TITLE 16

Health and Safety

Regulatory Provisions Concerning Public Health

CHAPTER 11. LONG-TERM CARE FACILITIES AND SERVICES

Subchapter III. Abuse, Neglect, Mistreatment, or Financial Exploitation of Residents or Patients


As used in this subchapter:

(1) "Abuse" means the infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish and includes all of the following:

a. Physical abuse. — "Physical abuse" means the unnecessary infliction of pain or injury to a patient or resident. "Physical abuse" includes hitting, kicking, punching, slapping, or pulling hair. If any act constituting physical abuse has been proven, the infliction of pain is presumed.

b. Sexual abuse. — "Sexual abuse" includes any sexual contact, sexual penetration, or sexual intercourse, as those terms are defined in § 761 of Title 11, with a patient or resident by an employee or volunteer working at a facility. It is not a defense that the sexual contact, sexual penetration, or sexual intercourse was consensual.

c. Emotional abuse. — "Emotional abuse" means the use of oral, written, or gestured language that includes disparaging and derogatory terms to patients, residents, their families, or within their hearing distance, regardless of their age, ability to comprehend, or disability. "Emotional abuse" includes the violation of resident rights and privacy through the posting of inappropriate materials on social media. "Emotional abuse" includes all of the following: ridiculing, demeaning, humiliating, or cursing at a patient or resident; punishment or deprivation; or threatening a patient or resident with physical harm.

d.1. Medication diversion. — "Medication diversion" means the knowing or intentional interruption, obstruction, or alteration of the delivery, or administration of a prescription drug to a patient or resident, if both of the following apply:

A. The prescription drug was prescribed or ordered by a licensed independent practitioner for the patient or resident.

B. The interruption, obstruction, or alteration occurred without the prescription or order of a licensed independent practitioner.

2. "Medication diversion" does not mean conduct performed by any of the following:

A. A licensed independent practitioner or licensed health-care professional who acted in good faith within the scope of the individual's practice or employment.

B. An individual acting in good faith while rendering emergency care at the scene of an emergency or accident.

(2), (3) [Repealed.]

(4) "Facility" means all of the following:

a. Any facility required to be licensed under this chapter.

b. Any facility operated by or for the State which provides long-term care residential services.

c. The Delaware Psychiatric Center and hospitals licensed by the Department under §§ 5001 and 5136 of this title.

d. Any hospital as defined under Chapter 10 of this title. "Hospital" is included in the definition of facility only for the purposes and application of this section and § 1136 of this title.

(5) "Financial exploitation" means the illegal or improper use of a patient's or resident's resources or financial rights by another person, whether for profit or other advantage.

(6) [Repealed.]

(7) "High managerial agent" means an officer of a facility or any other agent in a position of comparable authority with respect to the formulation of the policy of the facility or the supervision in a managerial capacity of subordinate employees.

(8) "Investigation" means the collection of evidence in response to an allegation of abuse, neglect, mistreatment, or financial exploitation of a resident or patient to determine if that resident or patient has been abused, neglected, mistreated, or financially exploited. The Department shall develop protocols for its investigations which focus on ensuring the safety and well-being of the patient or resident and which satisfy the requirements of this chapter.

(9) "Licensed independent practitioner" means a physician or an individual licensed and authorized to write medical orders under Chapter 17 or Chapter 19 of Title 24 and who is providing care for the patient or resident or is overseeing the health care provided to the resident.

(10) "Mistreatment" means the inappropriate use of medications, isolation, or physical or chemical restraints on or of a patient or resident.

(11) "Neglect" means the failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness. Neglect includes all of the following:

a. Lack of attention to physical needs of the patient or resident including toileting, bathing, meals, and safety.

b. Failure to report patient or resident health problems or changes in health problems or changes in health condition to an immediate supervisor or nurse.

c. Failure to carry out a prescribed treatment plan for a patient or resident.

d. A knowing failure to provide adequate staffing which results in a medical emergency to any patient or resident where there has been a documented history of at least 2 prior cited instances of such inadequate staffing within the past 2 years in violation of minimum maintenance of staffing levels as required by statute or regulations promulgated by the Department, all so as to evidence a wilful pattern of such neglect.

