Subchapter II. Powers and Duties Generally; Regulations and Orders
TITLE 16
Health and Safety
Local Boards of Health; Health Programs
CHAPTER 1. DEPARTMENT OF HEALTH AND SOCIAL SERVICES
Subchapter II. Powers and Duties Generally; Regulations and Orders
§ 121. Successor to powers of abolished health and welfare agencies.
All the rights, powers, duties, obligations and authority belonging to or vested in the Child Welfare Commission, the Tuberculosis Commission or the State Health and Welfare Commission, prior to May 21, 1941, are transferred to and vested in the Department as successor to those commissions. The Department is clothed with all the power and authority necessary for the competent discharge of the duties imposed upon it.
33 Del. Laws, c. 57, §§ 4, 9; 34 Del. Laws, c. 69, § 1; Code 1935, § 744; 43 Del. Laws, c. 91, § 1; 16 Del. C. 1953, § 121; 70 Del. Laws, c. 544, § 9.;
§ 122. Powers and duties of the Department of Health and Social Services.
The Department shall have the following general powers and duties:
(1) Supervision of all matters relating to the preservation of the life and health of the people of the State.
(2) Supreme authority in matters of quarantine; it may declare and enforce such quarantine, when necessary and where no quarantine exists, and may modify, relax or abolish it, where it has been established.
(3) Adopt, promulgate, amend, and repeal regulations consistent with law, which regulations shall not extend, modify or conflict with any law of this State or the reasonable implications thereof, and which shall be enforced by all state and local public health officials, to:
a. Prevent and control the spread of all diseases that are dangerous to the public health;
b. Prevent and control nuisances which are or may be detrimental to the public health;
c. Provide for the sanitary protection of all drinking water supplies which are furnished to and used by the public, including the establishment of primary maximum contaminant levels, operational requirements and public notice requirements. Primary maximum contaminant levels mean a maximum contaminant level which involves a biological, chemical or physical characteristic of drinking water that may adversely affect the health of the consumer.
A public water supplier means any person who owns or operates one or more public water systems. A public water system means a water supply system for the provision to the public of water for human consumption through pipes or other constructed conveyances either directly from the user's free flowing outlet or indirectly by the water being used to manufacture ice, foods and beverages or that supplies water for potable or domestic purposes to employees, tenants, members, guests or the public at large in commercial offices, industrial areas, multiple dwellings or semi-public buildings including, but without limitation, rooming and boarding houses, motels, tourist cabins, mobile home parks, restaurants, hospitals and other institutions, or offers any water for sale for potable domestic purposes. A dwelling unit means 1 or more rooms arranged for the use of 1 or more individuals as a single housekeeping unit, with cooking, living, sanitary and sleeping facilities. A person shall include corporations, companies, associations, firms, municipally owned water utilities, partnerships, societies and joint stock companies, as well as individuals. In addition, the following provisions shall apply:
1. No public water system shall operate without a duly licensed public water supply operator. The Department shall have the authority to exempt the owners of seasonal public water systems, restaurants, hotels and similar businesses from the requirement to operate with a licensed public water supply operator. The Department shall have the exclusive power to grant or deny any such license and shall adopt regulations setting the requirements, including any acceptable performance or an examination for obtaining and retaining any such license. The Department shall assess an annual licensure fee of $50 per operator.
2. The Department shall have the authority to monitor the water quality of public water systems for secondary drinking water quality standards. The Secretary shall have the authority to establish, after public hearing, minimum secondary drinking water quality standards for all public water suppliers serving more than 500 service connections within the state. In determining the total number of service connections, all public water systems operated, managed or owned wholly or in part by the public water supplier within the state shall be added together. Secondary drinking water quality standards involve a biological, chemical or physical characteristic of water that may adversely affect the taste, odor, color or appearance (aesthetics) which may affect public confidence or acceptance of the drinking water. These standards shall include but are not limited to chlorides, copper, iron, manganese, sulfate, total dissolved solids and other standards as determined by the Secretary. Such standards shall be at least as stringent as those adopted by the United States Environmental Protection Agency under the Safe Drinking Water Act [42 U.S.C. § 300f, et seq.]. A certificate of noncompliance shall be issued to any public water supplier that serves more than 500 service connections whose public water system violates secondary drinking water quality standards as adopted by the Department. Such certificate shall require the public water supplier to report within 60 days what measures have been or will be taken to bring the public water system into compliance. Should any public water supplier serving more than 500 service connections within the State fail, without good cause, to meet secondary drinking water quality standards pursuant to this section for a period of time greater than 7 consecutive days, or should the public water supplier have a history of a recurring problem, the Secretary shall file a report with the Public Service Commission detailing such failure or such a history of a recurring problem. The Public Service Commission may utilize the report as cause to review the public water supplier's ability to provide adequate service under its present certificate of public convenience and necessity and may also use such report as a factor in considering any application by the water system supplier's for any further certificate. In addition, for public water systems operated by public utilities which are subject to the jurisdiction of the Public Service Commission under § 203C of Title 26, the Commission may utilize such report as cause to review the appropriate rates to be charged by the utility in light of the quality of service being provided.
3. The Department shall ensure that all new community and nontransient noncommunity public water systems commencing operation after October 1, 1999, demonstrate technical, managerial and financial capacity to operate in compliance with state regulations Governing Public Drinking Water Systems and the federal Safe Drinking Water Act [42 U.S.C. § 300f, et seq.]. It is the purpose of this subparagraph to ensure that the Department has adequate information about the background of applicants or regulated parties for the purposes of processing permits. This includes the ability to identify applicants or regulated parties with histories of environmental violations or criminal activities and/or associations; or applicants who cannot demonstrate the required responsibility, expertise or competence which is necessary for the proper operation or activity permitted by the Department.
