TITLE 16

Health and Safety

Regulatory Provisions Concerning Public Health

CHAPTER 11. LONG-TERM CARE FACILITIES AND SERVICES

Subchapter II. Rights of Residents


(a) It is the intent of the General Assembly, and the purpose of this section, to promote the interests and well-being of the residents in long-term care facilities.

(b) It is declared to be the public policy of this State that the interests of the resident shall be protected by a declaration of a resident's rights, and by requiring that all facilities treat their residents in accordance with such rights, which shall include the following:

(1) Each resident shall have the right to receive considerate, respectful, and appropriate care, treatment and services, in compliance with relevant federal and state law and regulations, recognizing each person's basic personal and property rights which include dignity and individuality.

(2) Each resident and the authorized representative under § 1122 of this title of such resident shall, prior to or at the time of admission, receive a written statement of the services provided by the facility including those required to be offered on an "as needed" basis, and a statement of related charges for services not covered under Medicare or Medicaid, or not covered by the facility's basic per diem rate. Upon receiving such statement, the resident and the resident's authorized representative under § 1122 of this title representative shall sign a written receipt which must be retained by the facility in its files.

(3) After admission, each facility shall submit to the resident or authorized representative, on a monthly basis, a written, itemized statement detailing, in language comprehensible to the ordinary layperson, the charges and expenses the resident incurred during the previous month.

a. The statement shall contain a description of specific services, equipment and supplies received, and expenses incurred for each such item.

b. The statement shall include an explanation of any items identified by code or by initials, but shall not include nursing home based physician charges if billed separately.

c. The facility shall make reasonable efforts to communicate the contents of the individual written statement to persons who it has reason to believe cannot read the statement.

(4) Each resident shall receive from the attending physician or facility physician complete and current information concerning the resident's diagnosis, treatment, and prognosis in terms and language the resident can reasonably be expected to understand, unless medically inadvisable.

(5) Each resident shall participate in the planning of the resident's medical treatment, including attendance at care plan meetings.

(6) Each resident may refuse medication or treatment and must be informed of the medical consequences of all medication and treatment alternatives.

(7) Each resident shall give prior informed consent to participation in any experimental research after a complete disclosure of the goals, possible effects on the resident and whether or not the resident can expect any benefits or alleviation of the resident's condition.

a. In any instance of any type of experiment or administration of experimental medicine, there shall be written evidence of compliance with this section, including the signature of the resident or the resident's authorized representative if the resident has been adjudicated incompetent.

b. A copy of signed acknowledgment or informed consent, or both when required, shall be forwarded to each signer and a copy shall be retained by the facility.

(8) At the bedside of each resident, the facility shall place and maintain in good order the name, address, and telephone number of the physician responsible for the resident's care.

(9) Each resident shall receive respect and privacy in the resident's own medical care program. Case discussion, consultation, examination, and treatment shall be confidential, and shall be conducted discreetly.

a. At the resident's discretion, persons not directly involved in the resident's care may not be permitted to be present during such discussions, consultations, examinations or treatment, except with the consent of the resident.

b. Personal and medical records shall be treated confidentially, and shall not be made public without the consent of the resident, except such records as are needed for a resident's transfer to another health-care institution or as required by law or third-party payment contract.

c. No personal or medical records shall be released to any person inside or outside the facility who has no demonstrable need for such records.

(10) Each resident shall be free from chemical and physical restraints imposed for purposes of discipline and convenience, and not necessary to treat the resident's medical condition.

(11) Each resident shall receive from the administrator or staff of the facility a courteous, timely, and reasonable response to requests, and the facility shall make prompt efforts to resolve grievances. Responses to requests and grievances shall be made in writing upon written request by the resident.

(12) Each resident shall be provided with information as to any relationship the facility has with other health-care and related institutions or service providers, including pharmacy and rehabilitation services, to the extent the resident is offered care or services from these related entities. Such information shall be provided in writing upon admission, and thereafter when additional services are offered.

(13) Each resident shall receive care that meets professional standards of care.

