CHAPTER 187

FORMERLY

HOUSE BILL NO. 285

AS AMENDED BY HOUSE AMENDMENT NO. 1 AND

SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 13, CHAPTER 7 OF THE DELAWARE CODE PERTAINING TO CAREGIVERS' CONSENT FOR MEDICAL TREATMENT OF MINORS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend Title 13, § 707 of the Delaware Code by redesignating (a) as (b), (b) as (c) and (c) as (d).

Section 2. Amend Title13, § 707 of the Delaware Code to add (a) to read as follows:

“(a) Definitions.

As used in this Section:

(1) ‘Medical treatment’ means developmental screening, mental health screening and treatment, ordinary and necessary medical and dental examination and treatment, including blood testing, preventive care including ordinary immunizations, tuberculin testing, and well-child care. Medical treatment also means the examination and treatment of any laceration, fracture or other traumatic injury, or any symptom, disease or pathology which may, in the judgment of the treating health care professional, if left untreated, reasonably be expected to threaten health or life.

(2) ‘Blood testing’ includes Early Periodic Screening, Diagnosis, and Treatment (EPSDT) testing and other blood testing deemed necessary by documented history or symptomatology but excludes HIV/AIDS testing and controlled substance testing or any other testing for which separate court order or informed consent as provided by law is required.

(3) ‘Relative caregiver’ or ‘caregiver’ means an adult person, who by blood, marriage or adoption, is the great grandparent, grandparent, step grandparent, great aunt, aunt, great uncle, uncle, step parent, brother, sister, step brother, step sister, half brother, half sister, niece, nephew, first cousin, or first cousin once removed of a minor and with whom the minor resides, but who is not the legal custodian or guardian of the minor.”

Section 3. Amend Title 13, § 707(b) of the Delaware Code by inserting the word “psychological” between the words “dental” and “or osteopathic practitioners”, inserting the words “or any nurse practitioner/clinical nurse specialist” between the words “osteopathic practitioners” and “or any hospital or public clinic”, and replacing the words “diagnostic, therapeutic or postmortem procedure” with the words “medical treatment”.

Section 4. Amend Title 13, § 707(b)(2) of the Delaware Code by removing the word “physical” before the word “disability”.

Section 5. Amend § 707(a), Title 13 of the Delaware Code by adding a new paragraph (6) to read:

“(6) A relative caregiver acting pursuant to an Affidavit of Establishment of Power to Relative Caregivers to Consent to Medical Treatment of Minors.”

Section 6. Amend Title 13, § 708 of the Delaware Code by redesignating it as § 709.

Section 7. Amend Title 13 of the Delaware Code by adding a new § 708 to read as follows:

“Section 708. Affidavit of Establishment of Power to Consent to Medical Treatment of Minors.

(a) There is created an Affidavit of Establishment of Power to Relative Caregivers to Consent to Medical Treatment of Minors. The Affidavit shall include, at a minimum, the name and date of birth of the minor; a statement signed by the caregiver that the caregiver is 18 years of age or older and that the minor resides with the caregiver; the names and signatures of the parents, legal custodian, or guardian of the minor indicating their approval of the caregiver’s power or, if a parent, custodian or guardian of the minor is unavailable, a statement of reasonable effort made by the caregiver to locate the parent, custodian or guardian based on criteria set forth in the regulations; the name of the caregiver; relationship of the caregiver to the minor documented by proof as defined by regulation; and the dated signature of the caregiver. The signature of the caregiver shall be notarized.

(b) The Affidavit is valid for one year unless the minor no longer resides in the caregiver’s home or a parent, custodian or guardian revokes his or her approval. If a parent, custodian or guardian revokes approval, the caregiver shall notify any health care provider or health service plans with which the minor has been involved through the caregiver.

(c) A caregiver must present a completed Affidavit of Establishment of Power to Relative Caregivers to Consent to Medical Treatment of Minor when seeking medical treatment for a minor.

(d) The decision of a relative caregiver to consent to or to refuse medical treatment for a minor shall be superseded by a decision of a parent, legal custodian, or guardian of the minor.

(e) No person who relies in good faith upon a fully executed Affidavit of Establishment of Power to Relative Caregivers to Consent to Medical Treatment of Minors in providing medical treatment shall be subject to criminal or civil liability or to professional disciplinary action because of the reliance. This immunity applies even if medical treatment is provided to a minor in contravention of a decision of a parent, legal custodian or guardian of the minor who signed the affidavit if the person providing care has no actual knowledge of the decision of the parent, or legal custodian or guardian.

(f) The decision of a relative caregiver, based upon an Affidavit of Establishment Power to Relative Caregivers to Consent to Medical Treatment of Minors, shall be honored by a health care facility or practitioner unless the health care facility or practitioner has actual knowledge that a parent, legal custodian or guardian of a minor has made a contravening decision to consent to or to refuse medical treatment for the minor.

(g) A person who knowingly makes a false statement in an Affidavit under this section shall be subject to a civil penalty of $1,000 per child. Justices of the Peace shall have jurisdiction of these cases.

(h) The Department of Health and Social Services is authorized to promulgate regulations to implement this section.”

Approved July 20,1999