4. Whoever refuses, fails or neglects to perform the duties required of public water suppliers under paragraph (3)c. of this section; or who violates, neglects or fails to comply with duly adopted regulations or orders of the Department of Health and Social Services regarding the duties of public water suppliers, shall be subject to a judicially imposed penalty of up to $10,000 per day, together with costs, for every day from and after the effective date of an order of the Department of Health and Social Services, specifically directing compliance until such compliance has been achieved. Observance of orders of the Department of Health and Social Services concerning public water suppliers may also be compelled by mandamus or injunction, in appropriate cases, or by an action to compel the specific performance of the orders so made, or of the duties imposed by law upon such public water supplier. The Department of Health and Social Services may investigate the financial operations of a public water supplier to the extent necessary to enter an adequate compliance order.
5. In lieu of judicially imposed penalties, the Secretary may impose administrative penalty upon any public water supplier who refuses, fails or neglects to perform the duties required of it under paragraph (3)c. of this section. The administrative penalty shall be as follows:
A. For a system serving a population of more than 10,000 people the administrative penalty shall be not less than $1,000 nor more than $10,000 per day per violation; and
B. For any other system, the administrative penalty shall be not less than $100 nor more than $10,000 per day per violation.
Assessment of an administrative penalty shall be determined by the nature, circumstances, extent and gravity of the violation, or violations, ability of the violator to pay, any prior history of such violations, the degree of culpability, economic benefit or savings (if any) resulting from the violation and such other matters as justice may require.
In the event of nonpayment of the administrative penalty after all legal appeals have been exhausted, a civil action may be brought by the Secretary in any court of competent jurisdiction, including any Justice of the Peace Court, for collection of the administrative penalty, including interest, attorneys' fees and costs, and the validity, amount and appropriateness of such administrative penalty shall not be subject to review.
6. Drinking water contaminant notification. --
A. As used in this section, "Drinking water contaminant" means any physical chemical, biological or radiological substance or matter in drinking water, the presence of which is confirmed by 2 or more samples taken at the same location at different times, using recognized practices and procedures, which substance exceeds the minimum drinking water quality standards established in accordance with paragraph c. of this subdivision (3).
B. Public notification of drinking water contaminants shall be categorized as either an Immediate Notice (Tier 1), Notice as soon as possible (Tier 2) or 90-day Notice (Tier 3). A Tier 1 drinking water contaminant notification is required when there is an acute risk to human health arising from the presence of drinking water contaminants in drinking water provided by a public drinking water supplier. A Tier 2 drinking water contaminant notification is required when a public water system provides drinking water containing levels of a contaminant that exceed federal or state drinking water standards, but does not pose an acute risk to human health or the public drinking water supplier fails to monitor and report water quality information to the Department in accordance with regulations. A Tier 3 drinking water notification is required when a public drinking water system provides water which otherwise does not comply with federal or state drinking water standards, but the noncompliance does not pose a risk to human health.
C. In the event of a Tier 1, Tier 2 or Tier 3 drinking water contaminant incident, the public drinking water supplier shall immediately notify the Department. If the Department deems it necessary, the public drinking water supplier shall also notify its affected customers in accordance with subparagraph D. of this paragraph and Department regulations and such notice shall include, to the maximum extent practicable, the following information: I. A description of the violation or situation, including contaminant levels, if applicable; II. When the violation or situation occurred; III. Recognized potential adverse health effects using standard health effects language as approved by the Division of Public Health; IV. The affected population; V. Whether alternative drinking water supplies should be used; VI. What action consumers should take; VII. What the public drinking water provider is doing to correct the violation or situation; VIII. When the public drinking water provider expects the system to return to compliance or the situation to be resolved; IX. The name, business address and phone number of the public drinking water system owner or operator; and X. A statement encouraging distribution of the notice to others, where applicable.
D. For Tier 1 drinking water contaminant incidents, the information listed in items I. through X. above, shall be made available to affected customers by the public drinking water supplier, if the Department deems it necessary, as soon as possible but no later than 24 hours after the contamination is reported. For Tier 2 drinking water contaminant incidents, the information listed in items I. through X. above shall be made available to affected customers by the public drinking water supplier, if the Department deems it necessary, as soon as practical but within 14 calendar days after the contamination is reported. For Tier 3 drinking water contaminant incidents, the information listed in items I. through X. above shall be made available to affected customers by the public drinking water supplier, if the Department deems it necessary, as soon as practical, but within 90 calendar days after the contamination is reported.
E. In accordance with the public notification timelines established in paragraph (3)c.7.D. of this section, the public drinking water supplier shall also provide the same notification to the elected Council or Levy Court member(s) of any municipality and/or county in which the contamination occurred, the State Representative(s) and Senator(s) in whose district the contamination occurred, and any community or civic group or individual that notifies the public drinking water supplier that they desire to receive such information.
F. The public drinking water supplier is not required to report the results of tests for the presence of drinking water contaminants to the Department in cases where the Division of Public Health performs the potable water analyses.
G. In the event the public drinking water supplier is unable to provide public notification of a Tier 1, Tier 2 or Tier 3 drinking water contaminant incident, as required by this section, such public drinking water supplier shall be responsible for paying for the cost of any such advertisements and notices made on its behalf by the Department.
7. Regulatory and compliance information, public drinking water system performance and public information.
A. The Department shall develop a Safe Drinking Water Information System that will include general information about public drinking water systems under the Department's regulatory jurisdiction as defined by this title. The System shall provide the public with information that indicates when a public drinking water system has been inspected, what violations are detected, when the public drinking water system comes back into compliance, and any enforcement action that results from violations. The Department shall also publish on the Department web site all Tier 1, Tier 2 and Tier 3 drinking water contaminant public notifications as soon as possible, but within 1 business day of the release of the notification to the public.
