CHAPTER 507

AN ACT TO AMEND TITLE 16, DELAWARE CODE, BY PROVIDING FOR A NEW CHAPTER TO BE DESIGNATED AS CHAPTER 12 AND RELATING TO SANATORIA, REST HOMES, NURSING HOMES, BOARDING HOMES AND RELATED INSTITUTIONS BY PROVIDING FOR A STATE BOARD OF EXAMINERS, IMPOSING POWERS AND DUTIES, LICENSES AND FEES, PENALTIES AND PROVIDING AN APPROPRIATION TO IMPLEMENT THE PROVISION OF THIS ACT.

Be it enacted by the General Assembly of the State of Delaware (two-thirds of all members elected to each branch thereof concurring therein):

Section 1. Title 16, Delaware Code, is hereby amended by adding thereto a new Chapter to be designated as Chapter 12 and to read as follows:

CHAPTER 12. SANATORIA, REST HOMES, NURSING

HOMES, BOARDING HOMES AND RELATED

INSTITUTIONS.

§ 1201. Definitions

A. As used in this act, unless otherwise stated, the following terms shall have the respective meanings hereinafter set forth or indicated:

B. The term "board" means the Delaware State Board of Examiners for Nursing Home Administrators hereinafter created.

C. The term "nursing home administrator" means the individual responsible for planning, organizing, directing and controlling the operation of a nursing home, or who in fact performs such functions, whether or not such functions are shared by one or more other persons.

D. The term "nursing home" means any institution, building or agency in which accommodation is maintained, furnished, or offered for any fee, gift, compensation, or reward for the care of more than four aged, infirm, chronically ill, or convalescent persons.

§ 1202. Board of Examiners for Nursing Home Administrators

A. There is hereby created the State Board of Examiners of Nursing Home Administrators which shall consist of the following members: Two members shall be nursing home administrators duly licensed and registered under this Act, one member actively engaged in the management, operation, or ownership of a proprietary nursing home and one member actively engaged in the management or operation of a non-profit nursing home caring for chronically ill or infirm aged patients, except that such members of the initial board shall be required only to possess the qualifications and be eligible for licensure as required under this Act. One member shall be a physician licensed to practice in this State; one member shall be selected from any profession concerned with the care of chronically ill and infirm aged patients; and one member actively engaged in the management, operation or ownership of a nursing home in which accommodation is maintained or furnished for the care of not more than fifty (50) aged, infirm, chronically ill or convalescent persons, two members representative of the public at large; provided, however, that no more than two of the members of the board shall be officials or full-time employees of State or local governments; and provided further, that less than a majority of the board shall be representative of a single profession or institutional category. All members of the board shall be citizens of the United States or shall have declared their intent to become citizens of the United States, and shall be residents of this State.

B. One member of the initial board shall be appointed for a one year term of office; three members of the initial board shall be appointed for a two year term of office; and three members of the initial board shall be appointed for a three year term of office. Thereafter, the term of office for each member of the board shall be three years. No member shall serve more than two consecutive full terms.

C. Appointments to the board shall be made by the governor after consultation with the associations and societies appropriate to the disciplines and professions representative of the vacancies to be filled. The Governor may remove any examiner for misconduct, incapacity, incompetence, or neglect of duty after the examiner so charged has been served with a written statement of charges and has been given an opportunity to be heard.

§ 1203. Organization of Board

The board shall elect from its membership a chairman, vice-chairman and secretary-treasurer, and shall adopt rules and regulations to govern its proceedings. All members shall serve without compensation except that they shall be reimbursed for reasonable and necessary expenses incident to their duties as members of the board. The administrative, ministerial, fiscal, clerical, and inspection functions shall be performed by the Division of Physical Health of the Department of Health and Social Services.

§ 1204. Duties of the Board

A. Develop, impose and enforce standards which must be met by individuals in order to receive a license as a nursing home administrator, which standards shall be designed to insure that nursing home administrators shall be individuals who are of good character and are otherwise suitable, and, who, by training or experience are qualified to serve as nursing home administrators.

B. Develop and apply appropriate techniques, including examination and investigations, for determining whether individuals meet such standards.

C. Issue licenses to individuals, after application of such techniques, determined to meet such standards, and for cause, to revoke or suspend licenses previously issued by the board in any case where the individual holding such license is determined substantially to have failed to conform to the requirements of such standards.

D. Establish and implement procedures designed to insure that individuals licensed as nursing home administrators will, during any period that they serve as such, comply with the requirements of such standards.