(12) "Person" means a human being and, where appropriate, a public or private corporation, an entity, an unincorporated association, a partnership, a government, or governmental instrumentality.

(13) [Repealed.]

(14) "Prescription drug" means a drug required by federal or state law or regulation to be dispensed only by a prescription, which means a lawful written or verbal order of a practitioner for a drug, including finished dosage forms and active ingredients, subject to § 503(b) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 353(b)).

65 Del. Laws, c. 442, § 1; 70 Del. Laws, c. 222, § 3; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 550, § 1; 71 Del. Laws, c. 487, § 1; 72 Del. Laws, c. 120, §§ 1-4; 77 Del. Laws, c. 201, § 9; 78 Del. Laws, c. 30, § 1; 79 Del. Laws, c. 193, § 1; 80 Del. Laws, c. 404, § 1; 81 Del. Laws, c. 206, § 32; 81 Del. Laws, c. 209, §§ 2, 14.;

(a)(1) Any employee of a facility or person who provides services to a patient or resident of a facility on a regular or intermittent basis who has reasonable cause to believe that a patient or resident in a facility has been abused, mistreated, neglected, or financially exploited shall immediately report such abuse, mistreatment, neglect, or financial exploitation to the Department by oral communication. A written report shall be filed by the employee or person providing services to a patient or resident of a facility within 48 hours after the employee or person providing services to a patient or resident of a facility first gains knowledge of the abuse, mistreatment, neglect or financial exploitation.

(2) In addition to the persons required to report abuse, neglect, mistreatment, or financial exploitation under paragraph (a)(1) of this section, any other person, including a patient or facility resident, may contact the Department to report any complaint concerning the health, safety, and welfare of patients or facility residents.

(3) The Department shall inform a person making a report under paragraph (a)(1) or (a)(2) of this section of the person's right to obtain information concerning the disposition of the report. Such person shall receive, if requested, information on the general disposition of the report at the conclusion of the investigation.

(4) If the Department does not have jurisdiction over the report, the Department shall so advise the person making the report under paragraph (a)(1) or (a)(2) of this section and shall promptly refer the person to the appropriate agency.

(b) Any person required by subsection (a) or (c) of this section to make an oral and a written report who fails to do so is to be fined not more than $1,000 or imprisoned not more than 15 days, or both. In any action brought under this section, if a court finds a violation, the court may award costs and attorneys' fees.

(c) In addition to those persons subject to subsection (a) of this section, any other person shall make such a report, if the person has reasonable cause to believe that a patient or resident of a facility has been abused, mistreated, neglected, or financially exploited. Such reports are confidential and the reporting person cannot be compelled to do either of the following:

(1) Notify the facility, care provider, or individual implicated in the event.

(2) Provide information regarding the reported abuse, neglect, mistreatment, or financial exploitation to the facility, care provider, or individual implicated in the event.

(d) Any person who intentionally makes a false report under this subchapter is guilty of a class A misdemeanor.

(e) Any correspondence or other written communication from a resident or patient to the Department, the Attorney General's office, the protection and advocacy agency, or a law-enforcement agency must, if delivered to or received by a facility, be promptly forwarded, unopened, by the facility to the agency to which it is written. Violation of this subsection is punishable by a civil penalty not to exceed $1,000 per violation.

(f) Any correspondence or other written communication from the Department, the Attorney General's office, the protection and advocacy agency or a law-enforcement agency to a resident or patient shall, if delivered to or received by the facility, be promptly forwarded, unopened, by the facility to such resident or patient. Violation of this subsection is punishable by a civil penalty not to exceed $1,000 per violation.

65 Del. Laws, c. 442, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 292, § 1; 71 Del. Laws, c. 487, §§ 3, 5, 6; 74 Del. Laws, c. 196, § 1; 77 Del. Laws, c. 201, § 10; 81 Del. Laws, c. 206, § 33.;

The reports required under this subchapter shall contain all of the following information:

(1) The name and sex of the patient or resident.