B. Delaware public drinking water systems that are identified as a community water system by the Division of Public Health, shall prepare and issue each year, on or before July 1, an annual water quality report to customers served by their drinking water system. The water quality reports shall be provided by parcel post return receipt requested to the Department and the Division of the Public Advocate. In addition, the public drinking water supplier shall notify its customers of the availability of the annual water quality report and provide copies of the report to all individuals, health care providers or organizations requesting it. The water quality report shall include such information as may be prescribed by the Division of Public Health, including, but not limited to, any environmental violations or enforcement actions taken against the public drinking water supplier by federal, state or local regulatory authorities and the name and contact information of the public drinking water supplier representative. The reports may also include any voluntary activities undertaken by the drinking water supplier to reduce health risks from identified contaminants, including source water assessments, installation of new treatment processes, or such similar environmental improvements undertaken within the previous year or planned for the next 5 years.
C. Any records, reports or information obtained pursuant to this chapter and any permits, permit applications and related documentation shall be available to the public for inspection and copying in accordance with Chapter 100 of Title 29.
d. Provide for the sanitary control of public swimming pools except that no regulation currently existing or hereafter adopted shall require a life guard to be on duty at any pool of any motel, hotel or private campground facility;
e. Regulate plumbing in the interests of the public health;
f. Provide for the sanitary production, distribution and sale of market milk and dairy products and other foods;
g. Provide for the sanitary control of tourist camps, trailer camps and other public camps;
h. Control the practice of non-nurse midwives including the issuance of permits and protect and promote the health of all mothers and children;
i. Provide for proper sanitation, ventilation and hygiene in schools and for sanitary and health requirements for food handlers in the schools not less stringent than the requirements for food handlers in public eating places;
j. Protect and promote the public health generally in this State, and carry out all other purposes of the laws pertaining to the public health;
k. Provide the mechanism for yearly medical examination of all persons engaged in the preparation and service of food and drink for human consumption in commercial establishments or public and private educational institutions where such persons come in physical contact with the food and drink prepared or served, such examinations to include whatever tests the Director of the Division of Public Health of the State Department of Health and Social Services shall deem necessary;
l. Provide the mechanism for medical examinations of all applicants for food handling employment if such employment involves preparation of food and drink for human consumption in commercial establishments or public and private educational institutions where such persons come in physical contact with the food or drink prepared or served, such examinations to include whatever tests the Director of the Division of Public Health of the State Department of Health and Social Services shall deem necessary;
m. Establish standards for quality assurance in the operation of hospice programs and control the practice of such programs. Upon receipt of an application for license and the application fee of $100, the Department shall issue a license if the hospice meets requirements established under this chapter. A license, unless sooner suspended or revoked, shall be renewed annually upon filing by the licensee and payment of an annual licensure fee of $50. A provisional license, as authorized by the Department, shall be issued when health requirements are not met and a licensure fee of $50 has been submitted. A hospice which has been issued a provisional license shall resubmit the application fee for reinspection prior to the issuance of an annual license;
n. Prevent and control the spread of vaccine-preventable diseases in children, including regulation of nonpublic elementary and secondary schools and daycare and other preschool facilities; provided, however, that nothing in this paragraph shall require medical treatment for the minor child of any person who is a member of a recognized church or religious denomination and whose religious convictions, in accordance with the tenets and practices of the person's church or religious denomination, are against medical treatment for disease;
o. Establish standards for public health quality assurance in the operation of home health agency programs and regulate the public health practice of such programs.
1. A home health agency is any business entity or subdivision thereof, whether public or private, proprietary or not-for-profit, which provides home health care services.
A. Home health care services include but are not limited to the following: (i) Licensed nursing; (ii) Physical therapy; (iii) Speech therapy; (iv) Audiology; (v) Occupational therapy; (vi) Nutrition; (vii) Social Services; or (viii) Home health aides.
B. Home health agencies shall provide: (i) Two or more home health care services, 1 of which must be either licensed nursing services or home health aide services; or (ii) Home health aide services exclusively which shall include, but not be limited to:
(I) Feeding;
(II) Bathing;
(III) Dressing;
(IV) Grooming; and
(V) Incidental household services.
2. For purposes of this definition, the following shall also apply:
A. Home health agency services are provided directly through employees of the agency or through contract arrangements, including those contracts with individuals considered to be independent contractors.
B. Home health agency services are provided to individuals in their home or private residence (excluding residents of hospitals and nursing facilities).
C. All home health agency services must be supervised by a registered nurse.
D. Home health agencies shall utilize written financial agreements between the agency and the consumer. These agreements shall minimally include: (i) Description of services purchased and the associated cost; (ii) Acceptable method of payment(s) for these services; and (iii) Outline of the billing procedures.
All payments by the consumer for services rendered shall be made directly to the agency or its billing representative and no payments shall be made to or in the name of individual employees/contractors/subcontractors of the agency.
3. A home health agency does not include:
A. Any visiting nurse service or home health service conducted by and for those who rely upon spiritual means through prayer alone for healing in accordance with the tenets and practices of a registered church or religious denomination.
B. An agency which solely provides services as defined in Chapter 94 of this title.
C. An agency which provides staffing exclusively to other agencies (including but not limited to nursing facilities, home health agencies, and hospitals).
4. Upon receipt of an application for licensure and the nonrefundable application fee of $500, the Department shall issue a license if the home health agency meets the requirements established under this chapter. A license, unless sooner suspended or revoked, shall be renewed annually upon filing by the licensee and payment of an annual licensure fee of $300.
5. A provisional license, as authorized by the Department, shall be issued when health requirements are not met and a licensure fee of $300 has been submitted. A home health agency which has been issued a provisional license shall resubmit the application fee ($500) for reinspection prior to the issuance of an annual license.