E. Receive, investigate, and take appropriate action with respect to, and including the revocation of a license, if necessary, for cause, on any charge or complaint filed with the board to the effect that any individual licensed as a nursing home administrator has failed to comply with the requirements of such standards.

F. Conduct a continuing study and investigation of nursing homes, and administrators of nursing homes within the state with a view to the improvement of the standards imposed for the licensing of such administrators and of procedures and methods for the enforcement of such standards with respect to administrators of nursing homes.

G. Recognize, or cause to be conducted, one or more courses of instruction and training sufficient to meet the requirements for licensure and make provisions for the conduct of such courses and their accessibility to residents of this state. The board may approve courses conducted within and without this state as sufficient to meet the education and training requirements hereof. For purposes of this subdivision, the board shall have the authority to receive through the single agency for Title XIX and disburse Federal funds received pursuant to Section 1908 (e) (1) of the Social Security Act.

§ 1205. Qualifications for Licensure

A. The board shall have exclusive authority to issue licenses to qualified persons as nursing home administrators, and shall establish qualification criteria for such nursing home administrators. No license shall be issue to a person as a nursing home administrator unless:

(1) he is at least 21 years of age, of good moral character and otherwise suitable and unless he is of sound physical and mental health;

(2) he has satisfactorily met standards set by the board, which standards shall be designed to insure that nursing home administrators will be individuals who, by training or experience are qualified to serve as nursing home administrators.

(3) he has passed an examination approved by the board and designed to test for competence in the subject matters referred to in clause (2) hereof or unless he has been approved by the board through the development and application of other appropriate techniques.

Provided, however, nothing in this act or the rules and regulations thereunder shall be construed to require an applicant for a license as a nursing home administrator or for a provisional license, who is certified by a recognized church or religious denomination which teaches reliance on spiritual means alone for healing as having been approved to administer institutions certified by such church or denomination for the care and treatment of the sick in accordance with its teachings, to demonstrate proficiency in any medical techniques or to meet any medical educational qualifications or medical standards not in accord with the remedial care and treatment provided in such institutions.

B. Notwithstanding anything in subdivision A above to the contrary, persons meeting the standards of good moral character, suitability, age, education, and citizenship, and who have served as a nursing home administrator during all of the calendar year immediately preceding the calendar year in which the requirements prescribed by the applicable provisions of Title XIX of the Social Security Act are first met by the State and who have been certified, upon the filing of an application, by the State Board of Health shall be granted a temporary license as "nursing home administrator" for a period which ends after being in effect for two years or until June 30, 1972, or until the individual meets the qualifications of a fully licensed nursing home administrator, whichever is earlier. All persons applying for a license after the effective date hereof must meet the conditions and requirements as may be prescribed by such board.

§ 1206. License fees

A. Eaeh person licensed as a nursing home administrator shall be required to pay initial and renewal license fees in the amount of $75.00. An initial license shall expire on June 30 of the year following its issuance, and shall be renewable pursuant to standards adopted by the board.

B. All fees collected under the provisions of this act shall be paid to the State Treasurer, who shall keep the same in the general revenue fund of the State Treasury.

§ 1207. Reciprocity with other states

The board may issue a nursing home administrator's license, without examination, to any person who holds a current license as a nursing home administrator from another jurisdiction, provided that the board finds that the standards for licensure in such other jurisdiction are at least the substantial equivalent of those prevailing in this state; and that the applicant is otherwise qualified.

§ 1208. Emergency performance

In the event that a licensed nursing home administrator is removed from his position by death or other unexpected cause, the owner, governing body or other appropriate authority of the nursing home suffering such removal may designate an acting nursing home administrator who may serve subject to such regulations set forth and approved by the board.

§ 1209. Penalties

A. It shall be a misdemeanor for any person to:

(1) On and after July 1, 1970, act or serve in the capacity of a nursing home administrator unless he is the holder of a license as a nursing home administrator, issued in accordance with this act.

(2) Sell or fraudulently obtain or furnish any license or aid or abet therein.

(3) Practice as a nursing home administrator, under cover of any license or registration illegally or fraudulently obtained or unlawfully issued.

(4) Practice as a nursing home administrator, or use in connection with his or her name any designation tending to imply that he or she is a nursing home administrator unless duly licensed and registered to so practice under the provisions of this Act.

(5) Practice as a nursing home administrator during the time his or her license or registration issued under the provisions of this Act, shall be suspended or revoked.

(6) Otherwise violate any of the provisions of this Act.