(14)a. Each resident may associate and communicate, including visits and visitation, privately and without restriction with persons and groups of the resident's own choice, on the resident's own or their initiative, at any reasonable hour.

b. Nothing in 77 Del. Laws, c. 49 precludes a long-term care facility, as defined in § 1102 of this title, from restricting visitations due to attempts to interfere with resident care, the presentation of a threat to staff, and residents, or personnel, or other actions disruptive to the facility's operations.

(15) Each resident may send and shall receive mail promptly and unopened.

(16) Each resident shall have access at any reasonable hour to a telephone where the resident may speak privately.

(17) Each resident shall have access to writing instruments, stationery, postage, and the Internet.

(18) Each resident has the right to manage the resident's own financial affairs.

a. If, by written request signed by the resident, or by the authorized representative of a resident who has been adjudicated incompetent, the facility manages the resident's financial affairs, it shall have available for inspection a monthly accounting, and shall furnish the resident and the resident's authorized representative with a quarterly statement of the resident's account.

b. The resident shall have unrestricted access to such account at reasonable hours.

(19) If married, a resident shall enjoy privacy in visits by the resident's spouse, and, if spouses are both residents of the facility, they shall be afforded the opportunity where feasible to share a room, unless medically contraindicated.

(20) Each resident has the right of privacy in the resident's own room, and personnel of the facility shall respect this right by knocking on the door before entering the resident's room.

(21) Each resident has the right, personally, through other persons, or in combination with others to do any the following:

a. Exercise the resident's own rights.

b. Present grievances.

c. Recommend changes in facility policies or services on behalf of the resident's self or others.

d. Present complaints or petitions to the facility's staff or administrator, the Department of Health and Social Services, the protection and advocacy agency, or other persons or groups without fear of reprisal, restraint, interference, coercion, or discrimination.

(22) A resident may not be required to perform services for the facility.

(23) Each resident shall have the right to retain and use the resident's own personal clothing and possessions where reasonable, and shall have the right to security in the storage and use of such clothing and possessions.

(24) The facility must permit each resident to remain in the facility, and not transfer or discharge the resident from the facility, except as provided in § 1127 of this title.

(25) Each resident has the right to inspect all records pertaining to the resident, upon oral or written request, within 24 hours of notice to the facility. Each resident has the right to purchase photocopies of such records or any portion of them, at a cost not to exceed the community standard, upon written request and 2 working days' advance notice to the facility.

(26) Each resident shall be fully informed, in language the resident can understand, of the resident's rights and all rules and regulations governing resident conduct and the resident's responsibilities during the stay at the facility.

(27) Each resident has the right to choose a personal attending physician.

(28) Each resident has the right to examine the results of the most recent survey of the facility conducted by federal or state surveyors and any plan of correction in effect with respect to the facility.

(29) Each resident has the right to receive information from the protection and advocacy agency and agencies acting as client advocates and be afforded the opportunity to contact those agencies.

(30) Each resident shall be free from verbal, physical or mental abuse, cruel and unusual punishment, involuntary seclusion, withholding of monetary allowance, withholding of food, and deprivation of sleep.

(31) Each resident shall be free to make choices regarding activities, schedules, health care, and other aspects of the resident's life that are significant to the resident, as long as such choices are consistent with the resident's interests, assessments, and plan of care and do not compromise the health or safety of the individual or other residents within the facility.

(32) Each resident has the right to participate in an ongoing program of activities designed to meet, in accordance with the resident's individualized assessments and plan of care, the resident's interests and physical, mental, and psychosocial well-being.

(33) Each resident has the right to participate in social, religious, and community activities that do not interfere with the rights of other residents.

(34) Each resident shall receive notice before the resident's room or roommate is changed, except in emergencies. The facility shall endeavor to honor the room or roommate requests of the resident whenever possible.

(35) Each resident shall be encouraged to exercise the resident's own rights as a citizen of this State and the United States of America.

(36) Each resident has the right to request and receive information regarding minimum acceptable staffing levels as it relates to the resident's own care.

(37) Each resident has the right to request and receive the names and positions of staff members providing care to the resident.

(38) Each resident has the right to request and receive an organizational chart outlining the facility's chain of command for purposes of making requests and asserting grievances.

