CHAPTER 305

FORMERLY

HOUSE BILL NO. 436

AS AMENDED BY HOUSE AMENDMENT NO. 2 AND SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 5, TITLE 16 OF THE DELAWARE CODE RELATING TO TUBERCULOSIS CONTROL.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 5, Title 16 of the Delaware Code by redesignating §§501 - 08 as "Subchapter I: General Guidelines" and by adding a new Subchapter to read as follows:

"SUBCHAPTER II: TUBERCULOSIS CONTROL §520. Definitions.

As used in this Title, unless otherwise provided or the context requires a different meaning:

(1) 'Division' means the Division of Public Health or its

authorized representatives, which includes therein all of the responsibilities afforded the State Board of Health as it appears elsewhere in this title.

(2) 'Director' means the Director of the Division of Public Health, or such persons as may be designated by the Director.

(3) 'County Public Health Administrator' means the Division of Public Health employee responsible for managing the operations of all public health programs within an assigned county.

(4) 'Tuberculosis (TB)' means a disease caused by Mycobacterium Tuberculosis that is in the active stage as demonstrated by clinical, bacteriologic and/or radiographic evidence. Such persons who have not completed a course of anti-TB treatment are considered to have active TB and might be infectious.

(5) 'Voluntary treatment' means a person voluntarily taking medications as prescribed and following the recommendations of the attending physician or the Division for the management of tuberculosis.

(6) 'Directly Observed Therapy (DOT)' means treatment in which health-care providers or other designated persons observe patients ingesting anti-TB medications.

(1) 'Peace officer' means any public officer authorized by law to make arrests in a criminal case.

(2) 'Designated transport personnel' means such personnel as designated by the Director to transport persons with tuberculosis to and from treatment and/or detention facilities, and other sites as ordered by the Director.

§521. Reporting by health care providers

(a) Physicians, pharmacists, nurses, hospital administrators, medical

examiners, morticians, laboratory administrators, and others who provide health-care services to persons with tuberculosis or suspected tuberculosis shall report the following to the Division within two working days of its occurrence:

(I) Confirmed or suspected tuberculosis;

(2) The results for any person whose sputa, gastric contents, or other specimens submitted for examination reveal the presence of tubercle bacilli; The occurrence of drug-resistant tuberculosis, even if the confirmed or suspected tuberculosis had been previously reported;

(1) Persons with tuberculosis who have demonstrated an inability to or an unwillingness to adhere to a prescribed treatment regimen, who refuse medication, or who show other evidence of not taking medications as prescribed.

(b) Physicians, pharmacists, nurses, hospital administrators, medical examiners, morticians, laboratory administrators, and others who provide health-care services to tuberculosis patients shall make their records available to the inspection of the Division when so requested in order to carry out the provisions of this title.

§522. Division investigates reported cases of tuberculosis.

Whenever the Division shall discover, as a result of its own investigation or, as a result of any report required by this Chapter that any person may have tuberculosis, the Division shall investigate or further investigate the circumstances and, if after investigation, the Division is of the opinion that a case of tuberculosis has been found, the Division shall interview, or cause to be interviewed said person in order to investigate the source and spread of the disease and in order to require said person to submit to examination and treatment as necessary. The Division shall keep record of all interventions with said persons.

§523. Voluntary treatment.

Whenever the Division shall discover as a result of its own investigation or as a result of any report required by this Chapter that any person has tuberculosis, the Division shall encourage the person to take voluntary treatment to meet the minimum requirements prescribed by the Division.

§524. Public health power to examine and order treatment.

(a) Subject to the provisions of §526 of this subchapter, a person with tuberculosis or a person reasonably suspected of being diseased with or exposed to tuberculosis shall report for a complete examination or treatment, as appropriate, to a physician licensed under Title 24, or shall submit to an examination or treatment as appropriate, at a public health facility. When a person has been diagnosed as having tuberculosis or has been determined to have been exposed to tuberculosis, said person shall continue to be prescribed treatment until such time as that treatment is no longer required as determined by the Director.

(a) Subject to the provisions of §526 of this subchapter, the Division shall examine or cause to be examined, or treat or cause to be treated, any person who will not respond to voluntary treatment for tuberculosis. The County Public Health Administrator shall go before the Director for a Director's order for involuntary examination and/or treatment of said person.

§525. Types of involuntary treatment; outpatient examination and treatment. directly observed therapy. hospitalization. and residential isolation.

(a) Subject to the provisions of §526 of this subchapter, the Director shall order, as medically appropriate, a person with tuberculosis to undergo outpatient examination and treatment, directly observed therapy, hospitalization, or isolation from the general public in the home, as a result of the threat of harm to the person and the probable spread of tuberculosis, until such time as the disease is cured or the risk of infection to the general public is eliminated or reduced in such a manner that a substantial threat to the public's health and welfare no longer exists.

