(d) If after hearing all relevant evidence, including the results of any diagnostic examination by the Bureau, the court finds that grounds for involuntary commitment have been established by clear and convincing proof, it shall make an Order of Commitment to the Bureau. It shall not order commitment of a person unless it determines that the Bureau is able to provide adequate and appropriate treatment for him and the treatment is likely to be beneficial.
(e) A person committed under this section shall remain in the custody of the Bureau for treatment for a period of thirty (30) days unless sooner discharged. At the end of the thirty-day period, he shall be discharged automatically unless the Bureau before expiration of the period obtains a court Order for his recommitment upon the grounds set forth in subsection (a) of this section for a further period of ninety (90) days unless sooner discharged. If a person has been committed because he is an alcoholic likely to inflict physical harm on another, the Bureau shall apply for recommitment if after examination it is determined that the likelihood still exists.
(f) A person recommitted under subsection (e) of this section who has not been discharged by the Bureau before the end of the ninety-day period shall be discharged at the expiration of that period unless the Bureau, before expiration of the period, obtains a court Order on the grounds set forth in subsection (a) for recommitment for a further period not to exceed ninety (90) days. If a person has been committed because he is an alcoholic likely to inflict physical harm on another, the Bureau shall apply for a recommitment if after examination it is determined that the likelihood still exists. Only two Recommitment Orders under subsection (e) and subsection (f) of this section are permitted.
(g) Upon the filing of a petition for recommitment under subsection (e) or subsection (f), the court shall fix a date for hearing not less than five (5) nor more than ten (10) days after the filing of the petition, provided that the court, upon motion of the person whose commitment is being sought and upon good cause
shown, may extend the date for the hearing. A copy of the petition and of the Notice of Hearing, including the date fixed by the court, shall be served on the petitioner, the person whose commitment is sought, his next of kin other than the petitioner, the original petitioner under subsection (a) if different from the petitioner for recommitment, one of his parents or his legal guardian if he is a minor, and any other person the court believes advisable. At the hearing the court shall proceed as provided in subsection (c) of this section.
(h) The Bureau shall provide for adequate and appropriate treatment of a person committed to its custody. The Bureau may transfer any person committed to its custody from one approved public treatment facility to another if transfer is medically advisable.
(i) A person committed to the custody of a facility for treatment may be discharged at any time before the end of the period for which he has been committed, and he shall be discharged by Order of the court if either of the following conditions are met:
(I) in case of an alcoholic committed on the grounds of likelihood of infliction of physical harm upon another, or further treatment will not be likely to bring about significant improvement in the person's condition, or treatment is no longer adequate or appropriate.
(2) in case of an alcoholic committed on the grounds of the need of treatment and incapacity, that the incapacity no longer exists, further treatment will not be likely to bring about significant improvement in the person's condition, or treatment is no longer adequate or appropriate.
(j) The court shall inform the person whose commitment or recommitment is sought of his right to contest the application, be represented by counsel at every stage of the proceedings relating to his commitment arid recommitment, and have counsel appointed by the court or provided by the court, if he wants the assistance of counsel and is unable to obtain counsel. If the court believes that the person needs the assistance of counsel, the court shall require, by appointment if necessary, counsel for him regardless of his wishes. The person whose commitment or recommitment is sought shall be Informed of his right to be examined by a licensed physician of his choice. If the person is unable to obtain a licensed physician and requests examination by a physician, the court shall employ a licensed physician.
(k) If a competent patient in a public treatment facility or his parent, sibling, adult child, or guardian requests the transfer of such patient to another public or private treatment facility and the facility agrees with such request, the administrator of the facility having custody over such patient shall transfer him to the requested public or private treatment facility.
(I) A person committed under this Act may at any time seek to be discharged from commitment by writ of habeas corpus. The venue for proceedings under this section is the county in which the person to be committed resides or is present if such person has no residence.
(m) Any party aggrieved by any action taken under the provisions of this section may appeal to the Supreme Court.
§2214. Records of Alcoholic and Intoxicated Persons
The registration and other records of treatment facilities shall remain confidential in accordance with Federal Regulation 42 CFR; Part II and are privileged to the patient.
Notwithstanding other provisions of this Act, the Bureau may make available information from patients' records for purposes of research into the causes and treatment of alcoholism. Information under this subsection shall not be published in a way that discloses patients' names or other identifying information.
§2215. Visitation and Communication of Patients
Subject to reasonable rules regarding hours of visitation which the Bureau Chief may adopt, patients in any approved treatment facility shall be granted opportunities for adequate consultation with counsel, and for continuing contact with family and friends consistent with an effective treatment program.
