CHAPTER 159

FORMERLY

HOUSE BILL NO. 332

AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 2

AN ACT TO AMEND TITLE 16 AND 24 OF THE DELAWARE CODE RELATING TO NURSING HOME ADMINISTRATORS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Three-fifths of all members elected to each House thereof concurring therein):

Section 1. Amend Chapter 12, Title 16 of the Delaware Code by striking said Chapter in its entirety.

Section 2. Amend Title 24 of the Delaware Code by adding thereto a new Chapter 52, as follows:

"CHAPTER 52. Nursing Home Administrators

§5200. Objectives

This Act establishes the Board of Examiners of Nursing Home Administrators. The primary objective of the Board of Examiners of Nursing Home Administrators, to which all other objectives and purposes are secondary, is to protect the general public (especially those persons who are direct recipients of services regulated by this Chapter) from unsafe practices, and from occupational practices which tend to reduce competition or fix the price of services rendered. The secondary objectives of the Board are to maintain minimum standards of practitioner competency, and to maintain certain standards in the delivery of services to the public. In meeting its objectives the Board shall develop standards assuring professional competence; shall monitor complaints brought against regulated practitioners of occupational groups under the jurisdiction of the Board; shall adjudicate at formal complaint hearings; shall develop rules and regulations; and shall impose sanctions where necessary against persons in the occupational groups regulated by the Board.

§5201. Definitions

As used in this Chapter, unless otherwise stated:

(1) 'Board' means the Delaware State Board of Examiners for Nursing Home Administrators.

(2) 'Nursing home administrator' means the individual responsible for planning, organizing, directing and controlling the operations of a nursing home, or who in fact performs such functions, whether or not such functions are shared by one or more persons.

(3) '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 (4) aged, infirm, chronically ill or convalescent persons.

§5202. Board of Examiners for Nursing Home Administrators Created; membership; appointment; terms of office; removal of members

(a) There Is created the State Board of Examiners of Nursing Home Administrators which shall consist of the following members: Two (2) members nursing home administrators duly licensed and registered under this Chapter, one (1) member actively engaged in the management, operation or ownership of a proprietary nursing home, and one (1) actively engaged In the management or operation of a nonprofit 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 Chapter, one (1) member a physician licensed to practice in this State, one (1) member selected from any profession concerned with the care or chronically III and Infirm aged patients, and one (1) 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 (2) members representative of the public at large, provided, however, that no more than two (2) of the members or the Board shall be officials or fun-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 residents of this State.

(b) One (1) member of the initial Board shall be appointed for a one (1) year term of office, three (3) members of the initial Board shall be appointed for a two (2) year term of office, and three (3) members of the initial Board shall be appointed for a three (3) year term of office. Thereafter, the term of office for each member of the Board shall be three (3) years. No member shall serve more than two (2) 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.

(d) No member of the Board, while serving on the Board, shall be an officer of a local or state professional association.

(e) Each Board member shall be reimbursed for all expenses involved in each meeting, including travel; and in add tion shall receive not more than fifty dollars ($50) for each meeting attended, but not more than five hundred dollars ($500) in any calendar year. After ten meetings have been attended, the member shall not be compensated for any subsequent meetings attended in that year.

§5203. Same - Organization; Conduct of Business

(a) In the same month of each year the members shall elect, from among their number, a President, Vice President and Secretary, each officer shall serve no more than two consecutive terms in the same office.

(b) The Board shall hold a regularly scheduled business meeting at least once In each quarter of a calendar year and at such other times as the President deems necessary, or at the request of a majority of Board members.

(c) A majority of members shall constitute a quorum; and no action shall be taken without the affirmative vote of at least four members. Any member who fails to attend three consecutive meeting, or who fails to attend at least half of all regular business meetings during any calendar year, shall automatically upon such occurrence be deemed to have resigned from office and a replacement shall be appointed.

(d) Minutes of all meetings shall be recorded, and copies of the minutes shall be maintained by the Division of Business and Occupational Regulation. At any hearing where evidence Is presented, the hearing shall be recorded. Transcripts shall be made at the request and expense of any party.

