(a) The purpose of this chapter is to create the Delaware Health Information Network, a not-for-profit body both politic and corporate, to serve as a public instrumentality that has the right, obligation, privilege, and purpose to promote the design, implementation, operation, and maintenance of facilities for public and private use of health care information in the State. DHIN is the State’s sanctioned provider of health information exchange services.

(b) DHIN is a public-private partnership for the benefit of all citizens of this State.

(c) DHIN shall ensure the privacy of patient health-care information.

71 Del. Laws, c. 177, §  1;  77 Del. Laws, c. 368, §§  1, 16;  80 Del. Laws, c. 329, §§  1, 2;  83 Del. Laws, c. 137, § 2; 

(a) A Board of Directors manages and operates DHIN. Board membership must include individuals with various business, technology, and healthcare industry skills who are committed to managing DHIN in an efficient, effective, and competitive manner. Board membership is comprised as follows:

(1) The Director of the Office of Management and Budget or the Director’s designee.

(2) The Chief Information Officer of the Department of Technology and Information or the Chief Information Officer’s designee.

(3) The Secretary of the Department of Health and Social Services or the Secretary’s designee.

(4) The Controller General or the Controller General’s designee.

(5) Fifteen members are appointed by the Governor. The Board, Delaware Healthcare Association, Medical Society of Delaware, Delaware State Chamber of Commerce, and other interested organizations may make nonbinding recommendations to the Governor for appointments to the Board. The Governor’s appointments are as follows:

a. Six general members, including at least 1 individual who represents the interests of medical consumers and at least 3 individuals who have experience or expertise in the health-care industry.

b. Three members who represent a hospital or health system.

c. Three members who represent physicians.

d. One member who represents a business or employer.

e. Two members who represent a health insurer or health plan.

(6) a. Board members shall elect the Board chair from among its members. The chair serves as chair for a 3-year term.

b. Each member serves a 3-year term, with each member continuing to serve beyond the term until a successor is appointed.

c. The Governor may suspend or remove a member upon the recommendation from the Board or for misfeasance, malfeasance, nonfeasance, or neglect of duty. A member is deemed in neglect of duty if the member is absent from 3 consecutive, regular Board meetings or attends less than 50% of Board meetings in a calendar year. The Governor may consider the member to have resigned and accept the member’s resignation.

(b) A state officer or employee appointed to the Board or serving in any other capacity for the Board is not deemed to have resigned from public office or employment by reason of the appointment to or service for the Board.

(c) The number of members needed to be present at a Board meeting to have a quorum and conduct official business is a majority of members. Counting for quorum does not include member positions that are vacant.

71 Del. Laws, c. 177, §  1;  70 Del. Laws, c. 186, §  1;  75 Del. Laws, c. 88, §  21(8);  75 Del. Laws, c. 389, §  1;  77 Del. Laws, c. 368, §§  2-5, 16;  80 Del. Laws, c. 329, §  1;  83 Del. Laws, c. 137, § 3; 

(a) DHIN has the power and duty to do all of the following:

(1) Develop and maintain a community-based health information network to facilitate communication of patient clinical and financial information, designed to do all of the following:

a. Promote more efficient and effective communication among multiple health care providers, including hospitals, physicians, payers, employers, pharmacies, laboratories, and other health care entities.

b. Create efficiencies in health-care costs by eliminating redundancy in data capture and storage and reducing administrative, billing, and data collection costs.

c. Create the ability to monitor community health status.

d. Provide reliable information to health-care consumers and purchasers regarding the quality and cost-effectiveness of health care, health plans, and health-care providers.

(2) Develop or design other initiatives in furtherance of DHIN’s purpose.

(3) Report and make recommendations to the Governor and General Assembly.

(4) Adopt bylaws to govern all of the following:

a. The conduct of DHIN’s affairs.

b. The carrying out and discharge of DHIN’s powers, duties, and functions.

c. Adopt policies as appropriate to carry out and discharge DHIN’s powers, duties, and functions; to sue, but not be sued; to enter into contracts and agreements; and to plan, control facilities and DHIN’s real and personal property as DHIN may deem necessary, convenient, or desirable without application of Chapters 59, 69, or 70 of Title 29.

(5) All prior regulations and rules promulgated by the Delaware Health Care Commission regarding DHIN remain in full force and effect until DHIN replaces the regulations and rules with bylaws or policies.

(6) A provision pertaining to conflicts of interest and that Board members, staff, committee members, and others conducting business or associated with DHIN are required to sign conflict of interest statements.

(7) To have and exercise all powers available to a corporation organized under Chapter 1 of Title 8, the Delaware General Corporation Law.

(8) To employ personnel and provide benefits necessary to carry out DHIN’s functions and to retain by contract engineers, advisors, and other providers of advice, counsel, and services which it deems advisable or necessary in the exercise of DHIN’s purposes and powers and upon the terms DHIN deems appropriate.

(9) To exercise power and authority regarding DHIN’s operation, development, and maintenance.

(10) To do all acts and things necessary or convenient to carry out DHIN’s functions, including having the authority to open and operate separate bank accounts in DHIN’s name.

