CHAPTER 79

FORMERLY

SENATE BILL NO. 218

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 11, TITLE 16 OF THE DELAWARE CODE, RELATING TO STANDARDS OF CARE FOR NURSING HOMES PROVIDING CARE TO MEDICAID RECIPIENTS.

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 the following subchapter:

"SUBCHAPTER IV. Nursing Home Compliance with Title XIX of the Social Security Act. §1141. Standards of Care for Nursing Homes Providing Care to Medicaid Recipients

(a) Any nursing facility as defined in 42 U.S.C. sec. 1396r(a) shall comply with all requirements regarding such facilities contained in Title XIX of the Social Security Act [42 U.S.C. sec. 1396 et seq.] and in any federal regulation issued pursuant thereto.

(b) For any violation of subsection (a), a nursing facility shall be subject to one or more of the following remedies:

(1) Denial of payment with respect to any recipient under the State Medicaid program admitted to the nursing facility, with notice to the public and the facility as provided for by regulations promulgated by the Department.

(2) A civil fine between 2% to 100% of a facility's current per diem rate, which shall be collected with interest at the legal rate of interest, for each day in which a facility fails to comply with a requirement constituting a separate violation. Funds collected as a result of imposition of such a penalty shall be applied to the protection of the health or property of residents of the nursing facility found to have been in violation, including payment for the costs of relocation of residents to other facilities, maintenance of operation of a facility pending correction of deficiencies or closure, and reimbursement of residents for personal funds lost.

(3) The appointment, pursuant to regulations adopted by the Department, of temporary management to oversee the operation of the facility and to assure the health and safety of the facility's resident.

(4) In the case of an emergency, the closure of the facility, the transfer of residents in that facility or other facilities, or both.

(c) In the case of a nursing facility which, on 3 consecutive standard surveys conducted pursuant to the rules or regulations promulgated by the Department, has been found to have provided substandard quality of care or has otherwise failed to comply with the requirement imposed pursuant to (a) or (e) of this section, the Department shall (regardless of what other remedies are provided):

(1) impose the remedy described in subsection (b) (1) and;

(2) monitor the facility pursuant to regulations promulgated by the Department, until the facility has demonstrated, to the satisfaction of the Department, that the facility is in compliance with the requirements imposed pursuant to (a) or (e) of this section, and that the facility will remain in compliance with such requirements.

(d) If a nursing facility has failed to comply with any of the requirements pursuant to (a) or (e) of this section, within 3 months after the date the facility is found to be out Of compliance with such requirements, the Department shall impose the remedy described in (b) (1) for all individuals who are admitted to the facility after such date.

(e) The Department may establish and promulgate such rules and regulations governing the administration and operation of this section as may be deemed necessary and which are not inconsistent with the laws of this State.

(f) The State Board of Health shall have jurisdiction to hear any matter arising under subsection (a) and (e) and shall have the power to impose any remedy listed under subsection (b), (c), and (d). Any party who is not satisfied with a decision of the Board may appeal to the Superior Court for the County in which the facility is located. Such appeal must be filed within 30 days from the date of the Board's decision and shall be on the record made before the Board.

(g) This section is intended to be applicable solely to nursing facilities as defined by 42 U.S.C. sec. 1396r(a) and shall not alter, amend, repeal, restrict, or otherwise affect any existing Medicaid appeals procedures established by the Department."

Section 2. If any clause, sentence, section, provision or part of this Act shall be adjudged to be unconstitutional or invalid for any reason by any court of competent jurisdiction, such judgment shall not affect the remainder of this Act which shall remain in full force and effect.

Section 3. This Act shall take effect October 1, 1989.

Approved July 10, 1989.