HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/STATE/DELAWARE.ASC

Text File | 1993-01-14 | 24KB | 573 lines

/* Delaware statutes address testing and confidentiality; EMS
notification; donor screening; and real estate disclosure. */



CHAPTER 12. INFORMED CONSENT AND CONFIDENTIALITY REGARDING HIV-
RELATED TESTS



1201. Definitions.

For purposes of this chapter the following definitions shall
apply:

(1)  "Aids" shall mean Acquired Immunodeficiency Syndrome.

(2)  "HIV" shall mean the human immunodeficiency virus identified
as the causative agent of AIDS.

(3)  "HIV-related test" shall mean a test for the antibody or
antigen to HIV.

(4)  "Health facility" shall mean a hospital, nursing home,
clinic, blood bank, blood center, sperm bank, laboratory or other
health care institution.

(5)  "Health care provider" shall mean any nurse, physician,
dentist or other dental worker, optometrist, podiatrist,
chiropractor, laboratory and blood bank technologist and
technician, phlebotomist, dialysis personnel, emergency health
care provider (including any paramedic, emergency medical
technician, law enforcement personnel or firefighter) or others
whose activities involve contact with patients, their blood or
corpses.

(6)  "Legal guardian" shall mean a person appointed by a court to
assume legal authority for another who has been found incompetent
or, in the case of a minor, a person who has legal custody of the
child.

(7)  "Person" shall mean any natural person, partnership,
association, joint venture, trust, public or private corporation
or health facility.

(8)  "Release of test results" shall mean a written authorization
for disclosure of HIV-related test results which is signed, dated
and which specifies to whom disclosure is authorized and the time
period during which the release is to be effective.

(9)  "Manner known to transmit HIV" shall mean parenteral
exposure to blood or blood products including but not limited to
injection through the skin; or as otherwise determined by the
Division of Public Health.



1202. Informed consent.

(a)  No health facility, health care provider or other person
shall test or shall cause by any means to have tested, any
specimen of any patient for HIV-related tests, without the
informed consent of the subject of the test or the subject's
legal guardian. A health care provider shall ensure that informed
consent has been received prior to ordering testing by a
laboratory or other facility.

(b)  Informed consent to an HIV-related test shall consist of a
voluntary agreement executed by the subject of the test or the
subject's legal guardian. If the agreement is oral, the facts
pertaining thereto must be documented by customary practice.
Informed consent shall consist of at least the following:

(1)  An explanation of the test, including its purpose, potential
uses, limitations and the meaning of its results;

(2)  An explanation of the procedure to be followed, including
that the test is voluntary, that consent may be withdrawn and the
extent and limitations of the manner in which the results will be
confidential;

(3)  An explanation of the nature of AIDS and other
manifestations of HIV infection and the relationship between the
test result and those diseases; and

(4)  Information about behaviors known to pose risks for
transmission of HIV infection.

(c)  Notwithstanding subsection (a) of this section the
provisions of subsections (a) and (b) of this section do not
apply when:

(1)  Knowledge of such test results are necessary for medical
diagnostic purposes to provide appropriate emergency care or
treatment and the subject of the test is unable to grant or
withhold consent.

(2)  The testing is done for the purposes of research; provided
that the test is performed in a manner by which the identity of
the test subject is not known and may not be retrieved by the
researcher.

(3)  A health care provider or health care facility procures,
processes, distributes or uses (i) blood, (ii) a human body part
donated for a purpose specified under the Uniform Anatomical Gift
Act or (iii) semen provided prior to July 11, 1988, for the
purpose of artificial insemination, and such test is necessary to
assure the medical acceptability of such gift or semen for the
purposes intended.

(4)  The health of a health care worker has been threatened
during the course of a health care worker's duties, as a result
of exposure to blood or body fluids of the patient in a manner
known to transmit HIV.

(5)  Necessary to control the transmission of HIV infection as
may be allowed pursuant to Chapter 7 of this title as it relates
to sexually transmitted diseases, or 6523(b) of Title 11 as it
relates to the Department of Correction.

(6)  Testing is ordered by a court of competent jurisdiction
within the confines of civil or criminal litigation where the
results of an HIV-related test of a party, or a person in the
custody or under the legal control of another party, is relevant
to the ultimate issue of culpability and/or liability. Said order
must be issued in compliance with the following provisions:

a.   No court of this State shall issue such order unless the
court finds that there is a compelling need for such test results
which cannot be accommodated by other means. In assessing
compelling need, the court shall weigh the need for testing and
disclosure of the test results against the privacy interest of
the test subject and the public interest which may be disserved
by disclosure which deters future testing or which may lead to
discrimination.

b.   Pleadings pertaining to ordering of an HIV-related test
shall substitute a pseudonym for the true name of the subject of
the test. The true name shall be communicated confidentially, in
documents not filed with the court.

c.   Before granting any such order, the court shall provide the
individual whose test result is in question with notice and a
reasonable opportunity to participate in the proceedings if he or
she is not already a party.

d.   Court proceedings as to disclosure of test results so
ordered shall be conducted in camera unless the subject of the
test 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.