B. Such misdemeanor shall be punishable by a fine of not more than 500 dollars or by imprisonment for not more than six months or by both such fine and imprisonment.

§ 1210. Disciplinary proceedings

A. The license of any person practicing or offering to practice nursing home administration or the license of a provisional nursing home administrator may be revoked or suspended, or such licensee may be reprimanded, censured or otherwise disciplined in accordance with the provisions of this act upon decision and after due hearing in any of the following cases:

(1) Upon proof that such licensee is unfit or incompetent by reason of negligence, habits or other causes;

(2) Upon proof that such licensee has willfully or repeatedly violated any of the provisions of this Act or the rules enacted in accordance therewith; or willfully or repeatedly acted in a manner inconsistent with the health and safety of the patients of the home in which he is the administrator;

(3) Upon proof that such licensee is guilty of fraud or deceit in the practice of nursing home administration or in his or her admission to such practice;

(4) Upon proof that such licensee has been convicted in a court of competent jurisdiction, either within or without this State, of a felony.

B. The members of the board shall have jurisdiction to hear all charges brought under the provisions of this act against persons licensed as nursing home administrators or licensed as provisional nursing home administrators and upon such hearings shall determine such charges upon their merits. If the board determines that such person is guilty of the charges, the board may revoke his license, suspend him from practice, or reprimand, censure or otherwise discipline such licensee.

C. Proceedings under this section shall be begun by filing with the board charges in writing and under oath. Such charges may be preferred by any person, corporation, association or by the board. Thereupon the chairman of the board shall designate three or more members thereof as a hearing committee, or other qualified person, as a hearing officer to hear the charges and to report to the board thereon.

D. At such hearing the licensee shall have the right to appear either personally or by counsel or both, to produce witnesses and evidence on his own behalf, to cross-examine witnesses and to have subpoenas issued in his behalf by the hearing committee or the hearing officer. The hearing committee or the hearing officer shall make a written report to the board of the findings and recommendations which shall be considered by the board in arriving at its determination.

E. Members of the hearing committee or the hearing officer shall have the authority to issue subpoenas, compel the attendance of witnesses, administer oaths and take testimony concerning all matters within the jurisdiction of the board. Such board shall not be bound by the strict rules of evidence in the conduct of its proceedings but any determinations made shall be founded upon sufficient legal evidence to sustain them.

§ 1211. Judicial review

Any applicant or licensee who is dissatisfied with the decision of the board as a result of the hearing provided in section 1210 may, within thirty (30) days after the mailing or service of the notice of decision as provided in said section, file a Notice of Appeal to the Superior Court of the County in which the nursing home is located, and serve a copy of said Notice of Appeal upon the board. The board shall promptly certify and file with the Court a copy of record and decision, including the transcript of the hearings on which the decision is based. Proceedings thereafter shall be governed by the rules of the Superior Court of the State of Delaware.

§ 1212. Restoration of licenses

A. The board may, in its discretion, reissue a license to any person whose license has been revoked.

B. Application for the reissuance of a license shall not be made prior to one year after revocation and shall be made in such manner as the board may direct.

C. If a person convicted of a felony or crime deemed to be a felony is subsequently pardoned by the Governor of the State where such conviction was had or by the President of the United States, or shall receive a certificate of good conduct granted by the board of parole, the board may, in its discretion, on application of such person and on the submission of evidence satisfactory to the board, restore to such person the nursing home administrator's license.

§ 1213. Operation of Nursing Home; licensed supervisor

No nursing home within this State shall operate except under the supervision of an administrator licensed in the manner provided in this Chapter.

Section 2. Severability

If any section or provision of this Act shall be declared unconstitutional or void by any court of competent jurisdiction, or the applicability thereof to any person or circumstances shall be held invalid, the constitutionality and validity of the remainder of the Act and applicability thereof to other persons and circumstances shall not be affected thereby, and to this end the sections and provisions of this Act are declared to be severable.

Section 3. Appropriation

The sum of $1,000.00, or so much thereof as may be necessary, is hereby appropriated out of any moneys in the State Treasury in the general fund to the credit of the State Purposes Fund, not otherwise appropriated, to defray the expenses of the Board including personal services, its operation and maintenance in carrying out the provisions of this Act for the fiscal year ending June 30, 1971. Such money shall be payable from the State Treasury on the audit and warrant of the comptroller on vouchers certified or approved in the manner prescribed by law.

Section 4. This Act shall take effect on July 1, 1970.

Section 5. This Act does not affect penalties that were incurred, and proceedings that were begun before its effective date.

Approved June 4, 1970.