(2) The name and address of the facility in which the patient or resident resides.

(3) The age of the patient or resident, if known.

(4) The name and address of the reporter and where the reporter can be contacted.

(5) Any information relative to the nature and extent of the abuse, mistreatment, financial exploitation, or neglect and, if known to the reporter, any information relative to prior abuse, mistreatment, financial exploitation, or neglect of such patient or resident.

(6) The circumstances under which the reporter became aware of the abuse, mistreatment, financial exploitation, or neglect.

(7) What action, if any, was taken to treat or otherwise assist the patient or resident.

(8) Any other information which the reporter believes to be relevant in establishing the cause of such abuse, mistreatment, financial exploitation, or neglect.

65 Del. Laws, c. 442, § 1; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 206, § 34.;

(a) The Department shall ensure that patients or residents are afforded the same rights and protections as other individuals in the State.

(b) [Repealed.]

(c) The Department shall establish and maintain a 24-hour statewide toll-free telephone report line operating at all times and capable of receiving reports of alleged abuse, neglect, mistreatment, and financial exploitation.

(d) Upon receipt of an allegation of abuse, neglect, mistreatment, or financial exploitation, the Department shall do all of the following:

(1) Receive and maintain reports in a computerized central data base.

(2) Acknowledge all complaints, when authorized by the person making the report. The acknowledgement shall identify other relevant remedial agencies, including the protection and advocacy agency, Office of the Long-Term Care Ombudsperson, and victim rights resource organizations.

(3) Forward complaints to the appropriate Department staff who shall determine, through the use of standard operating procedures developed by the Department, whether an investigation should be initiated to respond to the complaint. The protocols for making this determination shall be developed by the Department and shall give priority to ensuring the well-being and safety of residents and patients.

(4) Begin the investigation within 24 hours of receipt of any report or complaint that alleges any of the following:

a. A resident's or patient's health or safety is in imminent danger.

b. A resident or patient has died due to alleged abuse, neglect, or mistreatment.

c. A resident or patient has been hospitalized or received medical treatment due to alleged abuse, neglect, or mistreatment.

d. If the report or complaint alleges the existence of circumstances that could result in abuse, neglect, or mistreatment and that could place a resident's or patient's health or safety in imminent danger.

e. A resident or patient has been the victim of financial exploitation or risk thereof and exigent circumstances warrant an immediate response.

(5) Except in situations outlined in paragraph (d)(4) of this section, initiate and conclude an investigation within 10 days of receiving a report or complaint unless extenuating facts warrant a longer time period to complete the investigation.

(6) Contact the appropriate law-enforcement agency immediately upon receipt of any complaint requiring an investigation under this section and shall provide the police with a detailed description of the complaint received.

a. The appropriate law-enforcement agency shall conduct its investigation or provide the Department within a reasonable time period, an explanation detailing the reasons why it is unable to conduct the investigation.

b. The Department may defer its own investigation in these circumstances until it receives appropriate guidance from the Attorney General's Office and the relevant police agency with respect to how to proceed with its investigation thereby assuring a coordinated investigation.

c. Notwithstanding any provision of the Delaware Code to the contrary, to the extent the law-enforcement agency with jurisdiction over the case is unable to assist, the Department may request that the Delaware State Police exercise jurisdiction over the case and, upon such request, the Delaware State Police may exercise such jurisdiction.

(7) Have the authority to secure a medical examination of a long-term care facility resident or patient upon the consent of the resident or patient without the consent of the long-term care facility if the resident or patient has been reported to be a victim of abuse, neglect, or mistreatment; provided, that such case is classified as an investigation under this subchapter.

(8) When a written report of abuse, neglect, mistreatment, or financial exploitation is made by a person required to report under § 1132(a) of this title, the Department shall contact the person who made such report within 48 hours of the receipt of the report in order to ensure that full information has been received and to obtain any additional information, including medical records, which may be pertinent.