(d)  Any person on whom an HIV-related test was performed without
first having obtained informed consent pursuant to subsections
(c)(1), (4) and (5) of this section shall be given notice
promptly, personally and confidentially that a test sample was
taken and the results of such test may be obtained upon request.

(e)  At the time of learning the test result, the subject of the
test or the subject's legal guardian shall be provided with
counseling for coping with the emotional consequences of learning
the result, for understanding the interpretation of the test
result, for understanding measures for preventing infection to
others and to urge the voluntary notification of sexual and
needle-sharing partners of the risk of infection.

(f)  Notwithstanding any other provision of law, a minor 12 years
of age or older may consent or refuse consent to be a subject of
HIV-related testing and to counseling relevant to the test. The
consent or refusal of the minor shall be valid and binding as if
the minor had achieved his or her majority, and shall not be
voidable, nor subject to later disaffirmance, because of
minority.



1203. Confidentiality.

(a)  No person may disclose or be compelled to disclose the
identity of any person upon whom an HIV-related test is
performed, or the results of such test in a manner which permits
identification of the subject of the test, except to the
following person:

(1)  The subject of the test or the subject's legal guardian.

(2)  Any person who secures a legally effective release of test
results executed by the subject of the test or the subject's
legal guardian.

(3)  An authorized agent or employee of a health facility or
health care provider if the health facility or health care
provider itself is authorized to obtain the test results, the
agent or employee provides patient care or handles or processes
specimens of body fluids or tissues, and the agent or employee
has a medical need to know such information to provide health
care to the patient.

(4)  Health care providers providing medical care to the subject
of the test, when knowledge of the test results is necessary to
provide appropriate emergency care or treatment.

(5)  When part of an official report to the Division of Public
Health as may be required by regulation.

(6)  A health facility or health care provider which procures,
processes, distributes or uses: (i) blood; (ii) a human body part
from a deceased person donated for a purpose specified under the
Uniform Anatomical Gift Act; or (iii) semen provided prior to
July 11, 1988, for the purpose of artificial insemination.

(7)  Health facility staff committees or accreditation or
oversight review organizations which are conducting program
monitoring, program evaluation or service reviews.

(8)  Pursuant to Chapter 9 of this title as it relates to
investigation of child abuse.

(9)  Pursuant to Chapter 7 of this title as it relates to
sexually transmitted diseases and their control.

(10) A person allowed access to said record by a court order
which is issued in compliance with the following provisions:

a.   No court of this State shall issue such order unless the
court finds that the person seeking the test results has
demonstrated a compelling need for the test results 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 test subject  and the public interest which may
be disserved by disclosure which deters future testing or which
may lead to discrimination.

b.   Pleadings pertaining to disclosure of test results shall
substitute a pseudonym for the true name of the subject of the
test. The disclosure to the parties of the subject's true name
shall be communicated confidentially, in documents not filed with
the court.

c.   Before granting any such order, the court shall provide the
individual whose test result is in question with notice and a
reasonable opportunity to participate in the proceedings if he or
she is not already a party.

d.   Court proceedings as to disclosure of test results shall be
conducted in camera unless the subject of the test 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.

e.   Upon the issuance of an order to disclose test results, 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 prohibitions on future disclosures.

(11) Pursuant to Chapter 12A of this title as it relates to
notification of emergency medical care providers.

(b)  No person to whom the results of an HIV-related test have
been disclosed pursuant to subsection (a) of this section shall
disclose the test results to another person except as authorized
by subsection (a) of this section.

(c)  The provisions in this section shall not interfere with the
transmission of information as may be necessary to obtain 3rd-
party payment for medical care related to HIV infection or with
the documentation of cause of death on death certificates.



       1204. Enforcement of chapter.

(a)  Any person aggrieved by a violation of this chapter shall
have a right of action in the Superior Court and may recover for
each violation:

(1)  Against any person who negligently violates a provision of
this chapter, damages of $1,000 or actual damages, whichever is
greater.

(2)  Against any person who intentionally or recklessly violates
a provision of this chapter, damages of $5,000 or actual damages,
whichever is greater.

(3)  Reasonable attorneys' fees.