(11) To collect, receive, hold, and disburse funds related to DHIN’s operations, including user fees that DHIN sets.

(12) Implement and operate a statewide integrated health information network to enable communication of clinical health, financial health, and other information, and other related functions that the Board deems necessary.

(13) Promote efficient and effective communication among Delaware healthcare providers and stakeholders including hospitals, physicians, state agencies, payers, employers, and laboratories.

(14) Promote efficiencies in the healthcare delivery system.

(15) Provide a reliable health information exchange to authorized users.

(16) Work with governments or other states to integrate into or with DHIN or assist governments or other states in providing regional integrated health information systems.

(17) Work towards improving the quality of health care and the ability to monitor community health status and facilitate health promotions by providing immediate and current outcome, treatment, and cost data and related information so that patients, providers, and payers can make informed and timely decisions about health care.

(18) Submit an annual report to the Governor and the General Assembly setting forth in detail DHIN’s operations and transactions, including an annual audit of DHIN’s financial books and accounts, to be conducted by a firm of independent certified public accountants that the Auditor of Accounts and the Director of the Office of Management and Budget agree upon.

(19) Develop and maintain a process to enable a hospital to record in the patient’s electronic health record contained in DHIN the patient’s designation of a lay caregiver and the lay caregiver’s contact information, as required by § 3002J(b) of this title, and if the hospital attempted to or did interface with the lay caregiver, as required by § 3004J(b) of this title.

(20) Develop, maintain, and administer the Delaware Health Care Claims Database under subchapter II of this chapter.

(21) Perform any and all other activities in furtherance of this section.

(b) To carry out the duties listed in this section, DHIN is granted all incidental powers, without limitation, including the powers to do all of the following:

(1) Contract with sufficient third parties or employ nonstate employees, without applications of the provisions of Chapter 59, 69, or 70 of Title 29 respectively.

(2) Establish a nonappropriated special funds account in DHIN’s budget to receive gifts and donations.

(3) Establish reasonable fees or charges for provision of DHIN’s services to nonparticipant third parties.

(4) Sell or license copyrighted or patented intellectual property.

71 Del. Laws, c. 177, §  1;  77 Del. Laws, c. 368, §§  6-8, 16;  80 Del. Laws, c. 329, §§  1, 3;  80 Del. Laws, c. 347, §  3;  83 Del. Laws, c. 137, § 4;  83 Del. Laws, c. 283, § 23; 

(a) (1) A Board member, whether temporary or permanent, is not subject to and is immune from claim suit, liability, damages, or other recourse, whether civil or criminal, arising from the member’s act, proceeding, decision, or determination performed or reached in good faith and without malice in carrying out the responsibility, authority, duty, power, or privilege of DHIN.

(2) Immunity under this subsection applies to a member acting individually or jointly with another member.

(3) Good faith is presumed under this subsection until proven otherwise. The burden to prove malice is on the complainant.

(4) The immunity from suit provided to state employees under the Delaware Constitution and §§ 4001 through 4005 of Title 10 applies to a DHIN employee or staff member, whether temporary or permanent.

(b) DHIN is not a health-care provider and is not subject to claims under Chapter 68 of Title 18. A person who participates in or subscribes to the services or information that DHIN provides is not liable in an action for damages or costs of any nature, in law or equity, which result solely from that person’s use or failure to use DHIN information or data that was imputed or retrieved under DHIN’s rules or regulations. A person may not be subject to antitrust or unfair competition liability based on membership or participation in DHIN as the State’s sanctioned provider of health information services that are deemed to be essential to governmental function for the public health and safety.

71 Del. Laws, c. 177, §  1;  70 Del. Laws, c. 186, §  1;  77 Del. Laws, c. 368, §§  9, 10, 16;  80 Del. Laws, c. 329, §  1;  83 Del. Laws, c. 137, § 5; 

(a) A person providing information or data to DHIN retains a property right in that information or data, but the provision of information or data grants to the other participant or subscriber a nonexclusive license to retrieve and use that information or data in accordance with the rules or regulation that DHIN promulgates.

(b) Processes or software that DHIN develops, designs, or purchases remains DHIN’s property subject to use by a participant or subscriber under the rules or regulations that DHIN promulgates.

71 Del. Laws, c. 177, §  1;  77 Del. Laws, c. 368, §§  11, 16;  80 Del. Laws, c. 329, §  1;  83 Del. Laws, c. 137, § 6; 

(a) DHIN may promulgate rules and regulations under subchapter II of Chapter 101 of Title 29 to carry out the objective of this chapter. Regulations and rules that the Delaware Health Care Commission promulgated prior to July 12, 2010, regarding DHIN remain in full force and effect until amended or repealed through DHIN.

(b) DHIN may hear and determine a case decision under subchapter III of Chapter 101 of Title 29 to resolve a dispute among participants, subscribers, or the public under this chapter, or a rule or regulation promulgated under this chapter.

(c) A person may appeal to the Superior Court under subchapter V of Chapter 101 of Title 29 for any of the following:

(1) If the person has been aggrieved by the unlawfulness of a rule or regulation under this chapter.