6. The Department shall not issue a license to any applicant, nor shall it renew any previously issued license, unless, together with the proper licensure fee and filing/application, the agency/applicant has included evidence that it has obtained from the State Bureau of Identification a report of the entire criminal history record of any of its employees, contractors or contractors' employees who may enter the home or private residence of any resident of this State for the purposes of providing them with any of the services herein described.
7. The Department may request the Superior Court to impose a civil penalty of not more than $10,000 for a violation of this subsection or a regulation adopted pursuant to it. In lieu of seeking a civil penalty, the Department, in its discretion, may impose an administrative penalty of not more than $10,000 for a violation of this subsection or a regulation adopted pursuant to it. Under this subparagraph, each day a violation continues constitutes a separate violation.
8. In determining the amount of any civil or administrative penalty imposed pursuant to paragraph (3)o.7. of this section, the Court or the Department shall consider the following factors:
A. The seriousness of the violation, including the nature, circumstances, extent and gravity of the violation and the threat or potential threat to the health or safety of a consumer or consumers;
B. The history of violations committed by the person or the person's affiliate(s), employee(s), or controlling person(s);
C. The efforts made by the agency to correct the violation or violations;
D. The culpability of the person or persons who committed the violation(s);
E. Any misrepresentation made to the Department; and
F. Any other matter that affects the health, safety or welfare of a consumer or consumers.
9. The Department shall have the authority to collect administrative penalties. Any fees or civil or administrative penalties collected by the Department under this section are hereby appropriated to the Department to carry out the purposes of this section.
10. In the event of non-payment of the administrative penalty after all legal appeals have been exhausted, a civil action may be brought by the Secretary in Superior Court for collection of the administrative penalty, including interest, attorney fees and costs. In a civil action to collect the administrative penalty the validity, amount and appropriateness of such administrative penalty shall not be subject to review.
p. Establish standards for quality assurance in the operation of freestanding birthing centers, freestanding surgical centers and freestanding emergency centers; and to grant permits for the operation of such facilities to persons, associations or organizations meeting those standards and paying the appropriate permit fee established by the Department. Upon receipt of an application for license and the application fee of $150 for freestanding birthing centers, $250 for freestanding surgical centers and $250 for freestanding emergency centers, the Department shall issue a license if the facility meets the requirements established under this chapter. A license unless sooner suspended or revoked, shall be renewed annually upon filing by the licensee and payment of an annual licensure fee of $75 for freestanding birthing centers, $150 for freestanding surgical centers and $150 for freestanding emergency centers. A provisional license as authorized by the Department shall be issued when health requirements are not met and a licensure fee of $75 for freestanding birthing centers, $150 for freestanding surgical centers and $150 for freestanding emergency centers has been submitted. For each facility which has been issued a provisional license, there shall be resubmission of the application fee for reinspection prior to the issuance of an annual license. When appropriate, the Department should use the established standards for Medicare reimbursement in setting standards; provided, however, that nothing contained in this subparagraph shall be construed to authorize the Department to expand or limit the scope of practice afforded to professionals under other chapters of this title or other provisions of Delaware law or lawful regulations of the Department. For the purpose of this chapter, the following definitions shall apply to those facilities:
1. "Freestanding birthing center" means a public or private facility, other than a hospital, which is established for the purpose of delivering babies and providing immediate postpartum care.
2. "Freestanding emergency center" means a facility, physically separate from a hospital, which uses in its title or in its advertising, the words "emergency", "urgent care" or parts of those words or other language indicating to the public that immediate medical treatment is available to individuals suffering from a life-threatening medical condition.
3. "Freestanding surgical center" means a place other than a hospital or the office of a physician, dentist or podiatrist or professional association thereof, which is maintained and operated for the purpose of providing surgery and surgical diagnosis and treatment by persons licensed to practice medicine and surgery, dentistry or podiatry in the State, and which shall have an attending staff.
q.1. Establish standards for quality assurance in the operation of prescribed pediatric extended care facilities, and to grant permits for the operation of such facilities to persons, associations or organizations which have been approved in accordance with Chapter 93 of this title and which pay the appropriate permit fee established by the Department. The amount to be charged for the fee imposed under this subparagraph shall approximate and reasonably reflect the costs necessary to defray the expenses of the Department.
2. Upon receipt of an application for license and the application fee of $100, the Department shall issue a license if the prescribed pediatric extended care center meets the requirement established under this chapter. A license, unless sooner suspended or revoked, shall be renewed annually upon filing by the licensee and payment of an annual licensure fee of $50. A provisional license as authorized by the Department shall be issued when health requirements are not met and a licensure fee of $50 has been submitted. For each home health agency which has been issued a provisional license, there shall be resubmission of the application fee for reinspection prior to the issuance of an annual license.
r. Provide for the sanitary control, specifically addressing drinking water, human waste disposal and control of other vectors of human disease, of mobile/manufactured home parks and other housing of similar usage, which consist of more than 3 dwelling units or lots located on the same or adjacent properties served by a common water and/or sewage disposal system, and which are held out to the public for rent or lease.
s.1. Establish standards for regulation in the operation of adult day care facilities, and grant licenses for the operation of such facilities to persons, associations or organizations which have been approved in accordance with this title and which pay the appropriate permit fee established below.
2. Upon receipt of an application for a license, and the application fee of $100, the Secretary of the Department of Health and Social Services shall issue a license if the prescribed adult day care facility meets the requirements established under this title. The Secretary shall be authorized to issue restricted, provisional and other types of licenses and to revoke or suspend any license in accordance with department regulations. A license, unless sooner suspended or revoked, shall be renewed annually upon filing by the licensee and payment of an annual licensure fee of $50, provided that an applicant meets requirements as outlined in the regulations.
t.1. Establish standards for regulation of lead-based paint hazard control activities, including the training and certification of workers engaged in lead-based paint activities, the establishment of work standards for lead-based paint hazard control and the accreditation of lead-based paint hazard training programs.