(4)  Such other relief, including an injunction, as the court may
deem appropriate.

 (5)Any action under this chapter is barred unless the action is
commenced within 3 years after the cause of action accrues. A
cause of action will accrue when the injured party becomes aware
of an unauthorized disclosure pursuant to   1203 of this title,
or that an HIV-related test has been conducted without informed
consent pursuant to   1202 of this title.

(b)  The Attorney General may maintain a civil action to enforce
this chapter in which the court may order any relief authorized
by subsection (a) of this section.

(c)  Nothing in this chapter shall be construed to impose civil
liability or criminal sanction for disclosure of an HIV-related
test result in accordance with any reporting requirement by the
Division of Public Health.



CHAPTER 12A. NOTIFICATION OF EMERGENCY MEDICAL PROVIDERS OF
PERSONS WITH COMMUNICABLE DISEASES

1201A. Definitions.

  As used in this chapter:

(1)  "Emergency medical care provider" means a fire fighter, law
enforcement officer, paramedic, emergency medical technician or
other person who serves as an employee or volunteer of an
ambulance service and/or provides pre-hospital emergency medical
services.

(2)  "Emergency medical service facility" means a licensed
hospital or freestanding medical care facility that receives
patients cared for by emergency services personnel.

(3)  "Receiving medical facility" means a hospital or similar
facility that receives a patient attended by an emergency medical
care provider for the purposes of continued medical care.

(4)  "Division" means Division of Public Health, Department of
Health and Social Services.

(5)  "Communicable disease" means human immunodeficiency virus,
(HIV, the virus that causes AIDS), and hepatitis B.

 (6)"Universal precautions" means those precautions, including
the appropriate use of hand washing, protective barriers, and
care in the use and disposal of needles and other sharp
instruments that minimize the risk of transmission of
communicable diseases between patients and health care providers.



1202A. Report of exposed emergency medical provider.

(a)  An emergency medical care provider may request notification
concerning exposure to a communicable disease under this section
if the exposure is of a manner known to transmit a communicable
disease.

(b)  If an emergency medical care provider desires to be notified
under this section, the emergency medical care provider shall
notify the receiving medical facility, within 24 hours after the
patient is admitted to or treated by the facility, on a form that
is prescribed or approved by the State Board of Health.

(c)  The emergency medical care provider shall designate, on the
form required by subsection (b) of this section, to whom
notification should be made, including the option that
notification be made either to the emergency medical care
provider directly or to a designated physician.

(d)  The emergency medical care provider shall distribute a copy
of the completed form to the receiving medical facility.

1203A. Notification of infection with a communicable disease.

(a)  Each receiving medical facility shall designate an office or
individual who shall receive completed forms as specified by
1202A(b) of this title and who shall insure compliance with the
requirements of this section.

(b)  The receiving medical facility shall notify only the person
designated pursuant to   1202A(c) of this title when:

(1)  Within 10 days after a patient is admitted or treated by the
receiving medical facility, the facility obtains information from
the patient's records or a finding at the facility indicates that
the patient is infected with a communicable disease;

(2)  The emergency medical care provider has complied with
1202A of this title; and

(3)  The information as described on the completed form required
by   1202A(b) of this title suggests that the exposure was of a
manner known to transmit the communicable disease with which the
patient is infected.

(c)  The notification required by subsection (b) of this section
shall be made within 96 hours after the receiving medical
facility determines that a patient is infected with a
communicable disease.

(d)  The receiving medical facility, or other persons designated
by the emergency medical care provider on the form completed
pursuant to   1202A(b) and (c) of this title, shall provide the
emergency medical care provider with:

(1)  An explanation about the communicable disease;

(2)  Information about post-exposure treatment which may be
appropriate;

(3)  Information about the mode of transmission, and preventive
measures which can be taken to reduce the likelihood of
transmission to others; and

(4)  Information on associated counseling.

(e)  The receiving medical facility shall provide to the Division
a copy of each form completed pursuant to 1202A(b) of this title
which shall include information about whether or not the patient
is infected with a communicable disease, and if exposure to the
patient is considered by the receiving medical facility to be in
a manner known to transmit that communicable disease.



1204A. Universal precautions.

In recognition of the importance of universal precautions to the
control of communicable diseases from a patient to an emergency
medical care provider, education and training with respect to
universal precautions shall be a mandatory component of any
required training and any required continuing education for all
emergency medical care providers who have patient contact.
Training requirements for this purpose shall be established by
the State Board of Health.



1205A. Rules and regulations.

The State Board of Health shall make such rules and regulations
as may in its judgment be necessary to carry out the provisions
of this section, and may make additions of other communicable
diseases which shall be subject to this chapter.