(9) Conduct an investigation involving all reports which, if true, would constitute criminal offenses pursuant to any of the following provisions of Title 11: §§ 601, 602, 603, 604, 611, 612, 613, 621, 625, 626, 627, 631, 632, 633, 634, 635, 636, 645, 763, 764, 765, 767, 768, 769, 770, 771, 772, 773, 774, 775, 791, 841, 842, 843, 844, 845, 846, 848, 851, 861, 862 and 908 or an attempt to commit any such crime.

(10) Develop protocols to ensure that it shall conduct its investigation in coordination with the relevant law-enforcement agency. The primary purpose of the Department's investigation shall be the protection of the resident or patient.

(11) Do any of the following when investigating abuse, neglect, mistreatment, or financial exploitation reports:

a. Make unannounced visits to the facility, as required, to determine the nature and cause of the alleged abuse, neglect, mistreatment, or financial exploitation.

b. Interview available witnesses identified by any source as having personal knowledge relevant to the reported abuse, neglect, mistreatment, or financial exploitation.

c. Conduct interviews in private unless the witness expressly requests that the interview not be private.

d. Write an investigation report that includes all of the following:

1. The investigator's personal observations.

2. A review of the medical and all other relevant documents and records.

3. A summary of each witness statement.

4. A statement of the factual basis for the findings for each incident or problem alleged in the complaint.

(12)-(16) [Repealed.]

(17) Before the completion of an investigation, file a petition for the temporary care and protection of the resident or patient if the Department determines that immediate removal is necessary to protect the resident or patient from further abuse, neglect, mistreatment, or financial exploitation.

(18) Upon completing an investigation of a complaint, the Department shall take 1 or more of the following courses of action, as appropriate:

a. If representatives of the Department, the Attorney General's Office or the appropriate law-enforcement agency are unable to substantiate a complaint that applicable laws or regulations have been violated the Department or appropriate law-enforcement agency shall so advise the complainant and the facility, agency, or individual against which the complaint was made.

b. If Department representatives are able to substantiate a complaint that applicable laws or regulations have been violated, the Department shall take appropriate enforcement action.

1. An enforcement action may include instituting actions by the Department for injunctive relief or other relief deemed appropriate.

2. The Office of the Attorney General shall provide legal advice and assist the Department to institute an enforcement action.

c. If the Department discovers a violation of federal laws or regulations or rules administered by any other government agency, the Department shall refer the matter directly to the appropriate government agency for an enforcement action.

= p5;4 d.-f. [Repealed.]

(19) Protect the privacy of the long-term care resident or patient and the patient or resident's family.

a. The Department shall establish guidelines concerning the disclosure of information relating to complaints and investigations regarding abuse, neglect, mistreatment, or financial exploitation involving that resident or patient.

b. The Department may require persons to make written requests for access to records maintained by the Department.

c. Records maintained for investigations conducted under this section are not public records under Chapter 100 of Title 29 and the Department may only release information to persons who have a legitimate public safety need for such information and such information must be used only for the purpose for which it is released under a user agreement with the Department.

(e) The protection and advocacy agency is authorized to complement the Department's complaint resolution system through monitoring, investigation, and advocacy on behalf of facility patients or residents. In furtherance of this authority, protection and advocacy agency representatives may engage in all of the following functions:

(1) Solicit and receive oral and written reports and complaints of abuse, neglect, mistreatment, or financial exploitation of facility patients or residents.

(2) Access a facility.

(3) Interview patients, residents, facility staff, and agents.

(4) Inspect and copy records pertaining to the patient or resident with valid consent or as otherwise authorized by federal law.

(f) The Department may develop protocols with the protection and advocacy agency to facilitate coordination whenever both agencies have initiated an overlapping investigation.

(g) The immunities and protections compiled in § 1135 of this title apply to persons offering reports or testimony to initiate or support protection and advocacy agency investigation or advocacy.

(h) Appointment of special investigators; powers and duties.