2. Individuals meeting the minimum qualifications established by regulation who are engaged in lead-based paint activities shall obtain a license issued by the State Department of Health and Social Services upon receipt of an application and an annual license fee of $25 for workers and $50 for supervisors, project designers, contractors, inspectors and risk assessors.
3. All courses offered in Delaware by training providers for individuals engaged in lead-based paint activities shall be approved by the State Department of Health and Social Services. The training provider shall pay an annual fee of $200 for each type of course for which training will be provided.
u.1. Promulgate and enforce standards to regulate food establishments which may include, but are not limited to, restaurants, caterers, temporary food vendors, grocery stores, food vending machines, ice manufacturers and cottage industries that prepare or handle food for human consumption whenever it is determined that said food represents a hazard to the public health.
2. To perform these functions, the Division of Public Health shall have the authority to collect reasonable fees necessary to defray costs of functions identified in paragraph (3)u.1. of this section.
3. For each facility required by regulations to hold a permit, the
following fee shall be assessed:
Food Establishment Permit
Type of Establishment Fee
Public Eating Place $100
Retail Food Store $100
Ice Manufacturers $30
Commercial Food Processors $30
Vending Machine Location $30
4. For each facility required by regulation to have a plan review, the
following fee shall be assessed:
Food Establishment Plan Review
Square Footage Fee
1000 or less $50
1001-5000 $100
5001-10000 $150
10001-15000 $200
15001-above $250
5. Churches, schools, fire companies and other nonprofit organizations are exempt from these fees.
v. Establish standards for public health assurance in the practice of cosmetology and barbering and in the operation of beauty salons, schools of cosmetology, schools of electrology, schools of nail technology and schools of barbering, and for the investigation of complaints involving unsanitary or unsafe practices or conditions in such professions or facilities. For purposes of this chapter, the terms "cosmetology," "beauty salon," "school of cosmetology," "school of electrology," "school of nail technology" and "school of barbering" shall have the same meanings as provided in § 5101 of Title 24. Nothing contained in this subparagraph shall be construed to authorize the Department to expand or limit the scope of practice afforded to professionals under other provisions of Delaware law.
w. Establish standards for the sanitary operation of tattoo parlors and body piercing establishments. For purposes of this paragraph, "tattoo parlor" means a person or business that makes permanent marks on human skin by puncturing the skin and inserting an indelible color or by producing scarring. For purposes of this paragraph, "body piercing establishment" means a person or business that perforates any human body part or human tissue and places a foreign object in the perforation for nonmedical purposes except for a person or business that perforates only ears. Upon receipt of an application for a permit and a permit fee of $100, the Department of Health and Social Services shall issue a permit to a tattoo parlor or body piercing establishment if it meets the requirements established under Department regulations. The Secretary shall be authorized to issue restricted, provisional and other types of permits and to revoke or suspend any permit in accordance with Department regulations. A permit, unless sooner suspended or revoked, shall be renewed annually upon filing by the permittee and payment of an annual permit fee of $100, provided that an applicant meets the requirements set forth in Department regulations.
x. Establish standards for regulation of the operation of personal assistance services agencies, and grant licenses for the operation of such Agencies to persons, associations or organizations that have been approved in accordance with this title and that pay the appropriate licensure fee.
1. A "personal assistance services agency" is any business entity or subdivision thereof, whether public or private, proprietary or not-for-profit, which refers direct care workers to provide personal assistance services to individuals primarily in their home or private residence (excluding residents of hospitals and nursing facilities).
2. "Personal assistance services" means the provision of services that do not require the judgment and skills of a licensed nurse or other professional. The services are limited to individual assistance with, or supervision of, activities of daily living, homemaker services, companion services, and those other services as set out in § 1921(a)(19) of Title 24.
3. A personal assistance services agency does not include:
A. An agency providing skilled professional health care services.
B. An agency which provides services as defined in Chapter 94 of this title.
C. An agency which provides staffing exclusively to other agencies (including but not limited to, nursing facilities, home health agencies, and hospitals).
4. Upon receipt of an application for licensure and the nonrefundable application fee of $250, the Department shall issue a license if the personal assistance services agency meets the requirements established under this paragraph. The Department shall be authorized to revoke or suspend any license in accordance with Department regulations. A license is not transferable from person to person or entity to entity.
5. A license, unless sooner suspended or revoked, shall be renewed annually upon filing by the licensee and payment of an annual licensure fee of $100, provided that an applicant meets requirements as outlined in the Department's regulations.
6. The Department shall not issue a license to any applicant, nor shall it renew any previously issued license, unless, together with the proper licensure fee, application, and evidence of compliance with Department regulations, the personal assistance services agency/applicant has included:
A. Evidence that the personal assistance services agency has obtained the following information for each of the direct care workers who may enter the home or private residence of any resident of this State for the purpose of providing them with any of the services herein provided: i. In accordance with § 1145 of this title, a criminal history report from the State Bureau of Identification. The State shall cover all costs associated with obtaining the criminal history reports. ii. Certification from the Department of Health and Social Services that the direct care worker has not been named in the Central Register as a perpetrator of adult abuse. iii. Certification from the Department of Services for Children, Youth, and Their Families that the direct care worker has not been named in the Central Register as the perpetrator of child abuse.
B. Evidence that the personal assistance services agency is complying with the State's drug testing policy as set forth in § 1146 of this title.
C. Evidence that the personal assistance services agency discloses to its consumers the personal assistance services agency's and the direct care worker's status with respect to attendant tax, workers' compensation, and liability insurance obligations.