§5204. Same - Duties

The duties of the Board shall be as follows:

(1) 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 suitable, and, who, by training or experience are qualified to serve as nursing home administrators;

(2) Develop and apply appropriate techniques, including examination and investigations, for determining whether individuals meet such standards;

(3) Issue licenses to individuals, after application of such techniques, whom it has determined 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;

(4) Establish and implement procedures designed to insure that individuals licensed as nursing home administrators shall, during any period, that they serve as such, comply with the requirements of such standards;

(5) Receive, Investigate and take appropriate action with respect to, and including the revocation of a license, If necessary, for cause, 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;

(6) 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;

(1) Recognize, or cause to be conducted, one (1) 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 in this State. The Board may approve courses conducted within and without this State as sufficient to meet the education and training requirements of this Chapter. For purposes of this subsection, the Board shall have the authority to receive through the single agency for Title XIX (42 U.S.C.A. 51396 et seq,) and disburse federal funds received pursuant to §1908 (e) (1) of the Social Security Act (42 U.S.C.A. §1396g (e) (1).

§5205. Qualifications for licensure

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 issued to a person as a nursing home administrator unless the applicant:

(1) is of full legal age, and otherwise suitable, and is of sound physical and mental health;

(2) 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) has passed an examination approved by the Board and designee to test for competence in the subject matters referred in paragraph (2) of this subsection or unless he has been approved by the Board through the development and application of other appropriate techniques.

Provided, however, nothing in this Chapter 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 a 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.

§5206. License fees

(a) Each person licensed as a nursing home administrator shall be required to pay initial and renewal license fees in the amount of $150. An initial license shall expire on June 30 of the period following its issuance and shall be renewable pursuant to standard adopted by the Board.

(b) All fees collected under the provisions of this Chapter shall be paid to the State Treasurer, who shall keep the same in the General Revenue Fund of the State Treasury.

§5207. 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 equivalent of those prevailing in this State and that the applicant Is otherwise qualified.

§5208. 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.

§5209. Penalties

(a) It shall be a violation of this Chapter for any person to:

(1) 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 Chapter.

(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 this Chapter;

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

(6) Otherwise violate this Chapter.

(c) Such violation shall be punishable by a fine of not more than $500.

§5210. Complaints

(a) Any nursing home administrator or member of the public who has a question or a complaint concerning any aspect of the operation of a nursing home may, during the regular business hours of a business day, contact the Board or the Division of Business and Occupational Regulation; or voice such question or complaint at a business meeting of the Board.

(b) The Board shall investigate any complaint, including oral and anonymous complaints; and shall follow through on those informal complaints which, upon investigation, appear to be valid and well-founded. in cases where the complainant is known to the Board, the Board shall, within one (1) week after receipt of the complaint, notify the complainant as to what action (if any) the Board intends to take in the matter. A complete record shall be kept of each complaint, formal or Informal; provided, however, that the complaints records may be purged after five (5) years.

§5211. Hearing procedures

(a) Upon the receipt of a complaint, the Board shall determine what action, if any, it shall take. if the Board decides not to take any further action, and the complainant is known to the Board, the Board shall forward by letter to the complainant its reasons for not taking further action. Where the Board has determined to take further action, the matter shall be heard by the Board within three (3) months from the date or which the complaint was received. The Board shall fix the time and place for a full hearing of the matter, and shall cause a copy of the complaint, together with a notice of the time and place fixed for the hearing, to be personally delivered or served upon the nursing home administrator at least thirty (30) days before the date fixed for the hearing. in cases where the nursing home administrator cannot be located or where personal service cannot be effected, substitute service shall be effected in the same manner as with civil litigation.

(b) All hearings shall be informal without the use of rules of evidence. if the Board finds, by a majority vote of all members, that the complaint has merit, the Board shall take such action permitted under this Chapter as it deems necessary. The Board's decision shall be in writing and shall include its reasons for such decision. A copy of the decision shall be mailed immediately to the nursing home administrator. The Board's decision shall become effective on the 30th day after the date it is mailed or served on the nursing home administrator, unless there is an appeal by the nursing home administrator to the Superior Court within that time.

(c) Where the nursing home administrator is in disagreement with the action of the Board, he may appeal the Board's decision to the Superior Court within thirty (30) days of service, or of the postmarked date of the copy of the decision mailed to him. Upon such appeal the Court shall hear the evidence de novo, and the filing of an appeal shall act as a stay of the Board's decision, pending final determination of the practitioner's appeal.

§5212. 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 discipline in accordance with the provlsons of this Chapter upon decision and after due hearings 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 wilfully or repeatedly violated this Chapter or the rules enacted in accordance therewith or wilfully 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 adminstration 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 Chapter 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 it may revoke his license, suspend him from practice or reprimand, censure or otherwise discipline such licensee.

(c) 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 arriving at its determination.

(d) 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.

§5213. Restoration of licenses

(a) The Board may at 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 (1) year after revocation and shall be made in such manner as the Board may direct.

(c) If a person convicted of 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 Pardons, the Board may at 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.

§5214. 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."

Approved July 13,1983.