(39) Each resident has the right to compliance with the resident's advance health-care directive, power of attorney, Delaware Medical Orders for Scope of Treatment, or similar document in accordance with and subject to Chapter 49 of Title 12 and Chapter 25 of this title.

(40) If a resident is adjudicated incompetent, is determined to be incompetent by the resident's attending physician, or is unable to communicate, the resident's rights shall devolve to the resident's authorized representative, as established under any of the following:

a. An advance health-care directive.

b. A medical durable power of attorney for health-care decisions.

c. A court-appointed guardian under Chapters 39 and 39A of Title 12, in accordance with the authority granted by the appointing court.

d. A surrogate appointed under Chapter 25 of this title.

e. An individual who is otherwise authorized under applicable law to make the health-care decisions being made by execution of the DMOST form on the patient's behalf under Chapter 25A of this title.

61 Del. Laws, c. 373, § 2; 69 Del. Laws, c. 345, § 5; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 465, § 1; 75 Del. Laws, c. 387, § 1; 77 Del. Laws, c. 49, §§ 3-5; 77 Del. Laws, c. 201, §§ 6, 7; 79 Del. Laws, c. 203, § 1; 79 Del. Laws, c. 204, § 3; 81 Del. Laws, c. 206, § 24.;

Where consistent with the nature of each right in § 1121 of this title, all rights, particularly as they pertain to a resident adjudicated incompetent in accordance with state law, or a resident who is found medically incapable by the resident's own attending physician, or a resident who is unable to communicate with others, shall devolve to the resident's authorized representative, as established under any of the following:

(1) An advance health-care directive.

(2) A medical durable power of attorney for health-care decisions.

(3) A court-appointed guardian pursuant to Chapters 39 and 39A of Title 12, in accordance with the authority granted by the appointing court.

(4) A surrogate appointed under Chapter 25 of this title.

(5) An individual who is otherwise authorized under applicable law to make the health-care decisions being made by execution of the DMOST form on the patient's behalf under Chapter 25A of this title.

(6) A sponsoring agency or representative payee, except where the facility itself is the representative payee, selected under § 205(j) of the Social Security Act (42 U.S.C. 405(j)).

61 Del. Laws, c. 373, § 2; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 206, § 25.;

(a) Section 1121 of this title shall be posted conspicuously in a public place in long-term care facilities.

(b) Copies of § 1121 of this title shall be furnished to the resident upon admittance to the facility; all residents currently residing in the facility; and the authorized representative under § 1122 of this title. The long-term care facility shall retain in its files a statement signed by each person listed in this subsection that the person has received a copy of § 1122 of this title.

61 Del. Laws, c. 373, § 2; 81 Del. Laws, c. 206, § 26.;

(a) Each facility shall provide appropriate staff training to implement the bill of rights under § 1121 of this title.

(b) Rules and regulations implementing this subchapter shall be developed by the Department.

61 Del. Laws, c. 373, § 2; 81 Del. Laws, c. 206, § 27.;

(a) The Department shall independently investigate any grievance concerning long-term care facilities.

(b) Upon completion of an investigation, the Department shall report the findings to the complainants and to all other appropriate agencies of the State, county, or municipality as the case may be. If a grievance involves a protection and advocacy agency client, the findings shall be shared with the protection and advocacy agency.

61 Del. Laws, c. 373, § 2; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 201, § 8; 81 Del. Laws, c. 206, § 28.;

(a) All long-term care facilities shall, if possible, ascertain from a resident upon admission whether or not the resident has donated all or part of the resident's own body as an anatomical gift in a manner permitted by § 2713 of this title and the person, institution, or organization to which such gift has been made.

(b) All long-term care facilities, as required by regulation, shall maintain as part of a resident's permanent record the information required under this section and such other pertinent information about said anatomical gift which will facilitate the carrying out of the resident's wishes in the event of the resident's death.

(c) Upon the death of a resident who has made an anatomical gift, long-term care facilities shall make every reasonable effort to contact without delay the person, institution, or organization to which such gift has been made.