7. The Department may request the Superior Court to impose a civil penalty not to exceed $5,000 for a violation of this subsection or a regulation adopted pursuant to it. In lieu of seeking a civil penalty, the Department, in its discretion, may impose an administrative penalty not to exceed $5,000 for a violation of this subsection or a regulation adopted pursuant to it. Under this subparagraph, each day a violation continues constitutes a separate violation.
8. In determining the amount of any civil or administrative penalty imposed pursuant to paragraph (3)x.7. of this section, the Court or the Department shall consider the following factors:
A. The seriousness of the violation, including the nature, circumstances, extent and gravity of the violation and the threat or potential threat to the health and safety of a consumer or consumers;
B. The history of violations committed by the person or person's affiliate(s), employee(s), or controlling person(s);
C. The efforts made by the Personal Assistance Services Agency to correct the violation or violations;
D. The culpability of the person or persons whom committed the violation or violations;
E. Any misrepresentation made to the Department; and
F. Any other matter that affects the health, safety, or welfare of a consumer or consumers.
9. In the event of nonpayment of the administrative penalty after all legal appeals have been exhausted, a civil action may be brought by the Secretary in Superior Court for collection of the administrative penalty, including interest, attorney fees and costs. In a civil action to collect the administrative penalty the validity, amount and appropriateness of such administrative penalty shall not be subject to review.
10. The Department shall have the authority to collect licensure fees and administrative penalties. Any licensure fees or civil or administrative penalties collected by the Department under this subsection are hereby appropriated to the Department to carry out the purposes of this subsection.
11. The Department shall have the power to promulgate rules and regulations necessary to implement the provisions of this subsection.
When deemed necessary by the Department, such regulations may provide for the issuance of permits to persons engaged in the occupations or businesses so regulated and the revocation for cause of the permits.
(4) Make careful inquiry as to the cause of disease, especially when contagious, infectious, epidemic or endemic, and take prompt action to control or suppress it.
(5) Make careful study of the reports of births and deaths, the sanitary condition and effects of localities, employments, the personal and business habits of the people and the relation of the diseases of animals and man; make and execute orders necessary to protect the people against diseases of the lower animals; and collect and preserve such information in respect to such matters and kindred subjects as may be useful in the discharge of its duties, and for dissemination among the people.
(6) When requested by public authorities, or when it deems best, advise officers of the state, county or local governments in regard to drainage, and the location, drainage, ventilation and sanitary provisions of any public institution, building or public place.
(7) Promulgation and enforcement of reasonable rules and regulations relating to safety, sanitation and adequate shelter as affecting the welfare and health of railroad trainworkers, engineworkers, yardworkers, maintenance of way employees, highway crossing watches, clerical, platform, freight house and express employees. No rules and regulations shall be issued by the Department under this subdivision unless the Department has held hearings with regard thereto and both the employers and the employees affected have been given a full opportunity to present evidence as to the necessity and reasonableness of the proposed rules and regulations.
(8) Collection of fees to support the Conrad State 30/J-1 Visa Waiver Program. -- Pursuant to the Department of Health and Social Services authority under this title to assess fees for services, the Bureau of Health Planning and Resources Management, Delaware Division of Public Health, Department of Health and Social Services, shall charge, collect and retain site application and physician application fees to support the Bureau of Health Planning and Resources Management in administering the Conrad State 30/J-1 Visa Waiver Program.
The Bureau of Health Planning and Resources Management within the Delaware Division of Public Health shall charge a nonrefundable processing fee of $200 to each sponsoring site submitting a site application at the time the application is submitted. A nonrefundable processing fee of $250 shall be charged to each pre-approved site to process the waiver request application for each J-1 physician that the site plans to employ.
(9) The powers and duties of the Department are subject to the powers and duties granted other entities in Title 20. Provisions of Title 20 which conflict with provisions of this section shall take precedence over this section.
19 Del. Laws, c. 642, § 3; 22 Del. Laws, c. 327, § 3; Code 1915, § 738; 33 Del. Laws, c. 57, § 4; 34 Del. Laws, c. 69, § 1; Code 1935, § 745; 43 Del. Laws, c. 91, § 1; 16 Del. C. 1953, § 122; 50 Del. Laws, c. 312, § 1; 51 Del. Laws, c. 80, § 1; 52 Del. Laws, c. 103; 56 Del. Laws, c. 284; 56 Del. Laws, c. 383, § 1; 56 Del. Laws, c. 389, §§ 1, 2; 57 Del. Laws, c. 743; 57 Del. Laws, c. 751, § 2; 58 Del. Laws, c. 52, § 1; 63 Del. Laws, c. 332, § 1; 64 Del. Laws, c. 471, § 1; 65 Del. Laws, c. 69, § 1; 65 Del. Laws, c. 301, § 1; 66 Del. Laws, c. 397, § 1; 67 Del. Laws, c. 266, §§ 1, 2, 3, 4; 67 Del. Laws, c. 344, § 6; 68 Del. Laws, c. 200, § 1; 69 Del. Laws, c. 302, § 7; 69 Del. Laws, c. 452, § 1; 70 Del. Laws, c. 150, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 267, § 1; 70 Del. Laws, c. 405, § 1; 70 Del. Laws, c. 470, § 1; 70 Del. Laws, c. 536, § 1; 70 Del. Laws, c. 544, §§ 2, 3, 10-20; 71 Del. Laws, c. 85, §§ 1, 2; 71 Del. Laws, c. 322, § 1; 71 Del. Laws, c. 441, § 1; 72 Del. Laws, c. 124, § 1; 72 Del. Laws, c. 181, § 1; 72 Del. Laws, c. 402, § 4; 73 Del. Laws, c. 10, § 1; 73 Del. Laws, c. 118, §§ 1-5; 73 Del. Laws, c. 193, § 4; 73 Del. Laws, c. 347, § 1; 73 Del. Laws, c. 355, § 2; 74 Del. Laws, c. 78, §§ 2, 3; 75 Del. Laws, c. 286, § 1; 75 Del. Laws, c. 308, § 1.;
§ 123. Reports from public institutions, Division of Professional Regulation and resorts; penalties.