(a) Subject to the provisions of §526 of this subchapter, a person who is infected with tuberculosis but is not infectious to others, and is a danger to himself or herself by resistance to treatment, and who refuses to adhere to a treatment regimen or to complete treatment, may be ordered by the Director to undergo outpatient examination and treatment, directly

observed therapy, hospitalization, or isolation from the general public in the home, as a result of the increased risk that said persons will develop drug-resistant tuberculosis, which may pose a serious threat to the person and the general public.

§526. Conditions under which orders can be issued by Director.

(a) No person may be ordered to undergo outpatient examination and treatment, directly observed therapy, hospitalization, or isolation from the general public in the home, except upon the order of the Director following a hearing where it is proven by clear and convincing evidence:

(1) That there is a danger to the health of the person or that the public health and welfare are substantially endangered by the person;

(2) That the person has been counseled about tuberculosis, the significant threat tuberculosis poses to the public, and methods to minimize the risk to the public, and, despite said counseling, indicates an intent by words or action to endanger himself or herself and/or expose the public to infection from tuberculosis; and

(1) That all other reasonable means of achieving voluntary compliance with the treatment have been exhausted and no less restrictive alternative exists.

(b) The hearing required under subsection (a) of this section shall provide the person with the rights to present evidence, to cross-examine witnesses, and to be represented by legal counsel. If the person is unable to employ counsel, the Division shall petition the Superior Court to forthwith appoint legal counsel for representation in proceedings authorized by this subchapter. Further, the person shall be given at least 5 working days prior written notification of the time and place of hearing, a copy of documentary evidence to be presented, a list of the proposed actions to be taken, and the reasons for each said action; and shall be given a verbatim transcript of the hearing on request for appeal purposes.

(c) The Director shall order isolation in an alternative facility, if in the Director's judgement isolation in the person's usual residence is inappropriate because of the possible infection of other persons living in or around that residence.

(d) The Division, as appropriate, shall consult with legal counsel,

designated transport personnel, and peace officers concerning any necessary infection control procedures to be taken during any interviews, hearings, transports, or detention.

(e) An order requiring outpatient examination and treatment, directly observed therapy, hospitalization, or isolation from public in the home shall be maintained until in the opinion of the attending physician or the County Public Health Administrator, the person is cured or said person is no longer a substantial threat to him or herself or to the public health. Once the County Public Health Administrator finds the person no longer needs treatment, the County Public Health Administrator will petition the Director to dismiss the order. Once the matter is dismissed, said order cannot be reinstated unless the person is afforded all of the rights conferred in subsection (a) of this section.

(f) Any person who undergoes outpatient examination and treatment, directly observed therapy, hospitalization, or isolation from public in the home, or confinement, as a result of an order entered under this subchapter, may at any time petition the Director for immediate release and termination of the order.

(g) Any person petitioning the Director for immediate release and termination of the order entered under the authority of this subchapter shall show that he/she is entitled to relief from the original order, or that:

(1) He or she no longer poses an imminent and substantial threat to himself or herself or the public's health and welfare; and (2) He or she will voluntarily continue with prescribed

medications and treatment, if medically necessary, to reduce the risk of infection to the public.

(h) When considering a petition for imminent and substantial threat and prior to making any said release, the Director shall consult the County Public Health Administrator and the patient's physician, if any, concerning the patient's medical condition and other related factors that may affect the present and future danger to himself or herself or the public that may be caused by the release of the patient.

(a) Upon granting a petition for immediate release, the Director shall advise the County Public Health Administrator and other persons as may be appropriate about those conditions he or she believes reasonably necessary to protect the patient or public from tuberculosis infection and disease.

(a) The Director shall, for a period not exceeding three months, review the patient's medical status provided to him or her by written report of the health care provider and determine whether a further hearing should be held for additional involuntary treatment within 14 working days of receipt of a written report of the medical status, and all rights pursuant to §526(b) will apply.

(b) No peace officer, public health employee, or medical doctor shall be subject to civil damages or criminal penalties for any harm resulting from his or her functions under this section unless such harm was intentional or the result of willful and wanton misconduct on his or her part.

§527. Order for emergency treatment.

(a) The County Public Health Administrator shall file a petition

before the Director requesting that emergency treatment be ordered for a person infected with, or reasonably suspected of having tuberculosis when the County Public Health Administrator has clear and convincing evidence, documented as facts in the petition, that:

(1) The person has tuberculosis or is reasonably suspected of having tuberculosis;

(2) The person poses an imminent and substantial threat to himself or herself or the public health and welfare and;

(3) The person is unable, for whatever reason, to sufficiently protect his or her own health or that of the public or there is evidence that a person will act In such a way as to recklessly disregard his or her own health or the public's health; and

(4) The person is not likely to appear at a hearing scheduled pursuant to §526 of this subchapter; or

(1) The person provides evidence by words or action that he/she is likely to leave the jurisdiction prior to the hearing date; or

(1) The person is likely to continue to expose the public to the risk of tuberculosis and, therefore, a hearing pursuant to 5.526 of this subchapter does not protect the public.