63 Del. Laws, c. 238, § 2; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 206, § 29.;

(a) The facility must permit each resident to remain in the facility and not transfer or discharge the resident from the long-term care facility unless at least 1 of the following criteria has been met:

(1) The transfer or discharge is both necessary for the resident's welfare and the resident's needs cannot be met in the facility with reasonable accommodations when assessed with due regard to the scope of the facility's license.

(2) The discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility.

(3) The transfer or discharge is appropriate because the safety of individuals in the facility is endangered by the clinical or behavioral status of the resident.

(4) The transfer or discharge is appropriate because the health of other individuals in the facility would otherwise be endangered.

(5) The resident has failed, after reasonable and appropriate notice, to pay for, or to have paid by Medicare, Medicaid, or third party, a stay at the facility leading to discharge provided that:

a. A resident who becomes eligible for Medicaid after admission to a facility may only be charged allowable charges under Medicaid.

b. A resident who has submitted the necessary paperwork for third-party payment may not be discharged if a final decision on the claim has not been issued.

(6) The facility ceases to operate.

(b) Documentation. — Transfers or discharges under this section must be documented in the resident's clinical record and must include all of the following:

(1) The basis for the transfer or discharge under subsection (a) of this section.

(2) In the case of a transfer or discharge under paragraph (a)(1) of this section, all of the following:

a. The specific needs that cannot be met in the facility.

b. The attempts made to meet those needs.

c. The services available at the receiving facility to meet those needs.

(3) The certification of the resident's personal attending physician that transfer or discharge is necessary under paragraph (a)(1) or (a)(2) of this section.

(4) A physician certification that transfer or discharge is necessary under paragraph (a)(3) or (a)(4) of this section.

(c) Before a long-term care facility transfers or discharges a resident, the facility must issue a written notice of the transfer or discharge to the resident or resident's authorized representative under § 1122 of this title and, if known, a family member or legal representative of the resident, whose content conforms to subsection (b) of this section.

(d) Timing of the notice of transfer or discharge.

(1) Except as permitted under paragraph (d)(3) of this section, a notice of discharge must be issued by the long-term facility at least 30 days before the resident is transferred or discharged.

(2) A long-term care facility may not discharge a resident during the pendency of administrative proceedings implementing a resident's appeal of a discharge.

(3) Notice must be issued as soon as practicable before transfer or discharge when 1 of the following standards is met:

a. An immediate transfer or discharge is required by the resident's urgent medical needs supported by the certification required under subsection (b) of this section.

b. There is a significant and immediate threat to the health or safety of other individuals in the long-term care facility as documented under paragraph (b)(3) or (b)(4) of this section.

c. The resident was admitted solely on a respite basis not to exceed 14 days or as an emergency placement by the Department not to exceed 21 days.

(e) The written notice described in paragraph (d)(3) of this section must include all of the following in language comprehensible to the ordinary layperson subject to revision to meet known special language considerations of the recipient:

(1) A detailed individualized explanation of each reason for the transfer or discharge.

(2) The effective date of transfer or discharge.

(3) The location to which the resident is transferred or discharged.

(4) The time frame and procedure to appeal the action to the State.

(5) The name, address, and telephone number of the state Long-Term Care Ombudsperson and Division.

(6) The name, address, and telephone number of the protection and advocacy agency for facility residents with developmental disabilities or mental illness.

(f) In administrative and judicial proceedings implementing a resident's appeal of a transfer or discharge, resident rights and protections conferred by applicable federal law must be considered.

(g) For any transfer or discharge authorized by subsection (a) of this section, the long-term care facility shall develop a plan with the participation of the resident and resident's authorized representative under § 1122 of this title, if any, to assist with orientation and the safe and orderly transfer or discharge from the facility.

(h)(1) If a resident is transferred out of a long-term care facility to an acute care facility or other specialized treatment facility all of the following apply:

a. The long-term care facility must accept the resident back when the resident no longer needs acute or specialized care and there is space available in the facility.

b. If no space is available, the resident must be accepted into the next available bed.

(2) For purposes of this subsection, "specialized treatment facility" means a health-care setting including, settings licensed or certified pursuant under this chapter or Chapter 22, 50, or 51 of this title.

81 Del. Laws, c. 206, § 30.;