Neither mail nor other communications to or from a patient in any approved treatment facility may be intercepted, read, or censored. The Bureau may adopt reasonable rules concerning the use of the telephones by patients in approved treatment facilities.
§2216. Payment for Treatment
If treatment is provided by an approved public treatment facility and the patient has not paid the charge therefor the Bureau is entitled to:
(a) any payment received by the patient or to which he may be entitled because of the services rendered, and
(b) from any public or private source available to the Bureau because of the treatment provided to the patient.
A patient in an approved treatment facility, or the estate of the patient, or a person obligated to provide for the cost of treatment and having sufficient financial ability, is liable to the Bureau for costs of maintenance and treatment of the patient therein in accordance with the rate established.
The Chief shalt adopt rules governing financial ability that take into consideration the income, savings, insurance, and other personal and real property of the person require to pay, and any support being furnished by him to any person he is required by law to support.
§2217. Criminal Laws Limitations
No county, municipality, or other political subdivision shall adopt or enforce a local law, ordinance, resolution, or rule having the force of law that includes drinking, being a common drunkard, or being found in an intoxicated condition as one of the elements of the offense giving rise to a criminal penalty or sanction. No county, municipality, or other political subdivision may interpret or apply any law of general application to circumvent the provisions of this section.
Nothing in this Chapter shall affect any law, ordinance, resolution, or rule against operating or having a motor vehicle under his physical control or regarding the sale, purchase, dispensing, possessing or use of alcoholic beverages at stated times and places or by n particular class of persons.
§2218. Application of Administrative Procedure Act
Except as otherwise provided in this Act, the State Administrative Procedure Act applies to and governs all administrative actions taken by the Chief.
§2219. Applicability and Scope
Sections 2220 and 2221 apply to the Chief and prescribes the procedures to be observed by him in exercising his powers under this Act.
§2220. Public Information; Adoption of Rules; Availability of Rules and Orders
(a) In addition to other rulemaking requirements imposed by law, the Chief shall:
(I) Adopt as a rule a description of the organization of his office, stating the general course and method of the operations of his office and methods whereby the public may obtain information or make submissions or requests;
(2) Adopt rules of practice setting forth the nature and requirements of all formal and informal procedures available, including a description of all forms and instructions used by the Chief or the Bureau;
(3) Make available for public inspection all rules and all other written statements of policy or interpretations formulated, adopted, or used by the Chief in the discharge of his functions; and
(4) Make available for public inspection all final orders, decisions, and opinions.
(b) No rule, order, or decision of the Chief is effective against any person or party, nor may it be invoked by the Chief for any purpose, until it has been made available for public inspection as herein required. This provision is not applicable in favor of any person or party who has knowledge thereof.
§2221. Procedure for Adoption of Rules
(a) Prior to the adoption, amendment, or repeal of any rule, the Chief shall:
(1) Give at least twenty (20) days' notice of his intended action. The notice shall include a statement of either the terms or substance of the intended action or a description of the subjects and issues involved, and the time when, the place where, and the manner in which interested persons may present their view thereon. The notice shall be mailed to all persons who have made timely request of the Chief for advance notice of his rulemaking proceedings and shall be published in a newspaper of statewide circulation; and
(2) Afford all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing. In case of substantive rules, opportunity for oral hearing must be granted if requested by twenty-five 25) persons, by a governmental subdivision or agency, or by an association having not less than twenty-five (25) members. The Chief shall consider fully all written and oral submissions respecting the proposed rule. Upon adoption of a rule the Chief, if requested to do so by an interested person either prior to adoption or within thirty (30) days thereafter, shall issue a concise statement of the principal reasons for and against its adoption, incorporating therein his reasons for over-ruling the considerations urged against its adoption.
(b) No rule is valid unless adopted in substantial compliance with this section. A proceeding to contest any rule on the ground of non-compliance with the procedural requirements of this section must be commenced within two (2) years from the effective date of the rule.
§2222. Filing and Taking Effect of Rules
(a) The Chief shall file in the Office of the Secretary of State a certified copy of each rule adopted by him. The Secretary of State shall keep a permanent register of the rules open to public inspection.
(b) Each rule hereafter adopted is effective twenty (20) days after filing, except that, if a later date is specified in the rule, the later date is the effective date.
§2223. Publication of Rules
(a) The Secretary of State shall compile, index, and publish all effective rules adopted by the Chief. Compilations shall be supplemental or revised as often as necessary.
(b) Compilations shall be made available upon request to agencies and officials of this State free of charge and to other persons at prices fixed by the Secretary of State to cover mailing and publication costs.
§2224. Petition for Adoption of Rules
An interested person may petition the Chief requesting the adoption, amendment, or repeal of a rule. The Chief shall prescribe by rule the form for petitions and the procedure for their submission, consideration, and disposition. Within thirty (30) days after submission of a petition, the Chief either shall deny the petition in writing (stating his reasons for the denials) or shall initiate rulemaking proceedings in accordance with the provisions on procedure for adoption of rules (52221).
