CHAPTER 76

FORMERLY

SENATE BILL NO. 195

AN ACT TO AMEND CHAPTER 11, TITLE 16 OF THE DELAWARE CODE RELATING TO THE LONG-TERM CARE OMBUDSMAN AND PROVIDING FOR THE ESTABLISHMENT OF THE OFFICE OF THE LONG-TERM CARE OMBUDSMAN WITHIN THE DEPARTMENT OF HEALTH AND SOCIAL SERVICES, DIVISION OF AGING.

WHEREAS, States are required by the Older Americans Act Amendments of 1987 (P.L. 100-175) to have an Office of the Long-Term Care Ombudsman as set forth In 42 U.S.C. section 3027(a)(12).

NOW THEREFORE:

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

Section 1. Amend Chapter 11, Title 16 of the Delaware Code by adding a new Subchapter thereto as follows:

"Subchapter V. Office of the Long-Term Care Ombudsman.

Section 1150. Creation of the Office of the Long-Term Care Ombudsman.

There Is hereby established within the Department of Health and Social Services, Division of Aging, the Office of the Long-Term Care Ombudsman as provided by the Older Americans Act Amendments of 1987 (P.L. 100-175).

Section 1151. Definitions as used in this Subchapter:

(a) 'Agency' means any private or public agency operating In the State of Delaware, one of whose purposes is the funding, provision, or regulation of health care services.

(b) 'Long-Term Care Facility' means any facility, institution, foster home, group living arrangement, adult care home, or any other facility which Is required to be licensed under this Chapter.

(c) 'Long-Term Care Ombudsman' or 'Ombudsman' means the person designated under section 307(a)(12) of the Older Americans Act Amendments of 1987 (42 U.S.C. 3027(a)(12)), to perform the mandated functions of the Office of the Long-Term Care Ombudsman In the State of Delaware, or his designee.

(d) 'Record' means any medical, social, or financial information pertaining to a resident of a long-term care facility which Is maintained by any agency regulated under this Chapter or Chapter 10 of this Title; provided, however, that 'record' shall not include criminal investigative files.

Section 1152. Purpose and duties.

The purpose of the Ombudsman Is to provide a program to advocate for and promote the adequacy of care received and the quality of life experienced by residents of long-term care facilities in Delaware. The Ombudsman shall have the power to:

(a) Investigate and seek to resolve complaints and concerns made by or on behalf of residents of long-term care facilities In the State of Delaware relating to the actions or inactions of any long-term care facility or agencies which may adversely affect the health, safety, welfare or rights of such residents;

(b) Promote the well-being and quality of life of residents of long-term care facilities;

(c) Enter Into written agreements of understanding, cooperation and collaboration with other government agencies that provide funding, oversight, Inspection or operation of long-term care facilities;

(d) Establish and carry out program policies and procedures for eliciting, receiving, investigating, verifying, referring and resolving residents' complaints;

(e) Receive and investigate complaints of abuse, mistreatment, or neglect in accordance with Subchapter III of Chapter 11, Title 16 of the Delaware Code;

(f) Promulgate rules and regulations and adopt policies to implement this Subchapter; and

(g) Perform other duties as mandated by the Older American Act of 1965, as amended.

Section 1153. Access to facilities and patient records.

(a) The Ombudsman shall have access to any facility or record which Is relevant to the performance of his responsibilities under this Chapter, including any record otherwise rendered confidential under Delaware law; provided however, that the Ombudsman shall obtain the consent of any resident who is able to consent or any resident's legal agent or guardian for access to such resident's records.

(b) The Ombudsman may initiate an investigation of any long-term care facility independent of the receipt of a specific complaint.

(c) Any State agency to which the Ombudsman refers a complaint shall periodically advise the Ombudsman of the status of the investigation of the complaint and notify the Ombudsman in a timely manner of the disposition of the complaint.

(d) The Ombudsman shall protect the confidentiality of residents' records and shall permit access to such records only in accordance with regulations of the Office of the Long-Term Care Ombudsman.

(e) The Ombudsman shall protect the confidentiality of files maintained by the Ombudsman and shall permit access to such files only under conditions as the Ombudsman, In his sole discretion, deems appropriate.

(f) Notwithstanding any other provision of this Subchapter, the Ombudsman Shall not disclose the identity of any complainant or resident unless a court orders such disclosure or the complainant or resident consents in writing to the disclosure of his identity.

Section 1154. Good faith immunity.

(a) Persons and agencies participating In an investigation under this Chapter shall be Immune from civil liability arising from their good faith participation in the Investigation.

(b) No long-term care facility, other entity or person shall engage in retaliation or reprisals against any person or agency due to such person or agency's participation In an Investigation under this Chapter.

Section 1155. Sanctions for Interference with the Ombudsman. '

(a) No person, agency, or long-term care facility shall willfully interfere with the performance of the duties and exercise of the powers of the Ombudsman provided In this Chapter.

(b) Whoever violates this Subchapter shall be fined not more than $100 for the first offense and not less than $100 nor more than $1000 for each subsequent offense. Each violation shall be considered a separate offense.

Section 1156. Jurisdiction.

(a) Justices of the Peace shall have jurisdiction over violations of this Subchapter.

(b) The Superior Court shall have jurisdiction over appeals of the decisions entered pursuant to Subsection (a) of this Section. Such appeals shall be on the record.

Section 2. Severability.

If any provision of this Subchapter is held invalid, such invalidity shall not affect toe remaining provisions of this Subchapter which can be given effect without the in alid provision, and to this end, the provisions of this Subchapter are declared to be severable.

Section 3. This Act shall become effective upon the signature of the Governor."

Approved July 10, 1989.