(a) The Department of Health and Social Services may require reports and information from all public dispensaries, asylums, prisons and schools and from the managers, principals and officers thereof, and from all other public institutions, their officers and managers, and from the proprietors, managers, lessees and occupants of all places of public resort in the State but such reports and information shall only be required concerning matters and particulars in respect of which the Department of Health and Social Services may need information for the proper discharge of its duties.
(b) If any proprietor, manager, principal, superintendent, officer or physician in charge refuses and neglects to make a report when requested to do so by the Department of Health and Social Services, that person shall be fined not less than $5 nor more than $25, together with costs.
(c) The Delaware Division of Public Health and the Delaware Health Care Commission shall be authorized to request and receive licensing data (including, but not limited to, names, addresses, and license type) to the extent that the data is collected and electronically stored for the purpose of issuing and maintaining professional licenses by the Division of Professional Regulation. Licensing data shall only be used for the purpose of conducting official state business, which may include measuring and tracking the supply of licensed health care professionals in the State. The Delaware Division of Public Health and the Delaware Health Care Commission may share licensing data with their contractors to carry out the purpose of this subsection. The boards affected shall include but not be limited to:
(1) Delaware State Board of Medical Licensure and Discipline;
(2) Delaware State Board of Dentistry and Dental Hygiene;
(3) Delaware State Board of Nursing;
(4) Delaware State Board of Professional Counselors;
(5) Delaware State Board of Examiners of Psychologists;
(6) Delaware State Board of Clinical Social Work Examiners;
(7) Delaware State Board of Podiatry;
(8) Delaware State Board of Chiropractic;
(9) Delaware State Board of Occupational Therapy Practice;
(10) Delaware State Board of Examiners in Optometry;
(11) Delaware State Board of Pharmacy;
(12) Delaware State Examining Board of Physical Therapists and Athletic Trainers;
(13) Delaware State Board of Examiners of Speech/Language Pathologists, Audiologists and Hearing Aid Dispensers;
(14) Delaware State Board of Examiners of Nursing Home Administrators; and
(15) Delaware State Committee of Dietetics/Nutrition.
(d) All data must be submitted in a standardized electronic format as determined by the Division of Public Health in consultation with the Division of Professional Regulation and the Delaware Health Care Commission. Data must be submitted within 20 business days of a request.
(e) For the purposes of measuring, tracking and projecting supply and demand of health care professionals, the requesting entity shall provide to the Division of Professional Regulation any health workforce report developed from the data.
(f) Any individual data provided pursuant to this section shall be confidential. No public employee, commission member, or contractor acting on behalf of a state agency or employee of such a contractor may:
(1) Use any data provided pursuant to this section for any purpose other than the statistical, forecasting, and program purposes for which the data is furnished.
(2) Make public any of the data provided pursuant to this section that would allow the identity of any individual to be inferred by either direct or indirect means.
(3) Retain any personal data as provided in this section that is received by the Delaware Division of Public Health, the Delaware Health Care Commission or any contractor acting on behalf of these entities. Any personal data must be destroyed within 30 days of completion of its intended purpose as described in this section.
(g) An intentional violation of subsection (f) of this section shall result in the imposition of a fine of not less than $1,000 nor more than $20,000 or imprisonment of not less than 30 days nor more than 6 months, or both. Justices of the Peace shall have jurisdiction of offenses under this section.
19 Del. Laws, c. 642, § 3; 22 Del. Laws, c. 327, § 3; Code 1915, § 738; 33 Del. Laws, c. 57, § 4; 34 Del. Laws, c. 69, § 1; Code 1935, § 745; 43 Del. Laws, c. 91, § 1; 16 Del. C. 1953, § 123; 70 Del. Laws, c. 149, §§ 24-26; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 544, §§ 21, 22; 75 Del. Laws, c. 228, §§ 1-5; 77 Del. Laws, c. 319, § 1; 77 Del. Laws, c. 463, § 3.;
§ 124. Fluoridation of a water supply.
(a) In order to protect the dental health of all citizens, especially children, the Department of Health and Social Services shall promulgate rules to provide for the addition of fluoride to all municipal water supplies by the owners or official custodians thereof. Such rules shall provide for the addition of fluoride to the water supplies so as to maintain a fluoride content of not less than that currently specified by the Department's regulations.
(1) By November 15, 1998, each municipal water system shall provide to the Department an estimate of the total capital costs to install the required fluoridation treatment and additional operating costs for the ongoing operation for flouridation treatment.
(2) Subsection (b) of this section shall not apply to those municipalities which are required to comply with the mandates of subsection (a) of this section.
(b) The Division of Public Health shall not require any water supply to be fluoridated which has not been fluoridated before March 26, 1974, until approval of such fluoridation is first obtained in the following manner by the users of such water supply:
(1) When the Division determines that it is in the best interest of the users of a given water supply that such supply shall be fluoridated, it shall notify the administrator, owner or person who controls the water supply and the local government which it serves. Within 60 days from the receipt of such notice, the governing body of the majority of people involved shall conduct a referendum among the people served by the water supply to determine whether or not such fluoridation shall take place. Prior to any such referendum the Division shall conduct an educational program in the community affected on the fluoridation process. The costs of the referendum shall be borne by the said governing body.
