CHAPTER 442

FORMERLY

SENATE BILL NO. 463

AN ACT TO AMEND CHAPTER 11, TITLE 16, OF THE DELAWARE CODE RELATING TO THE TREATMENT AND CARE OF PATIENTS AND RESIDENTS IN MEDICAL OR LONG TERM CARE FACILITIES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Title 16, Chapter 11, of the Delaware Code by adding a new subchapter thereto, to be designated as Subchapter Ill which shall read as foUows:

"SUBCHAPTER III. ABUSE, NEGLECT OR MISTREATMENT OF PATIENTS OR RESIDENTS.

§1131. Definitions.

When used in this subchapter the following words shall have the meaning herein defined. To the

extent the terms are not defined herein, the words are to have their commonly accepted meaning.

(a) 'Abuse' shall mean:

1. Physical abuse by intentionally and unnecessarily inflicting pain or injury to a patient or resident. This includes, but is not limited to, hitting, kicking, pinching, slapping, pulling hair or any sexual molestation.

2. Emotional abuse which includes, but is not limited to, ridiculing or demeaning a patient or resident, making derogatory remarks to a patient or resident or cursing directed towards a patient or resident, or threatening to inflict physical or emotional harm on a patient.

(b) 'Mistreatment' shall include the intentional inappropriate use of medications, isolation, or physical or chemical restraints on or of a patient or resident.

(c) 'Neglect' shall mean:

I. Intentional lack of attention to physical needs of the patient or resident including, but not limited to toileting, bathing, meals and safety.

2. Intentional failure to report patient or resident health problems or changes in health problems or changes in health condition to an Immediate supervisor or nurse.

3. Intentional failure to carry out a prescribed treatment plan for a patient or resident.

(d) 'Facility' shall include any facility required to be licensed under Chapter II of Title 16 of the Delaware Code. It shall also include any facility operated by or for the State which provides long term care residential services.

(e) 'Department' shall mean the Department of Health and Social Services or its designee.

(1) 'Person' means a human being and where appropriate a public or private corporation, an

unincorporated association, a partnership, a government or governmental Instrumentality.

(g) 'High managerial agent' means an officer of a facility or any other agent in a position of comparable authority with respect to the formulation of the policy of the facility or the supervision in a managerial capacity of subordinate employees.

§1132. Reporting Requirements.

(I) Any employee of a facility or anyone who provides services to a patient or resident of a facility on a regular or intermittent basis who has reasonable cause to believe that a patient or resident in a facility has been abused, mistreated or neglected shall immediately report such abuse, mistreatment or neglect to the Department by oral communication. A written report shall be filed by him within forty eight hours after he first gains knowledge of the abuse, mistreatment or neglect.

(2) Any person required by the above provision to make an oral and a written report who fails to do so shall be liable for a criminal fine not to exceed one thousand dollars.

In addition to those persons subject to the provisions of subsection (I) any other person may make such a report. if such persons have reasonable cause to believe that a patient or resident of a facility has been abused, mistreated or neglected.

§1133. Contents of Reports.

1. The reports required under this subschapter shall contain the following information: the name and sex of the patient or resident; the name and address of the facility in which he resides; the age of the patient or resident. if known: the name and address of the reporter and where he can be contacted; any information relative to the nature and extent of the abuse, mistreatment or neglect, and if known to the reporter any information relative to prior abuse, mistreatment or neglect of such patient or resident; the circumstances under which the reporter became aware of the abuse, mistreatment or neglect; what action, if any, was taken to treat or otherwise assist the patient or resident; and any other information which the reporter believes to be relevant in establishing the cause of such abuse, mistreatment or neglect.

§1134. Powers and Duties of the Department.

The Department upon receipt of an oral or written report shall:

(1) Investigate and evaluate the information contained in such reports. An investigation and evaluation shall be made within twenty. four (24) hours. if the Department has reasonable cause to believe that the patient's or resident's health or safety is in immediate danger from further abuse, mistreatment or neglect and within ten (10) days for all other such reports. The investigation herein required shall include a visit to the facility, a private interview with the patient or resident allegedly abused, mistreated or neglected, a determination of the nature, extent and cause or causes of the injuries, the identity of the person or persons responsible therefor and all other pertinent facts.

