CHAPTER 476

FORMERLY

SENATE BILL NO. 302

AS AMENDED BY HOUSE AMENDMENT NO. 3

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO THE ADULT ABUSE REGISTRY.

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

Section 1. Amend Chapter 85, Title 11 by striking §8564 in its entirety, and by replacing it with the following:

Ҥ 8564. Adult Abuse Registry Check.

(a) Definitions:

(1) ‘Abuse’ shall have the same meaning as contained in Section 1131 (1), Title 16 of this code and shall include mistreatment and financial exploitation as defined in section 1131 (2) and section 1131 (4), Title 16 of this code respectively.”

(2) ‘Child care facility’ means any child care facility that is required to be licensed by the Department of Services for Children, Youth and Their Families.

(3) ‘Direct access’ means the opportunity to have personal contact with persons receiving care during the course of one’s assigned duties.

(4) ‘Health care service provider’ means any person or entity that provides services in a custodial or residential setting where health, nutritional or personal care is provided for persons receiving care, including but not limited to hospitals, home health care agencies, adult care facilities, temporary employment agencies and contractors that place employees or otherwise provide services in custodial or residential settings for persons receiving care, and hospice agencies. ‘Health care service provider’ also does not include any private individual who is seeking to hire a self-employed health caregiver in a private home.

(5) ‘Neglect’ shall have the same meaning as contained in section 1131 (3), Title 16 of this code.

(6) ‘Nursing facility and similar facility’ means any facility required to be licensed under 16 Del. C. Ch.11. This includes but is not limited to facilities commonly called nursing homes, assisted living facilities, intermediate care facilities for persons with mental retardation, neighborhood group homes, family care homes and rest residential care facilities. Also included are the Stockley Center, the Delaware Psychiatric Center and hospitals certified by the Department of Health and Social Services pursuant to Title16 Del. C. § 5001 or § 5136.

(7) ‘Person receiving care’ means a person who, because of his physical or mental condition, requires a level of care and services suitable to his needs to contribute to his health, comfort, and welfare.

(8) ‘Person seeking employment’ means any person applying for employment with or in a health care service provider, nursing facility or similar facility or child care facility where the employment may afford direct access, or a person applying for licensure to operate a child care facility. It shall also include a self-employed health caregiver who has direct access in any private home.

(b) The name of any person found, after investigation by the Department of Health and Social Services, to have committed adult abuse or neglect shall be entered on the Adult Abuse Registry, provided, however, that such person may request an administrative hearing pursuant to Department of Health and Social Services regulations before such entry becomes final. The hearing officer for the administrative hearing shall have the power to compel the attendance of witnesses and the production of evidence. The finding by the hearing officer shall constitute the final decision of the Department of Health and Social Services and shall be appealable, on the record, by either party to Superior Court.

(c) No health care service provider, nursing facility or similar facility or child care facility shall hire any person seeking employment without requesting and receiving an Adult Abuse Registry check for such person from the Division of Long Term Care Residents Protection. Private individuals who are seeking to hire a self-employed health caregiver may request and receive an Adult Abuse Registry check on such caregiver. For purposes of this subsection, the Adult Abuse Registry check shall relate to substantiated cases of adult abuse or neglect.

(d) Any person or entity who requests an Adult Abuse Registry check under this section shall obtain a statement signed by the person seeking employment wherein the person authorizes a full release for the employer to obtain the information provided pursuant to such a check.

(e) Notwithstanding the provisions of this section, when exigent circumstances exist which require an employer subject to this section to fill a position in order to maintain the required or desired level of service, the employer may hire a person seeking employment on a conditional basis after the employer has requested an Adult Abuse Registry check. Any person hired pursuant to this subsection shall be informed in writing, and shall acknowledge in writing, that his or her employment is conditional and contingent upon receipt of the Adult Abuse Registry check.

(f) Records relating to the Adult Abuse Registry are not public records and are not subject to disclosure under 29 Del. C. Ch. 100. Such records may be disclosed other than as provided in this section only when disclosure would be in the best interest of the population served by the Department of Health and Social Services according to regulations promulgated by the Department.

(g) The Delaware Department of Health and Social Services shall be promulgate regulations to implement this section. Such regulations may include regulations for Adult Abuse Registry checks of contractors providing services in a custodial or residential setting for persons receiving care, regulations for the disclosure of Adult Abuse Registry records, regulations to establish hearing procedures and length of time on the Adult Abuse Registry, and regulations for the removal of a person from the Adult Abuse Registry before the expiration of his registration period where the Delaware Department of Health and Social Services deems that the person no longer poses a threat to any person receiving care.

(h) Costs associated with providing an Adult Abuse Registry check shall be borne by the State.

(i) Any employer who is required to request and receive an Adult Abuse Registry check and fails to do so shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. The Justice of the Peace Courts shall have jurisdiction over this offense.”

Section 2. The Department of Health and Social Services shall promulgate the regulations required by this Act within 120 days of this bill’s enactment. The provisions of this bill shall take effect 30 days after the regulations are promulgated. Until such time, the provisions of the current §8565, Title 11, Delaware Code shall remain in effect.

Approved July 26, 2000