(2) Notice of the referendum shall be by the publication of a formal notice embodying the notice received from the Division. Such notice shall be published at least 3 times in a newspaper of general circulation in the area served by the water supply, the last publication to be at least 3 days before the referendum. Such notice shall also include the time and place of voting for the various voting districts involved.
(3) Eligible voters at such referendum shall be any natural person who uses the water supply daily and who is 18 years of age or older. Each such person shall be entitled to 1 vote.
(4) If the area serviced by the water supply has an established local government such government shall conduct the referendum. If 2 or more towns or municipalities are served by the water supply, the referendum shall be conducted simultaneously in each town or municipality by the governing body of that town or municipality. If the governing body is a county and not a town or municipality, the county shall be responsible for all costs of the referendum. The Department of Elections shall conduct the referendum. The referendum shall be by secret ballot and the choice for each voter shall be "For Fluoridation" and "Against Fluoridation." The water supply shall not be fluoridated if the majority of the ballots cast are against fluoridation.
(5) After a referendum is held, the matter shall be deemed to have been conclusively decided for a period of 3 years from the date of the referendum.
(6) This section shall apply to any municipality within this State that has held a referendum on the question of fluoridation within the last 3 years commencing from March 26, 1974. Those municipalities that have voted not to fluoridate shall not be required to do so, except as provided by this section.
59 Del. Laws, c. 276, § 2; 70 Del. Laws, c. 150, § 2; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 361, § 1.;
§ 125. Preservation of public health within incorporated towns; local sanitation matters; expenses.
(a) The Department of Health and Social Services, in addition to other powers possessed by it, may preserve the public health within all incorporated towns and within 1 mile of the water supply thereof.
(b) The Department of Health and Social Services may also make and enforce orders in local sanitation matters, when in the judgment of the Department of Health and Social Services such action is necessary for the protection of the public health and the local boards of health have neglected or refused to act with sufficient promptness or efficiency, or when or where such local board has not been established. All expenses so incurred shall be paid by the city, or town or county for which services are rendered upon bill presented to the treasurer of such city, town or county by the Department of Health and Social Services.
19 Del. Laws, c. 642, § 3; 22 Del. Laws, c. 327, § 3; Code 1915, § 738; 33 Del. Laws, c. 57, § 4; 34 Del. Laws, c. 66, § 1; 34 Del. Laws, c. 69, § 1; Code 1935, §§ 745, 858; 43 Del. Laws, c. 91, § 1; 16 Del. C. 1953, § 124; 57 Del. Laws, c. 591, §§ 6, 7; 59 Del. Laws, c. 276, § 1; 70 Del. Laws, c. 149, §§ 28, 29, 30; 70 Del. Laws, c. 186, § 1.;
§ 126. Regulations and orders of Department and Secretary -- Effect; distribution.
(a) Regulations and orders promulgated or issued by the Department of Health and Social Services in accordance with authority conferred upon it have the force and effect of law and supersede all local ordinances and regulations which are inconsistent therewith.
(b) Municipalities and local public health officials may with the consent and approval of the Secretary of the Department of Health and Social Services or the Secretary's designee adopt such ordinances or regulations in addition to the regulations or orders of the Secretary of the Department of Health and Social Services or the Secretary's designee as are consistent with the law and the purposes set forth in this chapter.
(c) A copy of every regulation or order of the Department of Health and Social Services, giving the date that it takes effect, shall be filed with the Secretary of State, and copies of such regulations or orders shall be issued by the Department of Health and Social Services in pamphlet form for general distribution.
19 Del. Laws, c. 642, § 3; 22 Del. Laws, c. 327, § 3; Code 1915, § 738; 33 Del. Laws, c. 57, § 4; 34 Del. Laws, c. 69, § 1; Code 1935, § 745; 43 Del. Laws, c. 91, § 1; 46 Del. Laws, c. 312, § 1; 16 Del. C. 1953, § 125; 59 Del. Laws, c. 276, § 1; 70 Del. Laws, c. 149, §§ 31, 32, 33; 70 Del. Laws, c. 186, § 1.;
§ 127. Regulations and orders of Department and Secretary -- Duty of enforcement; penalty.
(a) All local boards of health, health authorities and officials, officers of the State and county institutions, police officers, sheriffs, constables and all other officers and employees of the State, or of any county, city or town thereof, shall enforce such quarantine orders, and such rules, regulations and orders as are adopted by the Department of Health and Social Services.
(b) In the event of failure or refusal on the part of any member of the local boards or other official or person mentioned in this section so to act, the member shall be fined not more than $50 for the first offense and not more than $100 for the second and each succeeding offense.
19 Del. Laws, c. 642, § 3; 22 Del. Laws, c. 327, § 3; Code 1915, § 738; 33 Del. Laws, c. 57, § 4; 34 Del. Laws, c. 69, § 1; Code 1935, § 745; 43 Del. Laws, c. 91, § 1; 16 Del. C. 1953, § 126; 59 Del. Laws, c. 276, § 1; 70 Del. Laws, c. 149, § 34; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 544, § 23.;
§ 128. Powers as advisory board; investigations; abatement of nuisances.
(a) The Department of Health and Social Services shall be an advisor to the authorities of the State in all matters pertaining to public hygiene. It may make special inspections of hospitals, prisons, asylums, almshouses and other public institutions, and may investigate the cause of any special disease or mortality in any part of the State, and may make such regulations and may adopt such measures, including quarantine, vaccination, etc., as it deems most efficient to eradicate all infectious diseases.
(b) In localities where there are no local boards of health, or where the same shall refuse or neglect to act, the Department may investigate all complaints made in writing, and if it shall find a nuisance to exist it shall order the same to be abated in a reasonable time. In such cases the Secretary of the Department of Health and Social Services or the Secretary's designee shall have all power and remedies given by law to local boards.