TITLE 16

Health and Safety

Regulatory Provisions Concerning Public Health

CHAPTER 5. CONTAGIOUS DISEASES GENERALLY

Subchapter II. Tuberculosis Control


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

(1) "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.

(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.

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

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

(5) "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.

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

(7) "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.

(8) "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.

69 Del. Laws, c. 305, § 1.;

(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 2 working days of its occurrence:

(1) 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;

(3) The occurrence of drug-resistant tuberculosis, even if the confirmed or suspected tuberculosis had been previously reported;

(4) 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.

69 Del. Laws, c. 305, § 1.;

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.

69 Del. Laws, c. 305, § 1.;

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.

69 Del. Laws, c. 305, § 1.;

(a) Subject to the provisions of § 526 of this title, 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.

(b) Subject to the provisions of § 526 of this title, 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.

69 Del. Laws, c. 305, § 1.;

(a) Subject to the provisions of § 526 of this title, 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.

(b) Subject to the provisions of § 526 of this title, 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.

69 Del. Laws, c. 305, § 1.;

(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

(3) 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 judgment 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 the 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 the 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 the person is entitled to relief from the original order, or that:

(1) The person no longer poses an imminent and substantial threat to himself or herself or the public's health and welfare; and

(2) The person 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 the patient or the public that may be caused by the release of the patient.

(i) 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 the Director believes reasonably necessary to protect the patient or public from tuberculosis infection and disease.

(j) The Director shall, for a period not exceeding 3 months, review the patient's medical status provided to the Director 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) of this title will apply.

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

69 Del. Laws, c. 305, § 1; 70 Del Laws, c. 186, § 1.;

(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 that person's own self or the public health and welfare; and

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

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

(6) The person is likely to continue to expose the public to the risk of tuberculosis and, therefore, a hearing pursuant to § 526 of this title 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 of this title;

(2) 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.

(d) In no case shall an emergency treatment order continue for more than 5 working days.

69 Del. Laws, c. 305, § 1; 70 Del Laws, c. 186, § 1.;

(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.

(b) The Director, in ordering directly observed therapy, hospitalization or isolation pursuant to this subchapter, shall when necessary direct the peace 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.

69 Del. Laws, c. 305, § 1.;

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 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.

69 Del. Laws, c. 305, § 1.;

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.

69 Del. Laws, c. 305, § 1.;

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:

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

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

(3) 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

(4) 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

(5) 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:

a. 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.

b. 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.

c. 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 the subject is not already a party.

d. 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.

e. 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.

69 Del. Laws, c. 305, § 1; 70 Del. Laws, c. 186, § 1.;

The provisions of this subchapter are subject to the provisions of Title 20. Provisions of Title 20 which conflict with provisions of this subchapter shall take precedence over this subchapter.

73 Del. Laws, c. 355, § 11.;