1206A. Confidentiality of HIV test results.

A person who has knowledge of the identity of any person upon
whom an HIV related test is performed, or the results of such
test, in accordance with this chapter, shall maintain the
confidentiality of that information pursuant to 1203 of this
title.



1207A. Liability of receiving medical facility; breach of
confidentiality.

A receiving medical care facility acting in good faith to provide
notification in accordance with this chapter shall not be liable
in any cause of action related to the breach of patient
confidentiality.



1208A. Failure to provide notice.

A receiving medical care facility acting in good faith to provide
notification in accordance with this chapter shall not be liable
in any cause of action for:

(1)  The failure to give the required notice if the emergency
medical care provider fails to properly initiate the notification
procedures pursuant to  1202A of this title; or

(2)  The failure of the person or facility designated pursuant to
 1202A(c) of this title to subsequently notify the emergency
medical care provider of the possible exposure.



CHAPTER 28. SPERM BANK AND TISSUE BANK REGISTRY

2801. Establishment of registry; testing of donors; penalties.

(a)  The Board of Health shall establish a registry of all sperm
banks and tissue banks operating in this State. All sperm banks
and tissue banks operating in this State shall register with the
Board by May 1 of each year. Any person, hospital, clinic,
corporation, partnership or other legal entity which operates a
sperm bank or tissue bank in this State and fails to register
with the Board pursuant to this section shall be subject to a
fine of $5,000.

(b)  All donors of semen for purposes of artificial insemination,
or donors of corneas, bones, organs or other human tissue for the
purpose of injecting, transfusing or transplanting any of them in
the human body, shall be tested for evidence of exposure to human
immunodeficiency virus (HIV) and any other identified causative
agent of Acquired Immunodeficiency Syndrome (AIDS) at the time of
or after the donation, but prior to the semen, corneas, bones,
organs or other human tissue being made available for such use.
However, when in the opinion of the attending physician the life
of a recipient of a bone, organ or other human tissue donation
would be jeopardized by delays caused by testing for evidence for
exposure to HIV and any other causative agent of AIDS, testing
shall not be required prior to the life-saving measures.

(c)  No person may intentionally, knowingly, recklessly or
negligently use the semen, corneas, bones, organs or other human
tissue of a donor unless the requirements of subsection (b) of
this section have been met. No person may knowingly, recklessly
or intentionally use the semen, corneas, bones, organs or other
human tissue of a donor who has tested positive for exposure to
HIV or any other identified causative agent of AIDS. Violation of
this subsection shall be a class E felony.

(d)  For the purposes of this section, "tissue bank" means any
facility or program that is involved in procuring, furnishing,
donating, processing, distributing corneas, bones, organs or
other human tissue for the purpose of injecting, transfusing or
transplanting any of them in the human body.



2929. Certain psychological impacts not material facts.

(a)  As used in this section, "transferee" includes, but shall
not be limited to, a buyer, purchaser, grantee, lessee, tenant or
one making an exchange of any estate or interest in real
property.

(b)  As used in this section, the terms "psychologically
impacted" and "psychological impacts" mean:

(1)  That the property was, or was at any time suspected to have
been the site of a homicide, suicide or other felony except
arson.

(2)  That an occupant of real property is or was at any time
suspected to be infected or has been infected with Human Immuno-
deficiency Virus or diagnosed with Acquired Immune Deficiency
Syndrome (AIDS), or any other disease which has been determined
by medical evidence to be highly unlikely to be transmitted
through the occupancy of a dwelling place.

(c)  As used in this section, "agent" means any person licensed
as a broker, salesperson or appraiser pursuant to this chapter.

(d)  The fact or suspicion that a property might be or is
psychologically impacted is not a material fact that must be
disclosed in a real property transaction.

(e)  No cause of action shall arise against an owner or appraiser
of real property or the agent of such an owner or the agent of a
transferee of real property for failure to inquire about, make a
disclosure about or release information about the fact or
suspicion that such property is psychologically impacted.

(f)  If a potential transferee makes a specific written request
to the owner or agent about the psychological impacts defined
above in subsection (b)(1) of this section regarding a specific
property, the owner or agent shall answer the transferee's
questions truthfully, to the best of such owner's or agent's
knowledge. The agent shall have no duty to inquire about the
psychological impacts defined above in subsection (b)( 1) of this
section regarding a specific property unless a transferee, in
writing, specifically requests the agent to ask the owner for
such information.

(g)  The agent shall not make any disclosure concerning those
psychological impacts defined above in subsection (b)(2) of this
section even if a buyer specifically asks about such
psychological impacts.