(1) The Secretary of the Department may appoint qualified persons to be special investigators.

a. Such investigators hold office at the pleasure of the Secretary.

b. Any individual appointed under this section must have all of the following qualifications:

1. A minimum of 10 years experience as a "police officer," as that term is defined in § 1911(a) of Title 11.

2. Significant investigatory experience while working as a police officer.

3. Be in good standing with the previous or present law-enforcement agency where such individual was or is employed,

4. Such other qualifications deemed appropriate by the Secretary.

(2) Special investigators appointed under this section may conduct investigations of abuse, neglect, mistreatment, or financial exploitation of patients and residents of facilities and adults who are impaired as defined in § 3902 of Title 31 anywhere in this State as directed by the Department and shall have the power to make arrests and serve writs anywhere in this State.

a. In conducting such investigations, the special investigators have the statewide powers enumerated under § 1911 of Title 11 and such other powers as conferred by law on police officers, but such powers are limited to offenses involving abuse, neglect, mistreatment, or financial exploitation of patients and residents of long-term care facilities and adults who are impaired anywhere in this State as directed by the Department.

b. To the extent possible, special investigators under this section may consult with the police agency having jurisdiction and the Department prior to making an arrest and shall do so in all cases after making such arrest.

(3) The Secretary of the Department shall fix the salary of special investigators within the appropriations made to the Department.

(4) Special investigators shall assist in the training of other Department staff.

(i) Upon receipt of any report under paragraph (d)(5) of this section, the law-enforcement agency having jurisdiction shall conduct a full and complete criminal investigation based on their departmental policies and shall assess probable cause and effectuate arrests when appropriate.

(1) The Attorney General's Office or other law-enforcement agency conducting the investigation shall keep the Department informed of the case status and all major decisions under memoranda of understanding between the Department and the Attorney General's Office and other relevant law-enforcement agencies entered into under subsection (j) of this section.

(2) The Department of Justice shall keep the Department well informed of the case status and all major decisions, including the disposition of criminal charges and the specifics of any sentencing order rendered.

(j) The Department, the Office of the Attorney General, and other law-enforcement agencies shall develop memoranda of understanding under this subchapter which provide for timely notification, co-investigation, referral of cases, including automatic referral in certain cases, and ongoing coordination in order to keep each other apprised of the status of their respective investigations. The memoranda of understanding may be amended as needed.

(k) If the Department suspects or discovers information indicating the commission of violations of standards of professional conduct by facilities licensed under this chapter or by staff employed by such facilities, the Department shall immediately contact the Office of the Attorney General and the relevant professional licensing board.

(l ) The Department and the Attorney General's Office shall cooperate with law-enforcement agencies to develop training programs to increase the effectiveness of Department personnel, Attorney General's Office personnel, and law-enforcement officers in investigating suspected cases of abuse, neglect, mistreatment, or financial exploitation.

(m) In the event that a criminal prosecution for abuse, neglect, mistreatment, or financial exploitation is initiated by the Attorney General's Office based on a report under this subchapter, and incarceration of the individual who is the subject of the report is ordered by the court, the Attorney General's Office shall keep the Department informed of actions taken by the court which result in the release of any such individual, provided that the Attorney General's Office is represented at such a hearing.

(n) In the event that a criminal prosecution for abuse, neglect, mistreatment, or financial exploitation is initiated by the Attorney General's Office against a person employed by or associated with a facility or organization required to be licensed or whose staff are required to be licensed under Delaware law, the Attorney General shall notify the Department within 48 hours and the Department shall then notify the individual's employer as follows:

(1) When such individualis charged with having committed at least 1 felony offense involving an allegation of abuse, neglect, mistreatment, or financial exploitation.

(2) Upon an adjudication of guilt of such person for any misdemeanor or violation, when such offense involved abuse, neglect, mistreatment, or financial exploitation.

65 Del. Laws, c. 442, § 1; 70 Del. Laws, c. 222, § 4; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 487, § 4; 72 Del. Laws, c. 3, § 4; 74 Del. Laws, c. 212, § 1; 77 Del. Laws, c. 201, §§ 11-14; 77 Del. Laws, c. 318, § 6; 78 Del. Laws, c. 179, § 164; 81 Del. Laws, c. 206, § 35; 81 Del. Laws, c. 209, §§ 3, 14.;

(a) A person making any oral or written report under this subchapter is not liable in any civil or criminal action by reason of such report where such report was made in good faith or under the reasonable belief that such abuse, financial exploitation, mistreatment, or neglect has taken place.

