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 1, Title 16, § 122(3)o.1 and § 122(3)o.2 of the Delaware Code by striking them in their entirety and substituting in lieu thereof:

o. Establish standards for public health quality assurance in the operation of home health agency programs and regulate the public health practice of such programs.

I. A home health agency is any business entity or subdivision thereof, whether public or private, proprietary or not-for-profit, which provides home health care services.

A. Home health care services include but are not limited to the following:

1. Licensed nursing,

2. Physical therapy,

3. Speech therapy,

4. Audiology,

5. Occupational therapy,

6. Nutritional,

7. Social, or

8. Home health aides.

B. Home health agencies shall provide:

1. Two or more home health care services, one of which must be either licensed nursing services or home health aide services; or

2. Home health aide services exclusively which shall include, but not be limited to:

a. Feeding,

b. Bathing,

c. Dressing,

d. Grooming, and

e. Incidental household services.

II. For purposes of this definition, the following shall also apply:

A. Home health agency services are provided directly through employees of the agency or through contract arrangements, including those contracts with individuals considered to be independent contractors.

B. Home health agency services are provided to individuals in their home or private residence (excluding residents of hospitals and nursing facilities).

C. All home health agency services must be supervised by a registered nurse.

D. Home health agencies shall utilize written financial agreements between the agency and the consumer. These agreements shall minimally include:

1. Description of services purchased and the associated cost;

2. Acceptable method of payment(s) for these services; and

3. Outline of the billing procedures.

All payments by the consumer for services rendered shall be made directly to the agency or its billing representative and no payments shall be made to or in the name of individual employees/contractors/subcontractors of the agency.

III. A home health agency does not include:

A. Any visiting nurse service or home health service conducted by and for those who rely upon spiritual means through prayer alone for healing in accordance with the tenets and practices of a registered church or religious denomination.

B. An agency which solely provides services as defined in Chapter 94 of this Title.

C. An agency which provides staffing exclusively to other agencies (including but not limited to nursing facilities, home health agencies, hospitals).

IV. Upon receipt of an application for licensure and the non-refundable application fee of $500, the Department shall issue a license if the home health agency meets the requirements established under this Chapter. A license, unless sooner suspended or revoked, shall be renewed annually upon filing by the licensee and payment of an annual licensure fee of $300.

V. A provisional license, as authorized by the Department, shall be issued when health requirements are not met and a licensure fee of $300 has been submitted. A home health agency which has been issued a provisional license shall resubmit the application fee ($500) for reinspection prior to the issuance of an annual license.

VI. The Department shall not issue a license to any applicant, nor shall it renew any previously issued license unless, together with the proper licensure fee and filing/application, the agency/applicant has included evidence that it has obtained from the State Bureau of Identification a report of the entire criminal history record of any of its employees, contractors or contractors' employees who may enter the home or private residence of any resident of this State for the purposes of providing them with any of the services herein described.

VII. The Department may request the Superior Court to impose a civil penalty of not more than $10,000 for a violation of this Subsection or a regulation adopted pursuant to it. In lieu of seeking a civil penalty, the Department, in its discretion, may impose an administrative penalty of not more than $10,000 for a violation of this Subsection or a regulation adopted pursuant to it. Under this subparagraph, each day a violation continues constitutes a separate violation.

VIII. In determining the amount of any civil or administrative penalty imposed pursuant to subparagraph VII, the Court or the Department shall consider the following factors:

A. The seriousness of the violation, including the nature, circumstances, extent and gravity of the violation and the threat or potential threat to the health or safety of a consumer(s);

B. The history of violations committed by the person or the person's affiliate(s), employee(s), or controlling person(s);

C. The efforts made by the agency to correct the violation(s);

D. The culpability of the person or persons who committed the violation(s);

E. Any misrepresentation made to the Department; and

F. Any other matter that affects the health, safety or welfare of a consumer(s).

IX. The Department shall have the authority to collect administrative penalties. Any fees or civil or administrative penalties collected by the Department under this Section are hereby appropriated to the Department to carry out the purposes of this Section.

X. In the event of non-payment of the administrative penalty after all legal appeals have been exhausted, a civil action may be brought by the Secretary in Superior Court for collection of the administrative penalty, including interest, attorney fees and costs. In a civil action to collect the administrative penalty the validity, amount of appropriateness of such administrative penalty shall not be subject to review."

Approved June 30, 2002