(2) If a case decision under this chapter has been decided against the person.

71 Del. Laws, c. 177, §  1;  77 Del. Laws, c. 368, §§  12, 13, 16;  80 Del. Laws, c. 329, §§  1, 4;  83 Del. Laws, c. 137, § 7; 

(a) (1) DHIN shall by rule or regulation ensure that patient specific health information is disclosed only with the patient’s consent or best interest to those having a need to know.

(2) A disclosure that is made in the patient’s “best interest to those having a need to know” includes any of the following:

a. Disclosure for treatment, payment and operations purposes, and required disclosures to public health authorities, as “treatment”, “payment”, “operations”, and “public health authorities” are defined under the Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) and associated regulations.

b. Disclosure for other purposes permitted under Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) and other federal law and regulations addressing the privacy of protected health information.

(b) Health information and data held by DHIN is not subject to the Freedom of Information Act, Chapter 100 of Title 29, or to subpoena by a court. The health information and data may be disclosed only by consent of the patient or under DHIN’s rules, regulations, or orders.

(c) DHIN shall by rule or regulation provide a Delaware resident with access to the resident’s own health information that is in DHIN’s possession, if and to the extent that access is permitted by Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) and DHIN’s contract with a relevant data-sending organization.

(d) DHIN shall by rule or regulation provide a Delaware resident with the ability to direct DHIN to disclose the resident’s own health information to a third party that the resident approves, if and to the extent that the disclosure is permitted by Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) and DHIN’s contract with a relevant data-sending organization.

(e) In addition to the disclosures permitted by subsection (a) of this section, DHIN shall by rule or regulation provide a health-care payer, provider, purchaser, or researcher with access to clinical data in DHIN’s possession, if and to the extent that the access is permitted by Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191) and DHIN’s contract with the relevant data-sending organizations.

(1) The reasons for which access to clinical data is permissible under this subsection include any of the following:

a. The facilitation of data-driven, evidence-based improvements in access to and quality of health care.

b. The improvement of the health of Delawareans generally.

c. Lowering the growth in per capita health-care costs.

d. Providing an enhanced provider experience that promotes patient engagement.

(2) DHIN may not provide patient-specific data to a person under this subsection without first obtaining written consent from the patient authorizing the disclosure.

(3) Clinical data may be provided to a requesting person under this subsection only when a majority of the DHIN Board of Directors, or of a subcommittee established under DHIN’s bylaws for purposes of reviewing data requests, determines that the clinical data should be provided to the requesting person to facilitate the purposes of this subsection.

a. If the DHIN Board of Directors or appropriate subcommittee of the Board so determines, DHIN may release fully de-identified data or the analytic evaluation thereof to third parties or the public without obtaining full Board or subcommittee review, for purposes consistent with this subsection.

b. A request for limited data sets or identifiable data must go through Board or subcommittee review.

c. The Board’s or subcommittee’s determination under this subsection is final and not subject to appeal. A requesting person, data-sending organization, or other party has no private right of action to enforce a requirement under this subsection or otherwise challenge the Board’s or subcommittee’s determination.

(4) a. DHIN shall promulgate regulations to notify a data-sending organization when clinical data consisting of a limited data set or identifiable data submitted by the data-sending organization may be released for a purpose permitted under this subsection.

b. If DHIN notifies a data-sending organization under paragraph (e)(4)a. of this section, DHIN shall provide the data-sending organization with an opportunity to comment on the data release request prior to releasing the data. DHIN shall review, consider, and respond to the data-sending organization’s comments.

(5) a. DHIN shall provide clinical data provided to a requesting person under this subsection under DHIN’s existing confidentiality and data security protocols and in compliance with all applicable state and federal laws relating to the privacy and security of protected health information.

b. A person that receives individually-identifiable patient health information under this subsection shall maintain the information by complying with all applicable state and federal laws relating to the confidentiality and security of protected health information, including related regulations promulgated under this chapter.

(f) DHIN may enter a contract under § 10303(a)(11) of this title with a person that requests data or analytic services from DHIN.

(g) A state agency is not required to comply with the State’s procurement law under Chapter 69 of Title 29 to procure services from DHIN.

(h) A violation of DHIN’s rules or regulations regarding access or misuse of health information or data held by DHIN must be reported to the office of the Attorney General, and is subject to prosecution and penalties under the Delaware Criminal Code or federal law.

71 Del. Laws, c. 177, §  1;  77 Del. Laws, c. 368, §§  14, 16;  80 Del. Laws, c. 329, §  1;  83 Del. Laws, c. 137, §§   8, 16;  83 Del. Laws, c. 138, § 1; 

DHIN does not have the power, except where expressly granted by separate act of the General Assembly, to pledge the credit or to create any debt or liability of the State, a state agency, or a political subdivision of the State. The State shall not assume or be deemed to have assumed any debt or liability of DHIN as a result of any actions by DHIN.

71 Del. Laws, c. 177, §  1;  77 Del. Laws, c. 368, §  16;  80 Del. Laws, c. 329, §  1;  83 Del. Laws, c. 137, § 9;