(b) No emergency treatment order shall be issued unless the Director finds that:

(1) The County Public Health Administrator has also requested in the emergency treatment petition a hearing pursuant to §526 of this subchapter, as well as its subparts, to consider the examination, treatment, or placement of the person with tuberculosis or reasonably suspected to have tuberculosis, providing all due process rights as stated in §526;

(1) The County Public Health Administrator presents clear and convincing evidence that a substantial threat to the person or the public's health and welfare exists unless the emergency treatment order is issued;

(3) The County Public Health Administrator has no other

reasonable alternative means of reducing the threat to the individual or public's health and welfare.

(c) When issuing an emergency treatment order, the Director shall direct a peace officer or other designated transport personnel to immediately transport the person with tuberculosis as so ordered by the Director. The peace officer shall take into custody and isolate the person in such a manner as required by the Director. The Division will notify the peace officer or other designated transport personnel concerning any necessary infection control procedures to be taken.

(a) In no case shall an emergency treatment order continue for more than five working days.

§528. Service of notice and processes: duties of the peace officer.

(a) All notices required to be given, warrants, petitions, processes issued, and orders entered pursuant to this subchapter shall be served by a peace officer of proper jurisdiction.

(a) The Director, in ordering directly observed therapy,
hospitalization, or isolation pursuant to this subchapter shall when necessary direct the peade officer to take the person into their custody and immediately deliver them to the director of the facility named on the order. The Division shall consult with the peace officer concerning any necessary infection control procedures to be taken.

§529. Right to appeal.

Any person who is aggrieved by the entry of an order pursuant to this subchapter shall have 15 days within which to appeal the order to Superior Court. The Court shall convene a hearing as soon as practicable, but no later than fifteen (15) working days from the filing of the appeal. The Court shall receive the records of the administrative hearing, hear additional evidence at the request of either party, and conduct a de novo review of the order. An appeal does not stay treatment.

§530. Exercise of religious freedom.

Nothing in this subchapter shall be construed to authorize or empower the medical treatment of any person who desires treatment by prayer or spiritual means, in the exercise of religious freedom; provided, however,that said person shall be isolated or quarantined, or both, at the patient's expense, and while so quarantined or so isolated, or both, shall comply with all applicable sanitary rules, laws, and regulations.

§531 Confidentiality.

All information held by the Division relating to known or suspected cases of tuberculosis or exposure to tuberculosis shall be strictly confidential. Said information shall not be released or made public upon subpoena or otherwise, except that release may be made under the following circumstances:

(a) Release is made of medical or epidemiological information for statistical purposes so that no person can be identified; or

(a) Release is made of medical or epidemiological information with the consent of all persons identified in the information released; or

(b) Release is made of medical or epidemiological information to medical personnel, appropriate State agencies or State courts to the extent required to enforce the provisions of this chapter and related rules and regulations concerning the control and treatment of tuberculosis; or

(c) Release is made of medical or epidemiological information to medical personnel in a medical emergency to the extent necessary to protect the health or life of the named party or group of persons; or (e) Release is made during the course of civil or criminal litigation to a person allowed access to said records by a court order which is issued in compliance with the following provisions:

(1) No court of this State shall issue such order unless the court finds that the person seeking the records and information has demonstrated a compelling need for such records which cannot be accommodated by other means, In assessing compelling need, the court shall weigh the need for disclosure against the privacy interest of the subject and the public interest which may be disserved by disclosure which deters future testing and treatment or which may lead to discrimination.

(2) Pleadings pertaining to disclosure of such records shall substitute a pseudonym for the true name of the subject of the
records. The disclosure to the parties of the subject's true name
shall be communicated confidentially, in documents not filed with the court.

(1) Before granting any such order, the court shall provide the subject whose records are in question with notice and a reasonable opportunity to participate in the proceedings if he or she is not already a party.

(1) Court proceedings as to disclosure of such records shall be conducted in camera unless the subject agrees to a hearing in open court or unless the court determines that a public hearing is necessary to the public interest and the proper administration of justice.

(1) Upon issuance of an order to disclose such records, the court shall impose appropriate safeguards against unauthorized disclosure, which shall specify the persons who may have access to the information, the purposes for which the information shall be used, and appropriate prohibition on future disclosures."

Section 2. If any provision of this Act, or the application thereof to any person, thing or circumstances is held invalid, such invalidity shall not affect the provisions or application of this Act that can be given effect without the invalid provisions or application, and to this end the provisions of this Act are declared to be severable.

Approved July 8, 1994.