CHAPTER 308

FORMERLY

HOUSE BILL NO. 190

AS AMENDED BY

SENATE AMENDMENT NO. 2

AN ACT TO AMEND TITLE 16 OF THE DELAWARE CODE RELATING TO A PERSONAL ASSISTANCE SERVICES AGENCY ACT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Three-fifths of all members elected to each house thereof concurring therein):

WHEREAS, Personal Assistance Services Agencies refer direct care workers to provide home care services to a consumer in the consumer’s residence; and

WHEREAS, nothing in this Act shall neither preclude nor condone any Personal Assistance Services Agency from referring contractor direct care workers; and

WHEREAS, licensure of Personal Assistance Services Agencies helps protect consumers, support consumer choice, and establish standards to further the mission of the Department of Health and Social Services to improve the quality of life for Delaware's citizens by promoting health and well-being, fostering self-sufficiency, and protecting vulnerable populations.

WHEREAS, by enacting this Act, the General Assembly hopes to provide consumer protection to Delawareans through licensure of Personal Assistance Services Agencies.

NOW THEREFORE:

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, Section 122(3) of the Delaware Code, by inserting therein a new subsection (x) to read as follows:

‘x. Establish standards for regulation of the operation of Personal Assistance Services Agencies, and grant licenses for the operation of such Agencies to persons, associations or organizations that have been approved in accordance with this Title and that pay the appropriate licensure fee.

1. A Personal Assistance Services Agency is any business entity or subdivision thereof, whether public or private, proprietary or not-for-profit, which refer direct care workers to provide personal assistance services to individuals primarily in their home or private residence (excluding residents of hospitals and nursing facilities).

2. Personal Assistance Services means the provision of services that do not require the judgment and skills of a licensed nurse or other professional. The services are limited to individual assistance with, or supervision of, activities of daily living, homemaker services, companion services, and those other services as set out in 24 Del. C. Section 1921(a)(19).

3. A Personal Assistance Services Agency does not include:

A. An agency providing skilled professional health care services.

B. An agency which 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, and hospitals).

4. Upon receipt of an application for licensure and the non-refundable application fee of $250, the Department shall issue a license if the Personal Assistance Services Agency meets the requirements established under this paragraph. The Department shall be authorized to revoke or suspend any license in accordance with Department regulations. A license is not transferable from person to person or entity to entity.

5. A license, unless sooner suspended or revoked, shall be renewed annually upon filing by the licensee and payment of an annual licensure fee of $100, provided that an applicant meets requirements as outlined in the Department’s regulations.

6. 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, application, and evidence of compliance with Department regulations, the Personal Assistance Services Agency/applicant has included:

A. Evidence that the Personal Assistance Services Agency has obtained the following information for each of the direct care workers who may enter the home or private residence of any resident of this State for the purpose of providing them with any of the services herein provided:

i. In accordance with 16 Del. C. § 1145, a criminal history report from the State Bureau of Identification. The State shall cover all costs associated with obtaining the criminal history reports.

ii. Certification from the Department of Health and Social Services that the direct care worker has not been named in the Central Register as a perpetrator of adult abuse.

iii. Certification from the Department of Services for Children, Youth, and Their Families that the direct care worker has not been named in the Central Register as the perpetrator of child abuse.

B. Evidence that the Personal Assistance Services Agency is complying with the State’s drug testing policy as set forth in 16 Del. C. §1146.

C. Evidence that the Personal Assistance Services Agency discloses to its consumers the Personal Assistance Services Agency’s and the direct care worker’s status with respect to attendant tax, worker’s compensation, and liability insurance obligations.

7. The Department may request the Superior Court to impose a civil penalty not to exceed $5,000 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 not to exceed $5,000 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.

8. In determining the amount of any civil or administrative penalty imposed pursuant to subsection (3)(x)(7), 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 and safety of a consumer or consumers;

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

C. The efforts made by the Personal Assistance Services Agency to correct the violation(s);

D. The culpability of the person or persons whom 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 or consumers.

9. 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 and appropriateness of such administrative penalty shall not be subject to review.

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

(a) 11. The Department shall have the power to promulgate rules and regulations necessary to implement the provisions of this subsection.’”

Approved June 27, 2006