§2225. Declaratory Judgement on Validity or Applicability on Rules
The validity or applicability of a rule may be determined in an action for declaratory judgement in the Superior Court if it is alleged that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The Chief shall be made a party to elle action. A declaratory judgement may be rendered whether or not the plaintiff has requested the Chief to pass upon the validity or applicability of the rule in question.
§2226. Declaratory Rulings by Chief
The Chief shall provide by rule for the filing and prompt disposition of petitions or declaratory ruling as to the applicability of any statutory provision or of any rule of the Chief. Rulings disposing of petitions have the same status as decisions or orders in contested cases.
§2227. Contested Cases; Notice; Hearings; Records
(a) In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice.
(b) The notice shall include:
(1) A statement of the time, place, and nature of the hearing;
(2) A statement of the legal authority and jurisdiction under which the hearing is to be held;
(3) A reference to the particular provisions of the statutes and rules involved; and
(4) A short and plain statement of the matters asserted.
(b) If the Chief or other party is unable to state the matters In detail at the time the notice is served, the Initial notice may be limited to a statement of the issues involved. Thereafter upon application a more definite and detailed statement shall be furnished.
(c) Opportunity shall be afforded all parties to respond and present evidence and argument on all issues involved.
(d) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent, order, or default.
(e) The record in a contested case shall include:
(1) All pleadings, motions, intermediate rulings;
(2) Evidence received or considered;
(3) A statement of matters officially noticed;
(4) Questions and offers of proof, objections, and rulings thereon;
(5) Proposed findings and exceptions;
(6) Any decision, opinion, or report by the officer presiding at the hearing; and
(7) All staff memoranda or data submitted to the hearing officer or members of the office of the Chief in connection with their consideration of the case.
(f) Oral proceedings or any part thereof shall be transcribed on request of any party, but at his expense.
(g) Findings of fact shall be based exclusively on the evidence and on matters officially noticed.
§2228. Rules of Evidence; Official Notice In contested cases:
(I) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of evidence as applied in civil cases in the Superior Court of this State shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. The Chief shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form;
(2) Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original;
(3) A party may conduct cross-examinations required for a full and true disclosure of the facts; and
(4) Notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the Chief's specialized knowledge. Parties shall be notified either before or during the hearing, or by referece in preliminary reports or otherwise, of the material notices, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed. The Chief's experience, technical competence, and specialized knowledge may be utilized in the valuation of the evidence.
§2229. Decisions and Orders
A final decision or order adverse to a party in a contested case shall be In writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. If, in accordance with rules of the Chief, a party submitted proposed findings of fact, the decision shall include a ruling upon each proposed finding. Parties shall be notified either personally or by mail of any decision or order. Upon request a copy of the decision or order shall be delivered or mailed forthwith to each party and to his attorney of record.
§2230. Judicial Review of Contested Cases
(a) A person who has exhausted all administrative remedies available before the Chief and who is aggrieved by a final decision in a contested case is entitled to judicial review under this part. This Section does not limit utilization of or the
scope of Judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate action or ruling of the Chief is immediately reviewable if review of the final decision of the Chief would not provide an adequate remedy.
(b) Proceedings for review are instituted by filing a petition in the Superior Court within thirty (30) days after mailing notice of the final decision of the Chief or, if a rehearing is requested within thirty (30) days after the decision thereon. Copies of the petition shall be served upon the Chief and all parties of record.
(c) The filing of the petition does not itself stay enforcement of the decision of the Chief. The Chief may grant, or the reviewing court may order, a stay upon appropriate terms.
(d) Within thirty (30) days after the service of the petition, or within further time allowed by the Court, the Chief shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record.
(e) If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the Chief, the court may order that the additional evidence be taken before the Chief upon conditions determined by court. The Chief may modify his finds and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.
(f) The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the Chief, not shown in the record, proof thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.
(g) The court shall not substitute its judgement for that of the Chief as to the weight of the evidence on questions of fact. The court may affirm the decision of the Chief or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the Chief;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
An aggrieved party may obtain a review of any final judgement of the Superior Court under this part by appeal to the Supreme Court. The appeal shall be taken as in other civil cases."
Section 2. This Act may be cited as the Uniform Alcoholism and Intoxication Treatment Act.
Section 3. 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 this end the provisions of this Act are severable.
Section 4. This act shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this Act among those states which enact a Uniform Alcoholism and Intoxication Treatment Act.
Section 5. This bill shall become law when signed by the Governor.
Approved July 16, 1979.