Delaware Law

Information in this section can be found on current Delaware law in regards to HIV testing in health care settings. Additionally, information is provided on potential changes that may occur if the Delaware legislature adopts the full CDC’s recommendations for routine opt-out HIV testing.

Current Laws Pertaining to HIV/AIDS Testing in the State of Delaware:
Current HIV testing laws in Delaware are codified under Delaware Code Title 16. Chapter 7. Sexually Transmitted Diseases and Chapter 12 Informed Consent and Confidentiality. Subchapter I. HIV Related Test.

In 2009, Delaware adopted the full CDC recommendations for pregnant women only. Current law can be found here: Chapter 7: Sexually Transmitted Diseases Chapter 12: Informed Consent and Confidentiality. Subchapter I. HIV Related Test.

Status Regarding Adoption of the Full 2006 CDC Testing Recommendations in Delaware:
Additional changes to the code have been drafted in bill form in 2010 by the State of Delaware Division of Public Health for the adoption of routine opt-out testing in health care settings for all persons 13 through 64. Besides recommending full adoption of the CDC recommendations, the changes codify all of the requirements under a single chapter—Chapter 7. The draft bill will be introduced to the State legislature after it re-convenes in January 2012.

The draft bill defines routine opt-out testing and outlines consent requirements to read “…that the general consent for medical care shall encompass testing for HIV and that testing may be performed as a part of routine care unless it is declined and that the declination is noted in the medical record. A separate consent for HIV testing is not required.” The draft language also modifies the definition of “Informed Consent” by eliminating the extensive pre-test counseling requirements of opt-in testing. The new consent language states that the person being tested, or the legal guardian of that person, should be informed “ …both verbally and in writing, to an extent reasonably comprehensive to general lay understanding, of the nature of the proposed testing and of the risks and alternatives to testing which a reasonable person would consider material to the decision whether or not to undergo testing.” Both of these modifications help eliminate the unnecessary paperwork and extensive counseling requirements of opt-in testing, making it easier for medical providers to offer routine HIV testing.

Last, the draft bill adds language mandating a required offer of HIV testing of pregnant women in their first and third trimester, as well as at intake into labor and delivery if the results of previous tests are not available or documented in the patient’s chart—requirements stricter than those in current law. These standardized “offers” further improve chances of eliminating mother to child transmission during or at birth or through breastfeeding (Delaware HIV Consortium Policy Committee and Planning Council, 2010).