(b) A facility may not discharge, or in any manner discriminate or retaliate against any person, by any means whatsoever, who in good faith makes or causes to be made, a report under this subchapter, or who testifies or who is about to testify in any proceeding concerning abuse, financial exploitation, mistreatment, or neglect of patients or residents of a facility.

(c) Any facility which discharges, discriminates, or retaliates against a person because the person has reported, testified, or is about to testify concerning abuse, financial exploitation, mistreatment, or neglect of patients or residents is liable to such person for treble damages, costs, and attorney fees. If a facility discharges, demotes, or retaliates by any other means against a person after the person made a report, testified, or was subpoenaed to testify as a result of a report authorized under this subchapter, there is a rebuttable presumption that such facility discharged, demoted, or retaliated against such person as a result of such report or testimony.

(d) This section does not apply to any person who has engaged in the abuse, financial exploitation, mistreatment, or neglect of a patient or resident.

65 Del. Laws, c. 442, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 201, §§ 15, 16; 81 Del. Laws, c. 206, § 36.;

(a) Any person who knowingly or recklessly abuses, mistreats, or neglects a patient or resident of a facility is guilty of a class A misdemeanor.

(1) If the abuse involves sexual contact such person is guilty of a class G felony.

(2) If the abuse, mistreatment, or neglect results in serious physical injury, sexual penetration, or sexual intercourse, such person is guilty of a class C felony.

(3) If the abuse, mistreatment, or neglect results in death, then the person is guilty of a class A felony.

(b) Any person who knowingly causes medication diversion of a patient or resident, is guilty of the following:

(1) A class G felony.

(2) A class F felony, if committed by a health-care professional.

(c) Any person who knowingly commits financial exploitation of a patient's or resident's resources is guilty of the following:

(1) A class A misdemeanor if the value of the resources is less than $1,000.

(2) A class G felony if the value of the resources is $1,000 or more.

(d) Any member of the board of directors or a high managerial agent who knows that patients or residents of the facility are being abused, mistreated, neglected, or financially exploited and fails to promptly take corrective action is guilty of a class A misdemeanor.

(e) Nothing in this section shall preclude a separate charge, conviction, and sentence for any other crime set forth in this title, or in the Delaware Code.

65 Del. Laws, c. 442, § 1; 72 Del. Laws, c. 120, §§ 5, 6; 78 Del. Laws, c. 30, §§ 2, 3; 79 Del. Laws, c. 193, § 2; 81 Del. Laws, c. 206, § 37.;

Upon a finding of abuse, mistreatment or neglect, or failure to report such instances by a licensed or registered professional, the Department or the Attorney General shall notify the appropriate licensing or registration board. If, after a hearing, a licensed or registered professional is found to have abused, mistreated or neglected a patient or resident or has failed to report such instance, the appropriate board shall suspend or revoke such person's license.

65 Del. Laws, c. 442, § 1.;

Upon a finding that abuse, mistreatment, financial exploitation, or neglect has occurred in a facility, if it is determined that a member of the board of directors or a high managerial agent knew that patients or residents were abused, mistreated, financially exploited, or neglected and failed to promptly take corrective action, the Department must suspend or revoke the facility's license.

65 Del. Laws, c. 442, § 1; 81 Del. Laws, c. 206, § 38.;

Nothing in this subchapter may be construed to mean that a patient or resident is abused, mistreated, or neglected for the sole reason the patient or resident relies upon, or is being furnished with, treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, nor may anything in this subchapter be construed to authorize or require any medical care or treatment over the implied or express objection of said patient or resident.

65 Del. Laws, c. 442, § 1; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 206, § 39.;

The Superior Court shall have original and exclusive jurisdiction over violations of this subchapter.

65 Del. Laws, c. 442, § 1.;