(2) Evaluate the environment of the facility named in the report and make a determination of the potential risk of any physical or emotional injury to any other patient or resident of that facility. The evaluation and investigation required herein and above shall be in writing,

(3) Evaluate the environment of the facility named in the report and make a determination of the potential risk of any physical or emotional injury to any other patient or resident of that facility. The evaluation and investigation required herein and above shall be in writing,

(4) In the event that the health or safety of a patient or resident is in Immediate danger from further abuse, mistreatment or neglect or if a patient or resident has died because of abuse, mistreatment or neglect, the Department shall forthwith notify the appropriate police agency.

(5) The secretary is empowered to establish and promulgate rules and regulations to implement the provisions of this subchapter.

§1135. Immunities and Other Protections.

(I) No person making any oral or written report pursuant to this subchapter shall be liable in any civil or criminal action by reason of such report where such report was made in good faith or under the reasonable belief that such abuse. mistreatment or neglect has taken place.

(2) No facility shall discharge, or In any manner discriminate or retaliate against any person, by any means whatsoever, who in good faith makes or causes to be made, a report under this subchapter, or who testifies or who is about to testify In any proceeding concerning abuse, mistreatment or neglect of patients or residents in said facility.

(3) Any facility which discharges, discriminates or retaliates against a person because he has reported, testified or is about to testify concerning abuse, mistreatment or neglect of patients or residents shall be liable to such person for treble damages, costs and attorney fees. Where a facility discharges, demotes or retaliates by any other means, against a person after he made a report, testified, or was subpoenaed to testify as a result of a report required under this subchapter, there shall be a rebuttable presumption that such facility discharged, demoted or retaliated against such person as a result of such report or testimony.

(4) This section shall not apply to any person who has engaged in the abuse, mistreatment or neglect of a patient or resident.

§1136 Violation*.

Any person who knowingly abuses„ mistreats or neglects a patient or resident of a facility shall be guilty of a Class A Misdemeanor. Where the abuse, mistreatment or neglect results in serious physical injury then such person shall be guilty of a Class I) Felony. Where the abuse, mistreatment or neglect results in death then such person shall be guilty of a Class A Felony.

(1) Any member of the board of directors or a high managerial agent who knows that patients or residents of the facility are being abused, mistreated or neglected and fails to promptly take corrective action shall be guilty of a Class A misdemeanor.

§1137. Abuse, Mistreatment, Neglect or Failure to Report such Incidents by Licensed or Registered Professional; Suspension or Revocation of License.

Upon a finding of abuse, mistreatment or neglect, or failure to report such instances by a licensed or registered professional, the Department or the Attorney General shall notify the appropriate licensing or registration board. If. after a hearing, a licensed or registered professional is found to have abused, mistreated or neglected a patient or resident or has failed to report such instance, the appropriate board shall suspend or revoke such person's license.

§1138. Facilities; Suspension or Revocation of License.

Upon a finding that abuse, mistreatment or neglect has occurred in a facility, the Department or the Attorney General shall notify the appropriate licensing board and, if such facility receives public funding, the appropriate state or Federal agency. If, after a hearing, it is determined that a member of the board of directors or a high managerial agent knew that patients or residents were abused, mistreated or neglected and failed to promptly take corrective action, the appropriate board shall suspend or revoke such facility's license.

§1139. Treatment by Spiritual Means.

Nothing in this subchapter shall be construed to mean that a patient or resident is abused, mistreated or neglected for the sole reason he relies upon, or is being furnished with, treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, nor shall anything In this subchapter be construed to authorize or require any medical care or treatment over the implied or express objection of said patient or resident.

§1140. Jurisdiction

The Superior Court shall have original and exclusive jurisdiction over violations of this subchapter."

Section 2. The provisions of this Act are severable, and, if any phrase, clause„ sentence or provision of this Act, or the application of such phrase, clause, sentence or provisions shall be held invalid, the remainder of this Act and the application of such provision or provisions to persons or circumstances other than those to which it was held invalid or inconsistent shall not be affected thereby.

Section 3. Nothing contained in this subchapter shall be deemed to preclude prosecution under any other titles of the Delaware Code nor shall these sections be deemed to repeal any other sections of the Delaware Code.

Approved July 7, 1986.